Wednesday, May 13, 2020
The Supreme Court heard oral arguments today in Chiafalo v. Washington and Colorado v. Baca, both testing whether and how states can control the votes of their presidential electors. Both cases involved "faithless electors"--electors who, in violation of state law, voted for individuals in the 2016 election who did not win the state's popular vote.
Maybe the only thing that was clear from the arguments today is that . . . nothing is clear. Text doesn't answer the question. Original understanding is equivocal. Past practice can be manipulated by both sides. Even the practical effect of a ruling either way is uncertain, or at least reasonably disputed. The Court searched for a limiting principle from both sides, in both cases, but came up blank.
All this indeterminacy only served to illustrate how screwed up our system of electing a president really is. As the arguments revealed, that system, the Electoral College, appears to have no firm or settled basis in any variety of democratic theory, or any theory of federalism. If it did, we'd at least have some guidance on the question.
Given the indeterminacy, we might expect the Court to punt on cases like these under the political question doctrine. Indeed, the issue bears a remarkable resemblance to partisan gerrymandering--no settled constitutional test, could benefit or harm either major party--on which the Court declined to rule most recently in Rucho v. Common Cause. If anything, the text, history, and precedent are even less determinate here than in partisan gerrymandering cases.
So: Look for the Court to leave things as they are--to allow the states to control their electors, or allow the states to set them free, as the states wish. As Justice Kagan asked, "What would you say if I said that if I think that there's silence, the best thing to do is leave it to the states and not impose any constitutional requirement on them?"
Check out Cato's Daily Podcast on the question Is the Supreme Court Ready to End Qualified Immunity? It comes on the heels of a Reuters investigation showing how the doctrine shuts down constitutional claims. It also comes when the Court'll consider whether to take up the issue.
The Fifth Circuit yesterday upheld the state sovereign immunity waiver for state recipients of Title IX funding. The ruling means that state recipients of Title IX can be sued for monetary damages in federal court for violations of Title IX.
That's the same result that's long been on the books in the Fifth Circuit and all others to have considered the question.
But this case is notable because it rejects a novel claim by Louisiana (LSU was the defendant) that the Supreme Court's Medicaid ruling in NFIB v. Sebelius changed the landscape as to Title IX waiver. In particular, the state claimed that under NFIB the Title IX waiver was unduly coercive.
Not so, said the court. The court said that NFIB "does not unequivocally alter Dole's conditional-spending analysis," under which the Court previously upheld the Title IX waiver. Moreover, "[t]he threat of LSU losing what amounts to just under 10% of its funding is more like the 'relatively mild encouragement' of a state losing 5% of its highway funding . . . than the 'gun to the head' of a state losing all of its Medicaid funding [in NFIB]."
Tuesday, May 12, 2020
The Supreme Court heard oral arguments today in Trump v. Mazars and Trump v. Vance, the cases testing congressional authority and a local D.A.'s authority, respectively, to subpoena President Trump's financial records from his accounting firm and bank.
As usual, it's hard to say where the Court is going to land based on oral arguments. (It might be even harder than usual, given the teleconference format.) But based on questioning, it seems likely that the Court in Mazars could issue a split decision, upholding one or two subpoenas while overturning the other(s). In both cases, the Court'll seriously balance the interference (or not) of the subpoenas with the President's ability to do the job. Look for that balance to split along conventional ideological lines, with Chief Justice Roberts right in the center.
Another possibility: the Court could set a new standard for these subpoenas and remand for reconsideration.
Whatever the Court does, two things seem very likely. First, the rulings will have a dramatic effect on the separation of powers and checks and balances, likely shifting power and immunities (to some degree, more or less) to the President. Second, likely the only way we see President Trump's financial records and taxes before the 2020 election is if the Court outright upholds one of the House Committee's subpoenas. (Even if the Court rules against the President in Vance, grand jury secrecy rules mean that we probably may not see those records until after the election.)
The two cases raise very different questions. Mazars is all about the separation of powers--congressional authority to issue subpoenas to third parties for the President's personal information--while Vance is about federalism and presidential immunities--a local prosecutor's authority, through a grand jury, to subpoena that same material, and the President's claim of absolute immunity from any criminal process.
Despite the differences, though, much of the arguments in both cases focused on how the subpoenas, wherever they came from, would, or would not, "interfere" with the President's execution of the Article II powers. The President's attorneys argued repeatedly that allowing subpoenas in this case could open the door to free-flowing subpoenas from every congressional committee and every local prosecutor, and would thus impede the President's ability to do the job. On the other hand, attorneys for the Committees and the D.A. noted that these particular subpoenas are directed at a third party and don't require the President to do anything.
Look for the Court to incorporate this into its reasoning--the extent to which the subpoenas interfere with the President's job, either in fact (where there's no real evidence that President Trump has actually been distracted by these subpoenas) or in theory (where we can imagine that a future President might be distracted by a flurry of future subpoenas).
Questions in Mazars also focused on the three committees' precise authorities and reasons for their subpoenas. Did they have authority under the House's standing rules? Did the House's subsequent "ratification" of them suffice to demonstrate that the whole House supported them? Were the reasons within a "legitimate legislative purpose"?
These questions suggest that the Court may examine each subpoena separately, and could well uphold one or two, while overturning the other(s).
We also heard some pretty breathtaking claims by the President's attorneys about the scope of presidential powers and immunities. In Mazars we heard that Congress can't regulate the President at all (even if it can regulate other offices in the Executive Branch), and therefore can't investigate (and subpoena) material to help enact law that would regulate the President. In Vance, we heard that the President is absolutely immune from all criminal processes.
The government, weighing in as amicus in both cases in support of the President, dialed back the President's most extreme and categorical positions, and argued instead for a more stringent test for subpoenas directed at the President's personal information. This could give the Court an attractive "middle" position. (This isn't really a middle position. But the President's extreme claims make the government's position look like a middle position.)
On the other side, Congress's attorney in Mazars struggled to identify a limit to Congress's power to subpoena--an issue that several Justices thumped on. The lack of a limiting principle could come back to bite the House Committees, even if these particular subpoenas might've come well within a reasonable limiting principle. That's because if the Court rules for the Committees, it'll have to say why--knowing that the reason will apply to all future congressional subpoenas. If the Committees can't give the Court a limiting principle, the Court could conclude that they see no limit on their authority. And that may be reason enough for at least some of the Justices to rule against them.
Monday, May 11, 2020
The United States Supreme Court heard oral arguments (telephonically) in the consolidated cases of Our Lady of Guadalupe School v. Morrisey-Berru and St. James School v. Biel.
Recall that these cases involve an application of the First Amendment's "ministerial exception" first accepted by the Court in 2012 in Hosana-Tabor Evangelical Lutheran Church and School v. EEOC. In the unanimous decision in Hosanna-Tabor, the Court found that the school teacher Cheryl Perich was tantamount to a minister. Thus, under both Religion Clauses of the First Amendment, as a "minister" her employment relations with her church school employer were eligible for a "ministerial exception" to the otherwise applicable employment laws, in that case the Americans with Disabilities Act.
But how far such this extend and who should qualify as a "ministerial" employee subject to the exemption from employment laws? The factors that courts have derived from Hosana-Tabor include:
- (1) whether the employer held the employee out as a minister by bestowing a formal religious title;
- (2) whether the employee’s title reflected ministerial substance and training;
- (3) whether the employee held herself out as a minister; and
- (4) whether the employee’s job duties included “important religious functions.”
Throughout the oral argument, the question was which of these factors should be the test. Morgan Ratner, on behalf of the United States as amicus curiae argued that the sole factor of the employee performing an "important religious function" should be the test. And yet, the very determination of whether an employee was performing "important religious functions" implicates an Establishment Clause issue should the court make such determinations. Indeed, Justice Gorsuch pressed on whether the court should simply accept the religious organization's statement that it had a sincere religious belief.
Nevertheless, the United States argued that this "important religious functions" factor should govern, even if the employee was not terminated for a religious reason, but — as is the allegation in these cases — for a health issue or for age discrimination. Both Justices Ginsburg and Sotomayor repeated the broadness of the exemption sought. And further, the fact that the teacher need not share religious identity with the organization should not be relevant to a determination of "important religious functions":
KAGAN: [A]nd if a position can be filled by any old person, not by a member of a faith, isn't that a pretty good sign that the employee doesn't have that special role within the religious community?
MS. RATNER: No, Justice Kagan, I don't think so. And -- and there are really several reasons. The -- the most important one is that's essentially a religious judgment about who is qualified to perform certain important religious functions and how much of the creed of that religion you need to share to perform that function.
Arguing for the teachers who had been terminated, Jeffrey Fisher pointed out the number of teachers employed in religious schools, and the number of other employees in religious hospitals. Fisher argued the expansiveness of the religious organization's argument:
So it really is a sea change – even as to teachers, leaving everything else aside, it is truly a sea change that is being requested by the other side here today in terms of how teachers and schools are classified and whether they have any employment rights at all or -- or, in fact, whether at least if you follow the way the lower courts have -- have implemented the ministerial exception, you basically have employment law-free zones in all religious schools.
Fisher also contended that many other laws were at stake, not only discrimination laws, but wage and hour and equal pay acts, as well as teacher credentialing laws including specific provisions such as criminal background checks.
Thus, while the ministerial exemption as rooted in the free exercise and establishment clauses of the First Amendment originally excepted only "ministers," there is a chance that it will be broadened to include all - - - or almost all - - - employees at religious organizations.
The Supreme Court will hear oral argument tomorrow in Trump v. Vance, the case testing whether the President is immune from a state grand jury subpoena for his records that have nothing to do with his official duties. Here's my Preview, from the ABA Preview of United States Supreme Court Cases, with permission:
In the summer of 2018, the New York County District Attorney’s Office (the Office) opened an investigation into possible criminal misconduct in activities connected to the Trump Organization. The Office obtained information about transactions and tax strategies by individuals and organizations that raised the prospect that a continuing pattern of criminal activity might have occurred within the Office’s jurisdiction and within the statute of limitations. Importantly, the Office has not eliminated President Trump himself as a potential target.
These transactions include the now-familiar “hush money” payments during the 2016 presidential campaign that President Trump’s attorney, Michael Cohen, paid to two women with whom President Trump had extra-marital affairs. Cohen admitted that he violated campaign finance laws in coordination with, and at the direction of, a person later identified as President Trump. Cohen pleaded guilty to the charges and is now serving a prison sentence.
Around the time of Cohen’s guilty plea, at the request of federal prosecutors and in order to avoid disruption of the ongoing federal investigation, the Office deferred its own investigation. After the Office learned in July 2019 that the federal investigation had concluded without any further charges, the Office then resumed its investigation.
On August 1, 2019, the Office served the Trump Organization with a grand jury subpoena for records and communications concerning certain financial transactions. The Office later informed the Trump Organization’s attorney that the subpoena also required production of certain tax returns. Over the next several months, the Trump Organization produced responsive documents, but not the tax returns.
On August 29, 2019, the Office served a grand jury subpoena on Mazars USA, LLP, President Trump’s accounting firm, for financial and tax records from January 1, 2011, to the date of the subpoena, including records for President Trump himself and entities he owned before becoming President. The Office largely patterned the Mazars subpoena on a similar subpoena to Mazars issued by the House Committee on Oversight and Reform. The Office’s Mazars subpoena does not seek any official government communications or involve any official presidential conduct.
Soon after the Office issued the Mazars subpoena, the Trump Organization informed the Office that they believed that the request for tax records implicated constitutional considerations. The Office agreed to temporarily suspend the tax portion of the subpoena to allow the Trump Organziation to challenge it.
President Trump then sued the Office and Mazars, seeking preliminary injunctive relief to stop Mazars from complying with the subpoena. (The “Vance” in the case name refers to Cyrus R. Vance, Jr., District Attorney of the County of New York.) President Trump argued that as sitting President he enjoyed absolute immunity from any form of “criminal process” or “investigation,” including a subpoena issued to a third party like Mazars.
The district court dismissed the case, ruling that it belonged in state court, not federal court. Alternatively, the district court denied injunctive relief, holding that the President’s claim of absolute immunity from criminal process “finds no support in the Constitution’s text or history” or in the Court’s precedents. The Second Circuit vacated the district court’s ruling that the case belonged in state court, but affirmed its alternative ruling on the merits. This appeal followed.
The Supreme Court has ruled in a series of cases that the President enjoys certain privileges and immunities from various judicial processes. For example, the Court held in United States v. Nixon, 418 U.S. 683 (1974), that the President had an “executive privilege” against disclosure of confidential presidential communications. At the same time, however, the Court ruled that a sufficiently important countervailing need for the information (like a federal court’s need for evidence in a criminal trial, as in that case) could outweigh the President’s interest in confidential communications.
As to immunities, the Court held in Nixon v. Fitzgerald, 457 U.S. 731 (1982), that the President is absolutely immune from civil liability for official acts taken while in office. But the Court held in Clinton v. Jones, 520 U.S. 681 (1997), that the President is not immune from civil suits for unofficial actions taken before he came to office.
The Department of Justice has long held the position that the President is immune from criminal prosecution while in office. But the Supreme Court has never addressed that question, or the related question whether the President is immune from any criminal process that might lead up to a prosecution. That last question is what this case is all about.
President Trump argues that as sitting President he is absolutely immune from any criminal process that targets him, including the Office’s subpoena to a third party like Mazars. President Trump claims that subjecting him to any criminal process at all would interfere with the President’s “unparalleled responsibilities to defend the nation, manage foreign and domestic affairs, and execute federal law.” Moreover, he contends that subjecting the President to any criminal process would “stigmatize the President in ways that will frustrate his ability to effectively represent the United States in both domestic and foreign affairs.” President Trump says that Congress can hold the President to account through impeachment, and that state and federal prosecutors can hold the President to account through criminal processes after he leaves office, but that the President is absolutely immune from criminal process while in office. President Trump asserts that this is consistent with the text, structure, and history of the Constitution and with the longstanding position of the Justice Department.
President Trump argues that the need for absolute immunity from criminal processes is particularly acute when it comes to state and local prosecutors. He says that these processes (unlike federal criminal processes, from which the President also claims absolute immunity) threaten federal supremacy under the Constitution’s Supremacy Clause. In particular, President Trump contends that without absolute immunity, state and local prosecutors, motivated only by their own parochial and political interests, could impede the work of the President and the President’s duties to the entire, undivided nation.
President Trump argues that the Mazars subpoena violates all of these principles. He says that there is “no dispute” that the Mazars subpoena targets him, given that it specifically seeks his records. And he says that it doesn’t matter that his compliance with this subpoena would not burden his official duties (because it is directed as Mazars, not him); instead, he claims that the President’s absolute immunity is based on the mere threat of a like subpoena (or other criminal process) by every state and local prosecutor.
President Trump argues that the Court’s precedents support his position. He points to Nixon v. Fitzgerald, where the Court held that a former President was immune from a suit for civil damages based on the President’s official acts. He says that subjecting the President to criminal processes would be even more burdensome. President Trump distinguishes Clinton and United States v. Nixon, arguing that both cases arose from federal, not state, proceedings, and that they involved different kinds of behavior or processes. Finally, President Trump argues that at the very least United States v. Nixon requires that a prosecutor show a “demonstrated, specific need” for material sought in a subpoena directed at the President, and that the Office failed to show this.
The government weighs in to support President Trump and echoes many of these themes. The government, however, stops short of arguing for absolute immunity from all criminal processes and instead argues only that President Trump is immune from “any process that would risk impairing the independence of his office or interfering with the performance of its functions.” In evaluating any particular process, the government contends that the Court should apply, at a minimum, the “heightened standard of need” in United States v. Nixon. It says that the Mazars subpoena does not meet this standard.
The Office argues in response that the President has no absolute immunity from a state grand jury subpoena for documents unrelated to the President’s official duties. The Office claims that the Court’s precedents extend immunity only to official acts (not private acts), and that the “mere risk of interference” with the President’s official functions cannot support immunity from this kind of subpoena. The Office contends that the Mazars subpoena only seeks information related to President Trump’s private acts, and only raises, at most, a “risk of interference” with the President’s official functions (because it’s directed at Mazars, not President Trump), and so the President is not immune from it.
The Office argues that this result is not altered by the President’s arguments in support of absolute immunity from all criminal processes. It says that responding to a subpoena is far less burdensome than facing indictment or prosecution, and does not stigmatize the President the way an official accusation of wrongdoing might. By way of comparison, it claims that the burdens on the President in United States v. Nixon were far greater, yet the Court still ruled against the President’s claim of privilege.
As to President Trump’s federalism claims, the Office argues that these lack merit. It says that state and local prosecutors are on the front lines of criminal law enforcement in the country, and that they are “cloaked with a presumption of regularity that makes federal interference particularly inappropriate.” Moreover, it asserts that there are other procedural safeguards—including a prohibition on state investigation of official presidential conduct—that protect the President from abusive state and local criminal processes. In any event, the Office contends that the Court already considered and dismissed President Trump’s worry that state and local prosecutors could hassle the President for political reasons when it rejected a similar argument for immunity from a private civil suit against the President in Clinton.
The Office argues further that there are good policy reasons not to provide absolute immunity to the President. For one, such immunity could effectively immunize the President from any post-office indictment and prosecution, because evidence may go stale and statutes of limitations may run. For another, immunity may impede other, related criminal investigations and prosecutions.
In short, the Office argues that there is no basis for absolute presidential immunity from all criminal processes, that there are good reasons not to provide such sweeping immunity, and that in any event the President has plenty of opportunities to claim immunities on a case-specific (and not absolute, categorical) basis.
The Office argues that the alternative test for immunity, the government’s “heightened standard of need,” derives from the Court’s test in evaluating claims of executive privilege, and has no application here. According to the Office, that’s because the subpoena here does not seek privileged material or material related to official conduct. Moreover, it says that the mere risk of the subpoena’s burden on the President is insufficient to justify a heightened standard. And it claims that such a standard would impede state and local law enforcement.
Finally, the Office argues that President Trump has failed to demonstrate that the Mazars subpoena suffers from any of the problems that may immunize the President from it. In particular, the Office says that President Trump has failed to show that it was issued in bad faith, or that it would be overly burdensome. (The Office notes that the district court already ruled on this last point, and that President Trump hasn’t produced any new evidence.)
This case has obvious and much-rehearsed (maybe too much rehearsed) political significance. In short, President Trump’s refusal to release his tax returns has been a central issue of political debate since at least the 2016 primaries. A ruling for President Trump would close this particular channel that could eventually lead to public release. A ruling against him, on the other hand, would require Mazars to turn over President Trump’s taxes to the Office, and thus leave open this channel which could lead to public release. It’s not entirely clear how much this matters, however, given that so many voters are stuck in their support of or opposition to President Trump, whatever his taxes might reveal. In any event, the ruling (which will likely come down this summer) will fast become political fodder for both sides and will certainly play some role in the presidential election.
The case and its companions, Trump v. Mazars USA, LLP, and Trump v. Deutsche Bank AG, raise the specter of a secondary political effect, which is likely far more significant. That is: these cases, as much as any other this Term (given the high-profile role that President Trump’s taxes and finances continue to play in our politics), will put the Court front and center in the ongoing political debates and the 2020 presidential election. Whatever the Court says, polls on one side or the other will claim that our Supreme Court justices are really only politicians masquerading in robes. That inevitable claim could have extra resonance here, in this explosive political environment and on this uniquely red-hot political issue, and could do serious and lasting damage to our collective faith in the judiciary and to the separation of powers.
And speaking of the separation of powers, this case could fundamentally reshape our structural constitution. The Court has never come close to endorsing the President’s claimed sweeping and absolute privilege against all criminal processes. If it creates such a privilege here, the ruling will mark a dramatic shift of power away from Congress, the judiciary, and even the states—and to the Executive Branch. This is big enough that we’ll almost feel the shift in our constitutional tectonic plates.
One final point. This case, of course, is linked with Trump v. Mazars and Trump v. Deutsche Bank AG, the two cases testing congressional authority to get President Trump’s taxes. While those cases raise the same practical bottom-line question—Can anybody get at President Trump’s taxes and financial records?—they involve very different constitutional issues, and therefore have their own (also quite weighty) constitutional significance.
The Supreme Court will hear oral arguments tomorrow in Trump v. Mazars and Trump v. Deutsche Bank, testing whether Congress has authority to subpoena the President's financial records from third-party custodians of those records. Here's my Preview, from the ABA Preview of United States Supreme Court Cases, with permission. (This doesn't address the political question issue, which the Court asked the parties to brief after this came out).
These cases test the authority of three different Committees of the U.S. House of Representatives to issue third-party subpoenas in support of their oversight and investigations into different aspects of President Trump’s private financial dealings. Let’s look at the Committees’ investigations one at a time.
The Oversight Committee Investigation
The House Committee on Oversight and Reform is engaged in an ongoing investigation into Executive Branch ethics and conflicts of interest, presidential financial disclosures, federal lease management, and possible violations of the Constitution’s Emoluments Clauses. As relevant here, the Committee is examining President Trump’s personal business interests and his decision to maintain ties to these interests (and not fully divest from them, consistent with prior presidential practice). In particular, the Committee has identified concerns with the Government Services Administration’s (GSA) ongoing management of the lease of the federal Old Post Office Building for the Trump International Hotel in Washington, D.C.; the adequacy and accuracy of President Trump’s financial disclosures and the adequacy of federal ethics laws; and allegations by Michael Cohen that President Trump falsely reported his assets. According to the Committee, the investigation is designed “to determine the adequacy of existing laws and perform related agency oversight.”
After the Committee heard testimony from Cohen that included allegations that President Trump falsely reported his assets, the chair wrote to Mazars and requested accounting documents related to President Trump and certain of his businesses from January 1, 2009, to the present. Mazars declined to produce this material.
On April 12, 2019, the chair then sent a memorandum to Committee members explaining the need for a subpoena to Mazars. The memo identified four subjects that the Committee had “full authority to investigate”: (1) “whether the President may have engaged in illegal conduct before and during his tenure in office,” (2) “whether [the President] has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions,” (3) “whether [the President] is complying with the Emoluments Clauses of the Constitution,” and (4) “whether [the President] has accurately reported his finances to the Office of Government Ethics and other federal entities.” The chair also wrote that the Committee’s “interest in these matters informs its review of multiple laws and legislative proposals under our jurisdiction.”
The Committee then issued a subpoena to Mazars seeking documents related to financial statements, engagement letters, supporting documents, and related communications for President Trump and certain of his businesses, from 2011 through 2018.
The Financial Services Committee Investigation
The Financial Services Committee is engaged in an ongoing, broad investigation into financial institutions’ compliance with banking laws and whether those laws adequately protect against foreign money laundering, other financial crimes, and high-risk loans. As part of this investigation, the Committee is looking into practices at Deutsche Bank and Capital One.
These banks “have long provided business and personal banking services” to President Trump and his family. According to a series of media reports over the last few years, these banks made questionable loans to President Trump. Most recently, a New York Times Magazine article reported that Deutsche Bank had concerns that President Trump’s “real estate projects were laundromats for illicit funds from countries like Russia, where oligarchs were trying to get money out of the country.”
In order to further its investigation, the Committee issued two subpoenas. The first was directed at Deutsche Bank; it sought documents and records that included detailed financial information “belonging to, or likely to reveal information, concerning” President Trump and his family. The Deutsche Bank subpoena covered material from January 1, 2010, to the present (with no closing date). The second subpoena was directed at Capital One; it sought information about various Trump businesses and their principals and “other representatives,” including businesses affiliated with the Trump International Hotel in Washington, D.C. The Capital One subpoena covered material from July 19, 2016, to the present (again with no closing date). Deutsche Bank and Capital One declined to comply.
The Intelligence Committee Investigation
The House Intelligence Committee is engaged in an ongoing investigation into “efforts by Russia and other foreign actors to influence our political process before, during, and since the 2016 election.” The investigation includes assessing “whether foreign actors have financial leverage over President Trump, whether legislative reforms are necessary to address these risks, and whether our Nation’s intelligence agencies have the resources and authorities needed to combat these threats.”
In order to further its investigation, the Committee issued a subpoena to Deutsche Bank, covering the exact same material and time frames as the Financial Services Committee’s subpoena. Deutsche Bank declined to comply.
In all, the three House committees issue four third-party subpoenas for financial information about President Trump.
Before the response date for any of the subpoenas, President Trump brought two separate lawsuits—one in Washington, D.C., and the other in New York City—to stop Mazars and the banks from complying. President Trump sued “solely in his capacity as a private citizen.” Mazars and the banks took no position on the underlying issue—the Committees’ authority to issue the subpoenas—and so the Committees intervened as defendants.
After the President filed suit, the House passed Resolution 507, purporting to ratify the Committees’ subpoenas. The Resolution stated that the House “ratifies and affirms all current and future investigations” and “subpoenas previously issued or to be issued in the future, by any standing or permanent select committee of the House,” related to the President, his immediate family, his businesses and organizations, and others with ties to the President, including any “current or former” government employees.
Both district courts ruled against President Trump, and the D.C. and Second Circuits affirmed. This appeal followed.
Congress has implied authority under the Constitution to engage in investigations and oversight of issues and areas that fall within its legitimate lawmaking power. As part of this implied authority, Congress can issue subpoenas to collect information to advance its investigations and oversight. Either house of Congress can delegate these authorities to its committees.
But a committee’s investigative and oversight authorities are not unbounded. Congressional investigations or oversight must serve a “legitimate legislative purpose,” they must be authorized by their full house, and they may not impermissibly encroach on another branch’s authority.
The parties frame their arguments around these baseline principles.
President Trump argues first that the committees did not have a legitimate legislative purpose in issuing the subpoenas. For one, he says that the subpoenas at best seek information that might lead to legislation. But he claims that this is not enough to bring the subpoenas within Congress’s legitimate lawmaking authority. For another, he asserts that the subpoenas probe into areas where Congress simply cannot legislate, for example, extending conflict-of-interest restrictions to, and imposing disclosure requirements upon, the President, and that they therefore lack a legitimate legislative purpose. For a third, he contends that the bank subpoenas impermissibly seek his personal financial information only as a “case study” for financial sector reform, and that simply does not fit within Congress’s legitimate lawmaking power. For a fourth, he contends that the subpoenas are part of the Committees’ exercise of law enforcement power, not law-making power, and that they impermissibly encroach on executive authority in violation of the separation of powers. And for a fifth, he asserts that the subpoenas are based on the Committees’ pure political interests, not legitimate lawmaking interests.
President Trump argues that for all these reasons even an ordinary congressional subpoena would fail. But he claims that the “unprecedented” congressional subpoenas seeking private information of the President should be subject to an even higher standard, and that under a higher standard these subpoenas would fail all the more.
President Trump argues next that the Committees lack express authority under House rules to issue the subpoenas. He claims that express delegation to the Committees to issue subpoenas is necessary in investigations, like these, that raise serious separation-of-powers issues, because “Congress seeks to encumber the President” and because the Committees are pushing the outer boundaries of congressional authority. Moreover, he says that requiring an express delegation, and ruling against the Committees because they lacked it, would allow the Court to avoid ruling on the underlying constitutional issues. President Trump contends that Resolution 507 did not provide express delegation, because it did not purport to amend House rules, did not expand the Committees’ authority, and acted retroactively “in violation of controlling precedent.” Finally, President Trump argues that interpreting Resolution 507 to expressly delegate power to the Committee to issue these subpoenas would only clear the way for every House Committee to issue its own subpoenas. According to the President, this, in turn, would “keep the President from fulfilling the obligations of his office.”
The government weighs in as amicus to support President Trump. The government lodges arguments similar to President Trump’s, but puts a finer point on the “heightened requirements” that it says Congress must meet in order to subpoena the President’s records. In particular, the government proposes this:
At the threshold, the full [House] chamber should unequivocally authorize a subpoena against the President. Moreover, the legislative purpose should be set forth with specificity. Courts should not presume that the purpose is legitimate, but instead should scrutinize it with care. And as with information protected by executive privilege, information sought from the President should be demonstrably critical to the legitimate legislative purpose. A congressional committee cannot evade those heightened requirements merely by directing the subpoenas to third-party custodians, for such agents generally assume the rights and privileges of their principal . . . .
For many of the same reasons raised by President Trump, the government says that the Committees’ subpoenas do not meet this heightened test.
The Committees counter that legislative subpoena power is an essential and time-tested part of congressional authority. (They rehearse in their merits brief the many similar congressional investigations that illustrate why their own investigations are hardly “unprecedented,” as the President contends.) They say that congressional authority’s “historical pedigree is too strong for it to be narrowed by the arguments” of the President and the government. They contend that instead of applying “heightened requirements” for these subpoenas (as the President and the government argue), the Court should defer to the Committees, so long as the subpoenas are related to a valid legislative purpose—one that “will inform Congress on a subject on which legislation could be had.”
The Committees argue next that they had “multiple legislative purposes” in issuing the subpoenas, as the courts below found. To illustrate this, they point to several pending bills, which are constitutionally permissible, that will be informed by these investigations. Moreover, the Committees contend that it doesn’t matter that they are investigating wrongdoing, so long as the investigations are related to a legitimate legislative purpose (which they are). And they say, contrary to the President and the government, these subpoenas (directed, as they are, to third parties) do not impair the President’s ability to perform his constitutional duties.
The Committees argue that the government’s “heightened standard” for subpoenas for material related to the President’s purely personal behavior conflicts with the Constitution. They say that the government’s proposed requirement that the full House authorize subpoenas concerning the President disregards the House’s constitutional power to determine its own rules. They contend that the proposed requirement that courts more closely scrutinize Congress’s stated purposes “invites inappropriate judicial micromanagement of Congressional oversight.” And they assert that the proposed requirement that a subpoena is “demonstrably critical” to congressional purposes “brazenly stacks the deck in favor of one Branch over another.” But the Committees contend that even if the Court applied the government’s test, their subpoenas would satisfy it.
Finally, the Committees argue that the House properly authorized them to conduct their investigations and issue their subpoenas. They contend that they have explicit authority to issue any subpoenas that they “consider necessary” to carry out “any of [their] functions and duties” under House Rule XI.2(m)(1). And they say that House Resolution 507 ratified and affirmed the specific subpoenas here.
This case, just like the companion case Trump v. Vance, testing whether President Trump has to comply with a state grand jury subpoena for his tax records, has obvious and much-discussed political significance. But the subpoenas in this case sweep more broadly than the subpoena in Vance: these subpoenas seek a variety of material related to President Trump and his business organizations, while the subpoena in Vance now only seeks his tax records. As a result, this case has potentially higher stakes. In particular, a ruling against President Trump could allow the Committees to obtain a trove of material relating to President Trump’s financial dealings and their bearing, if any, on his public duties. On the other hand, a ruling for President Trump could hamstring the Committees’ investigations, or even halt them altogether, and close off this avenue to public disclosure of this material. While President Trump’s taxes may get more play in our popular political debates, his broader financial dealings are likely far more significant.
As with Vance, however, it’s not clear how much any of this will matter. Given President Trump’s remarkably stable and durable base, and given his similarly remarkably stable and durable opposition, the Court’s ruling, whatever it is, will likely be interpreted by the general public in pure political terms (pro-Trump, or anti-Trump). That’s especially true coming on the heels of the impeachment proceedings, when relations between President Trump and House Democrats are already at a new low. In this highly strained political environment, it’s easy to see how partisans will put a political cast on these rulings, and on the justices behind them. It’s equally easy to see how the inevitable reactions to these cases, therefore, threaten to do lasting harm to our collective faith in a politically independent judiciary.
This case also threatens to do lasting harm to Congress. If adopted by the Court, President Trump’s arguments, echoed by the government, could substantially rein in Congress’s investigation and oversight authorities. In particular, if the Court were to adopt the argument that Congress lacked a legitimate legislative purpose—an argument that this administration has pressed hard in other congressional investigations not directly involving the President—this could seriously constrain Congress’s power to check the Executive Branch. In its strongest form, sometimes adopted by this administration, this argument could allow the Executive Branch to wholly ignore congressional oversight and investigations, leaving Congress little practical authority to coax the administration to cooperate. But even at the very least, this argument, if adopted by the Court, could open the door to active judicial intervention in congressional oversight and investigations. In short, this argument, if adopted by the Court, would shift power away from Congress to the Executive Branch and the courts, and thus significantly alter our current separation of powers.
Saturday, May 9, 2020
Check out Claire Finkelstein and Richard Painter's piece in the NYT, Trump's Bid to Stand Above the Law--a primer on the oral arguments next week in Trump v. Vance (testing the Manhattan D.A.'s subpoena to President Trump's accountants for his financial records), including President Trump's claim of absolute executive privilege in that case.
Thursday, May 7, 2020
Check out ConLawProf Blog's own Prof. Ruthann Robson's (CUNY) outstanding and timely piece, Positive Constitutionalism in a Pandemic: Demanding Responsibility from the Trump Administration, in the U. Akron ConLawNOW Symposium on Pandemics and the Constitution.
Robson argues for positive rights to health and life in the current crisis--"a Constitution that protects our survival"--and not just the negative rights under existing doctrine. (But she also notes that the Administration's mis-handling provides plenty of fodder even for negative rights claims.)
The Supreme Court ruled today in United States v. Sineneng-Smith that the Ninth Circuit overstepped when it invited amici to brief, and then ultimately ruled upon, an issue not raised by the parties. Justice Ginsburg concluded for a unanimous court, "[A] court is not hidebound by the precise arguments of counsel, but the Ninth Circuit's radical transformation of this case goes well beyond the pale."
The case arose when Evenlyn Sineneng-Smith, an immigration consultant, charged multiple clients over $6,000 each for filing applications for a labor certification program. The problem: the applications missed the deadline, and Sineneng-Smith knew it.
She was indicted for violations of 8 U.S.C. Sec. 1324, which makes it a felony to "encourag[e] or induc[e] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law."
Sineneng-Smith argued that the provisions didn't cover her conduct and, if they did, that they violated the Petition and Free Speech Clauses of the First Amendment. The district court rejected those arguments and convicted her.
Sineneng-Smith appealed, raising the same claims. But the Ninth Circuit invited amici to brief and argue that Section 1324 was impermissibly overbroad (among other things), a claim that Sineneng-Smith hadn't yet raised. The Ninth Circuit ultimately ruled that Section 1324 was overbroad in violation of the First Amendment.
The Supreme Court reversed. The Court ruled that the Ninth Circuit reached out for this issue, in violation of the principle that courts rely on the parties to frame the issues. The Court vacated the judgment and remanded "for reconsideration shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties."
Justice Thomas concurred, but wrote that he would consider revisiting the overbreadth doctrine in an appropriate case.
Tuesday, May 5, 2020
The Supreme Court will hear oral arguments in these consolidated cases tomorrow, testing whether the Trump Administration had authority to grant a categorical exemption from the ACA's contraception guarantee for organizations with a religious or moral objection to contraception. Here's my Preivew, from the ABA Preview of United States Supreme Court Cases, with permission:
In 2010, Congress enacted the Patient Protection and Affordable Care Act (ACA) in order “to increase the number of Americans covered by health insurance and decrease the cost of health care.” To those ends, the ACA requires employers, with some exceptions (those with 50 or fewer employees, and those with grandfathered insurance plans), to offer their employees health insurance with certain “minimal essential coverage.” As relevant here, the ACA requires employers to offer insurance to female employees that includes “preventive care and screenings” without cost to the employees. The ACA delegates authority to determine the particular “preventive care and screenings” to the Health Resources and Services Administration (HRSA), an office within the Department of Health and Human Services (HHS).
Pursuant to this authority, the HRSA and other implementing agencies (the Department of Labor and the Department of the Treasury) issued Interim Final Rules (IFRs) that required employers to provide insurance coverage for items in HRSA’s preventive-care guidelines. Those guidelines included all female contraceptives approved by the Food and Drug Administration (FDA). The HRSA and other implementing agencies exempted certain religious employers (like churches), however, out of recognition that some individuals and organizations have faith-based objections to providing coverage for contraception.
The agencies then issued their final rule. The final rule maintained the exemption for certain religious employers (again, like churches), and added an accommodation for certain other religious non-profit employers that objected to the contraceptive guarantee. Under the accommodation, an employer would communicate its objection to its insurer or the third-party administrator (TPA) of its health plan. At that point, the federal government required or encouraged the insurer or TPA to provide contraceptive coverage directly to the employee, separate from the employer’s health-insurance plan, thus bypassing the objecting employer.
Numerous non-profit and for-profit religious organizations (including the Little Sisters) sued to halt the accommodation provision under the Religious Freedom Restoration Act (RFRA). They argued that the provision didn’t really accommodate their faith-based objections to providing contraceptive coverage to employees. Instead, they claimed that the requirement that they communicate their objections to their insurer or TPA triggered their insurer or TPA to provide contraceptive coverage. By this reckoning, the accommodation actually made them complicit in providing contraception to their employees.
Eight of nine circuit courts ruled against the plaintiffs in these cases. The Court stepped in to grant emergency relief in two of them, one brought by the Little Sisters, the other brought by Wheaton College, but the Court did not address the merits. Around the same time, in June 2014, in Burwell v. Hobby Lobby, 573 U.S. 682 (2014), the Court ruled that the contraceptive guarantee violated the RFRA as to closely-held for-profit businesses. (The final rule did not include an accommodation for for-profits.) The Court held that the guarantee substantially burdened those businesses’ exercise of religion, and that there were other ways that the government could provide contraceptive coverage to female employees. As an example, the Court pointed to the accommodation for religious non-profits in the final rule; but it also specifically declined to say whether the accommodation itself violated the RFRA.
In response to the Court’s emergency relief in the non-profit cases and its ruling in Hobby Lobby, the implementing agencies modified the accommodation in two ways. First, they allowed objecting non-profits to notify HHS of their objections, instead of their insurers or TPAs. Next, they extended the accommodation to closely-held for-profits.
In 2016, in Zubick v. Burwell, 136 S. Ct. 1557, the Court finally took up the cases brought by religious non-profits. But rather than ruling on the merits, the Court vacated the lower courts’ rulings and ordered the parties to work out a solution. (The Court only had eight justices at the time. Justice Antonin Scalia had deceased, and the Senate refused to consider President Barak Obama’s nominee to replace him. As a result, the Court was probably evenly divided on the merits, and this solution allowed the Court avoid a four-four ruling on this important question.)
The parties could not work out a solution by the end of the Obama Administration. As a result, the implementing agencies retained the existing accommodation.
Then, in October 2017, the agencies issued IFRs that expanded the exemption for religious organizations. In particular, the IFRs categorically exempted for-profits and non-profits with a religious or moral objection from the contraceptive guarantee. (The agencies added organizations with a “moral” objection.) The agencies acknowledged that the rules would leave between 31,700 and 120,000 women without contraceptive coverage in one year.
Pennsylvania sued to halt these latest IFRs, arguing that the agencies violated the APA. The district court granted a nationwide preliminary injunction barring implementation of the IFRs. (Several other similar cases were also pending at the time, and at least one other court issued an injunction. California v. HHS, 281 F. Supp. 3d (N.D. Cal. 2017).) The court also declined to allow the Little Sisters to intervene in the case, although the Third Circuit later permitted the organization to defend “the portions of the [2017 religious rule] that applied to religious nonprofit entities.”
As the case was pending, the agencies adopted final rules nearly identical to the latest IFRs. In particular, the Final Rules exempted all private entities, including publicly-traded corporations, from the contraceptive guarantee (or allowed them to self-exempt) based on religious objections; exempted all but publicly-traded corporations based on moral objections; and made the accommodation option. The agencies acknowledged that the Final Rules would mean that between 70,500 and 126,400 women would lose access to contraception in one year.
Pennsylvania, now joined by New Jersey, filed an amended complaint. The district court granted another nationwide preliminary injunction. The Third Circuit affirmed, and this appeal followed.
The parties raise four different issues. Let’s take a look, one at a time.
The Little Sisters argue that they have appellate standing, because they have a direct stake in the outcome of this case. They claim that the Third Circuit was wrong when it held that they lacked standing based on the theory that a Colorado injunction in a similar case, also involving the Little Sisters, mooted the Little Sisters’ interests in this case. The organization says that the Colorado injunction is more limited than what the Little Sisters seek in this case, and so they continue to have an independent interest in this case. The Little Sisters contend that their standing is even stronger now that the case is at the Court. After all, they assert, the Court’s ruling will affect all similar cases.
Pennsylvania counters that the Little Sisters lack appellate standing. The state says that the agencies are now enjoined from enforcing the contraceptive guarantee against the organization, and that the district court expressly excluded the organization from the injunction now on appeal. Because the Little Sisters lack a direct stake in this injunction, Pennsylvania claims that the organization lacks appellate standing in this case.
Substantive Statutory Authority
The respondents argue that the agencies had statutory authority to issue the final rules. They claim that the plain text of the ACA delegates sufficiently broad authority to the HRSA to grant categorical exemptions from the preventive-services guarantee, and that the agencies, in issuing the final rules, merely drew on that broad authority. They point out that the agencies provided for a categorical exemption from the beginning (for religious organizations like churches), and claim that this only underscores their position that the ACA delegates authority to grant this categorical exemption.
The respondents argue next that the RFRA requires, or at least permits, the broader exemptions in the final rules. They point to the Court’s ruling in Hobby Lobby that the contraceptive guarantee, without an accommodation, violates the RFRA. And they contend that the accommodation doesn’t really change that calculus. That’s because at least some religious non-profits see the accommodation itself as triggering the contraceptive guarantee, in violation of their religious beliefs. In other words, for some, the accommodation itself violates the RFRA. As a result, the respondents contend that the RFRA required the agencies to adopt the categorical exemptions in the final rules. (The respondents say that even if the RFRA did not require the agencies to adopt the final rules, it at least permitted the agencies to adopt them. They contend that an agency can be more protective of religious rights than the RFRA requires, if it so chooses.)
On the other side, Pennsylvania argues that the ACA does not authorize the agencies to adopt the final rules. The state says that the ACA only delegates authority “to identify which preventive services for women must be covered,” and not to “grant non-health related exemptions to a sub-agency with narrow expertise in health care.” Pennsylvania contends that the original exemption for religious organizations is different, because it was “independently authorized by the well-established church autonomy doctrine,” and not the ACA itself.
Pennsylvania argues next that the RFRA does not authorize the final rules. The state says that the accommodation is consistent with the RFRA, because it does not substantially burden religious exercise. (The state claims that the accommodation simply requires a religious non-profit to report its objection. At that point, federal law, not the religious non-profit, is responsible for guaranteeing contraceptive coverage.) Because the accommodation doesn’t violate the RFRA, the state contends that the RFRA provides no basis for issuing a broader, categorical exemption. Moreover, Pennsylvania asserts that the RFRA doesn’t affirmatively grant federal agencies any rulemaking power, except to the extent that an agency regulates to resolve a RFRA violation in a program the agency administers. But the state says that this is not the case here.
Procedural Compliance with the APA
The respondents argue that the final rules comport with APA requirements. They contend that the final rules—the only rules at issue here—complied with APA notice-and-comment requirements. And they say that the earlier IFRs complied with the APA requirements for interim final rules. They point out that all of the agencies’ rules on the contraceptive guarantee started as interim final rules, and that the latest IFRs are no different.
Pennsylvania replies that the final rules violate the APA. The state contends that the 2017 IFRs violated the APA, because they failed to meet the APA standard for interim final rules, in particular, that they were not so urgent as to allow the agencies to bypass normal notice-and-comment procedures. The state contends that the 2018 final rules violate the APA, too, because the agencies did not allow for pre-publication notice and comment. (Instead, the agencies took comments on the 2017 IFRs, not the proposed 2018 final rules.) Pennsylvania argues that the APA does not permit the agencies to sidestep notice-and-comment requirements this way.
Finally, the respondents argue that the Court should reverse the district court’s nationwide injunction. They claim that the nationwide injunction grants relief far beyond the interests of the states, and thus exceeds the power of the district court. They claim that a nationwide injunction in this case is particularly inappropriate, because it could conflict with rulings in the many other similar cases pending around the country.
Pennsylvania argues in response that the nationwide injunction is consistent with the APA, which requires courts to set aside unlawful rules without limitation and grants courts authority to enter preliminary orders “to postpone the effective date of an agency action or to preserve status or rights.” The state also says that a nationwide injunction fully redresses its injuries, because the final rules would exempt out-of-state entities whose employees, students, or children might come to Pennsylvania and burden the state with the cost of their contraceptive coverage.
This case is the latest chapter, and probably the last one, in the long-running saga over the contraceptive guarantee. This regulatory provision has been under sustained attack from the beginning. While opponents of guaranteed contraception have lost overwhelmingly in the circuit courts, the Supreme Court has been a much friendlier venue. As mentioned above, the Court ruled in Hobby Lobby that the guarantee (without an accommodation) violated the RFRA as to closely-held corporations. Moreover, it granted interim relief in a pair of cases challenging the accommodation for religious non-profits. And while it dodged the underlying issue in Zubick, there’s reason to think that it ruled this way to avoid a four-four split on the eight-justice Court—in other words, that four of the eight justices would have struck the accommodation.
If that’s right, then we might expect that there are now five justices that would rule that the accommodation violates the RFRA. (Since Zubick, Justice Neil Gorsuch replaced Justice Scalia, and Justice Brett Kavanaugh replaced Justice Anthony Kennedy. If the Court would have split four-four on the merits in Zubick, Justice Gorsuch’s addition probably means that there are now five votes for striking the accommodation.)
But that doesn’t necessarily answer the questions in this case. In particular, even if the accommodation violates the RFRA, that alone doesn’t mean that the agencies had authority to issue the Final Rules, or that they issued them consistently with the APA. Remember that the Final Rules categorically exempt a much broader set of organizations than were covered by the accommodation. (Keep an eye on the categorical exemption for organizations with a moral objection to contraception. This opens a potentially gaping hole in the contraceptive guarantee.) Moreover, the government itself estimates that the Final Rules will result in lost contraceptive coverage for tens of thousands of women in one year—seemingly undermining the very purpose of the ACA to provide “minimal essential coverage.” The broad sweep of the Final Rules, and their procedural irregularities, could mean that the agencies lacked authority to adopt them, even if a majority on the Court might agree that the accommodation violated the RFRA.
On a different note entirely: This case raises a critically important question about the authority of district courts to issue nationwide injunctions. This practice is increasingly common, and increasingly controversial, as plaintiffs have sought more and more to halt administration policies across the board. The government invites the Court to address this issue, even if it doesn’t rule in favor of the government on the merits.
This question may seem like it has partisan overtones. But it doesn’t. If the Court rules that district courts lack authority to issue nationwide injunctions, that will take away a key tool that advocates can use—and have used—to challenge government policies in any administration.
The Supreme Court will hear oral arguments on Wednesday in Barr v. American Association of Political Consultants, Inc., the case testing whether the general ban on automated calls to cell phones in the Telephone Consumer Protection Act is an impermissible content-based restriction on speech because the Act exempts calls to collect government owned debt. Here's my Preview, from the ABA Preview of United States Supreme Court Cases, with permission:
Congress enacted the Telephone Consumer Protection Act of 1991 (TCPA) in order to protect individuals from the “nuisance” and “invasion of privacy” wrought by automated calls. Among other things, the TCPA prohibits any automated call to any cell phone number, except calls made for an emergency purpose or with the express consent of the called party. 47 U.S.C. § 227(b)(1)(A)(iii). While Congress was particularly concerned about automated telemarketing calls, the automated-call restriction is not limited to calls made to sell goods or services. Congress delegated authority to enforce the TCPA to the Federal Communications Commission (FCC).
In 2015, Congress added an exception to the automated-call restriction for calls “made solely to collect a debt owed to or guaranteed by the United States.” 47 U.S.C. § 227(b)(1)(A)(iii). The provision, called the “government-debt exception,” was designed to help the United States collect on debts “as quickly and efficiently as possible.” As part of the provision, Congress authorized the FCC to issue regulations “restrict[ing] or limit[ing] the number and duration of” these calls, so that the FCC could “protect consumers from being harassed and contacted unreasonably.” FCC regulations limit the government-debt exception to only those calls involving delinquent debt that the United States owns or guarantees, and where a caller has authority to accept payment and the recipient has a responsibility to pay.
In 2016, a group of political organizations and an association of political consultants, fundraisers, and pollsters sued the Attorney General and the FCC, arguing that the automated-call restriction, as amended by the government-debt exception, was a content-based restriction on speech in violation of the First Amendment. The plaintiffs sought a declaratory judgment that the automated-call restriction was unconstitutional on its face.
The district court ruled in favor of the government. The Fourth Circuit vacated the judgment and remanded for further proceedings. (The Fourth Circuit ruled that the government-debt exception was an impermissible content-based regulation on speech. But it then severed that exception from the broader automated-call restriction, and sent the case back to the district court to determine whether the automated-call restriction, now without the government-debt exception, violated free speech.) This appeal followed.
As a general matter, a content-based restriction on speech must be narrowly tailored, or necessary, to serve a compelling government interest. This test, called “strict scrutiny,” is the most demanding test known to constitutional law. It usually means that a content-based restriction on speech violates the First Amendment.
This case has a twist, though. The content-based portion of the automated-call restriction is in the government-debt exception (assuming, that is, that the government-debt exception is content-based—the first point of contention between the parties). The plaintiffs don’t challenge the government-debt exception alone (and that makes sense, because, after all, the exception allows speech); instead, they challenge the overall automated-call restriction based on the alleged impermissibly content-based government-debt exception.
And that leads to severability—the second point of contention between the parties. If the government-debt exception is a content-based regulation on speech, and if it therefore renders the entire automated-call restriction a content-based regulation on speech, then the Court may be able to save the automated-call restriction by simply extracting, or severing, the government-debt restriction—that is, by simply removing the offending portion.
The government argues that the government-debt exception is not a content-based restriction on speech. The government claims that the exception does not regulate speech based on its content, but rather based on “a certain kind of economic activity (the collection of government-backed debts).” To illustrate this point, the government says that the exception doesn’t apply unless the government owns or guarantees the debt, the caller has authority to collect the debt, and the debt is not delinquent—all requirements that do not relate to the content or message of the call. And to the extent that these requirements may touch on the content of the call, the government contends that these are not the kinds of things that typically trigger strict scrutiny.
Because the government-debt exception is not a content-based regulation of speech, the government argues that it is subject to a lower level of scrutiny, intermediate scrutiny, and that it passes. The government claims that the exception serves the “significant public and governmental interest in protecting the federal fisc,” and that the exception “directly advances” that interest by allowing automated calls to more efficiently collect on government debt. It says that the exception allows only a narrow range of calls for a limited purpose, and therefore sufficiently protects the privacy interests of those who are called.
Finally, the government argues that even if the government-debt exception is a content-based regulation of speech, the Court should sever it from the rest of the TCPA and leave the automated-call restriction intact. The government claims that the Act itself contains a severability provision that unambiguously requires severability, and that the history and purposes of the TCPA confirm “that Congress would have wanted the automated-call restriction to remain in effect independently of the government-debt exception.” (The government points to the fact that the automated-call restriction was on the books for 24 years before Congress added the government-debt exception.) The government contends that when the Court severs the government-debt exception, it removes the content-based regulation on speech (again, only assuming that the government-debt exception is a content-based regulation on speech) so that it can’t infect the rest of the Act—and so that the automated-call restriction can continue to stand.
The plaintiffs counter that the automated-call restriction is an impermissible content-based restriction on speech. The plaintiffs point to the government-debt exception to illustrate this. In short, they say that the automated-call restriction, including its government-debt exception, allows speech that “discusses only the collection of government-backed debt” but disallows speech on any other topic. The plaintiffs contend that fails strict scrutiny, because the government doesn’t have a compelling interest in protecting the public from unwanted communication, and, in any event, the “sweeping prohibitions” under the automated-call restriction “are far from the least restrictive means of furthering that interest.” (Indeed, they argue that “the statute is so hopelessly ill-tailored to the Government’s asserted privacy interest that [the automated-call restriction] fails any level of scrutiny.”)
The plaintiffs argue that the only appropriate remedy is to strike the automated-call restriction. They claim that Court precedent supports the idea that when a statute restricts speech based on content with exceptions that allow speech, the Court strikes the restriction, not the exceptions. Moreover, they claim that it’s the automated-call restriction, and not the government-debt exception, that harms them. The plaintiffs contend that the content-based discrimination reflected in the government-debt exception shows that the overall automated-call restriction is also content-based, and therefore unconstitutional. They assert that severing the government-debt exception (the provision that allows more speech) only to uphold the automated-call restriction (the provision that allows less speech) makes no sense when the First Amendment protects free (or more) speech.
Finally, the plaintiffs argue that the automated-call restriction violates free speech even if the Court severs the government-debt exception. They claim that the automated-call restriction is itself a content-based restriction on speech (even without considering the government-debt exception), and that it is “far broader than necessary to advance the narrow privacy interests the Government asserts.”
This ruling could have immediate and all-too-palpable significance for the estimated 96 percent of people in the United States who have a cell phone. Perhaps to state the obvious: a ruling for the plaintiffs could allow automated political calls to cell phones, right as the 2020 election goes into full swing. This could be a huge boon to those who seek to use automated-calling technology for political purposes (like the plaintiffs in this very case), but it could also be a huge drag to cell phone users who wish to avoid an onslaught of political calls on a device that was previously protected from them.
A ruling for the plaintiffs would effectively open up calls for other purposes, too, including commercial solicitations, advertisements, surveys, and the like.
But this is only if the Court rules (1) that the government-debt exception is a content-based restriction on speech, (2) that the government cannot justify the exception under strict scrutiny, and (3) that the government-debt exception therefore renders the entire automated-call restriction irremediably unconstitutional (because the government-debt exception cannot be severed). This is a tall order, even for a Court that has in recent years demonstrated an extreme preference for a free and open “marketplace of ideas”—and an equally extreme distaste for all manner of content-based regulations on speech.
Taking a step back from the particulars of First Amendment doctrine, here’s another way to think about this case: as a balance between, on the one hand, a free and open marketplace of ideas, involving our most highly valued speech (political speech), and, on the other, our need for and expectation of privacy from automated calls on our cell phones. At what point does the marketplace of ideas run into our expectation of privacy, on this especially private device?
Monday, May 4, 2020
The Supreme Court will hear oral arguments tomorrow in USAID v. Alliance for Open Society International, the case testing whether the First Amendment bars Congress from restricting federal funds to fight HIV and AIDS abroad to foreign affiliates of U.S. nongovernmental organizations that have a policy opposing prostitution and sex trafficking. Here's my preview, from the ABA Preview of United States Supreme Court Cases, with permission:
In 2003, in order to fight the global HIV and AIDS pandemic, Congress enacted the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act. Under the Act, Congress has provided billions of dollars to fight HIV and AIDS abroad through increased treatment, efforts to prevent new infections and initiatives to “support the care for those affected by the disease.”
As part of its detailed factual findings in support of the Act, Congress determined that women were particularly vulnerable to HIV and AIDS. As relevant here, Congress identified “[p]rostitution and other sexual victimization,” including sex trafficking, as significant harms to women and children. The Act accordingly states that it “should be the policy of the United States to eradicate” the practices of “[p]rostitution and other sexual victimization.”
As part of its findings, Congress also determined that “[n]ongovernmental organizations . . . have proven effective in combating the HIV/AIDS pandemic” and are “critical to the success of . . . efforts to combat HIV/AIDS.” The Act accordingly “enlist[s] the assistance of nongovernmental organizations to help achieve the many goals of the program.”
But the Act establishes two conditions on its funds. First, the Act prohibits funds to “be used to promote or advocate the legalization or practice or prostitution or sex trafficking.” Second, at issue here, the Act specifies that no funds “may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking,” with certain exceptions not relevant here. The parties refer to this second condition as the “Policy Requirement.” In order to enforce the “Policy Requirement,” the U.S. Department of Health and Human Service and the U.S. Agency for International Development directed that the recipient of any funding under the Act certify in the funding contract that it is opposed to “prostitution and sex trafficking because of the psychological and physical risks they pose for women, men, and children.”
In 2005, the Alliance for Open Society International and Pathfinder International, domestic NGOs that work to combat HIV and AIDS overseas, sued the government, arguing that the Policy Requirement violated their First Amendment rights. (The plaintiffs did not, and do not, support prostitution or sex trafficking, but they worried that complying with the Policy Requirement “may alienate certain host governments, and may diminish the effectiveness of some of their programs by making it more difficult to work with prostitutes in the fight against HIV/AIDS.”) As the case worked its way through the courts, the government adopted “Affiliate Guidelines” to try to accommodate the plaintiffs’ concerns. These Guidelines allowed domestic NGOs (like the plaintiffs) to “maintain an affiliation with separate organizations that do not have such a policy,” so long as those organizations met certain conditions. The Guidelines thus allowed domestic NGOs to abide by the Policy Requirement while working with foreign affiliates that could express their own views on prostitution. The plaintiffs argued that the Policy Requirement still violated their First Amendment rights, even with the Guidelines, in large part because the Guidelines required such a degree of separation between the plaintiffs and their affiliates that the affiliates’ speech could not stand-in for the plaintiffs’ own message.
The Supreme Court agreed. The Court first noted that as a general matter the government may place conditions on the receipt of federal funds, even when a condition may affect a recipient’s exercise of First Amendment rights. The Court said that these conditions merely “define the limits of the government spending program” by “specify[ing] the activities that Congress wants to subsidize.” But here, the Court held that the Policy Requirement sought “to leverage funding to regulate speech outside the contours of the program itself.” In other words, the Policy Requirement regulated more speech than necessary to define the program. As to the Affiliate Guidelines, the Court wrote,
When we have noted the importance of affiliates in this context, it has been because they allow an organization bound by a funding condition to exercise its First Amendment rights outside the scope of the federal program. Affiliates cannot serve that purpose when the condition is that a funding recipient espouse a specific belief as its own. If the affiliate is distinct from the recipient, the arrangement does not afford a means for the recipient to express its beliefs. If the affiliate is more clearly identified with the recipient, the recipient can express those beliefs only at the price of evident hypocrisy. The guidelines themselves make that clear.
As a result, the Court ruled that the Policy Requirement violated the plaintiffs’ First Amendment rights and affirmed a preliminary injunction halting its enforcement against them. Alliance I, 570 U.S. 205 (2013).
After the Court ruled in Alliance I, in September 2014, HHS and USAID issued funding notices that explicitly exempted all domestic NGOs from the Policy Requirement but continued to apply the Requirement to foreign NGOs, including the plaintiffs’ affiliates. The plaintiffs sued again, arguing (for the first time) that the Policy Requirement’s application to their foreign affiliates violated their own First Amendment rights. In short, the plaintiffs said that their close affiliation with foreign NGOs meant that those NGOs’ certification under the Requirement could be imputed to them.
The district court agreed. The court applied the Court’s ruling in Alliance I and issued a permanent injunction, halting the government’s application of the Policy Requirement to the plaintiffs’ foreign NGO affiliates. (During the district court proceedings, the parties attempted to agree upon a definition of “affiliate” that would resolve the plaintiffs’ complaint. They apparently failed.) The United States Court of Appeals for the Second Circuit affirmed. This appeal followed.
The government argues that it can apply the Policy Requirement to foreign entities operating abroad under basic constitutional principles. It first points out that as a general matter the government can set limits on the use and distribution of federal funds, and that recipients who object to those limits can simply decline the funds. It next notes that this general principle sometimes gives the government the ability to put unconstitutional conditions, including violations of the First Amendment, on the receipt of federal funds. But the government argues that the unconstitutional conditions doctrine only applies to recipients that actually have constitutional rights. It contends that foreign entities operating abroad have no such rights. Therefore, it contends that its denial of funds based on a foreign entity’s failure to comply with the Policy Requirement cannot violate that foreign entity’s First Amendment rights.
The government argues that the Third Circuit got it wrong when it held that the First Amendment bars enforcement of the Policy Requirement against the plaintiffs’ foreign affiliates, because such enforcement violates the plaintiffs’ own free speech rights. The government contends that “[n]o legal principle supports that proposition.” It claims that the plaintiffs themselves acknowledged that they are legally distinct from their foreign affiliates, and that basic tenets of corporate law reinforce that conclusion. The government says that the Court cannot treat the plaintiffs and their affiliates as a single entity, because, again, corporate law does not permit legally distinct entities to be treated as one, even if, as here, they share similar names, logos, and brands. The government asserts that the Court “has repeatedly enforced corporate separation even when presented with closer affiliations.”
The government argues that nothing in Alliance I suggests the contrary. The government claims that the Court in that case said nothing about whether the government could require foreign affiliates to adopt the Policy Requirement, and that it only considered affiliated organizations (in the passage quoted above) in order to show that their own speech could not alleviate any First Amendment problem with applying the Policy Requirement to the plaintiffs. The government says that this analysis has no bearing on this case, because the government now does not apply the Policy Requirement to domestic NGOs (and so there is no need to analyze whether their foreign affiliates might speak for them).
Finally, the government argues that there is no other basis to invalidate the application of the Policy Requirement to domestic NGOs. It says that such an application does not undermine the goals of the Leadership Act (as the plaintiffs contend), because, after all, Congress itself wrote the Policy Requirement into the Act. In any event, the government claims that efforts to eradicate prostitution and sex trafficking are perfectly consistent with a fight against HIV and AIDS, and that it has applied the Policy Requirement to foreign entities since the Leadership Act was enacted, without hindering that fight.
The plaintiffs counter that the government’s application of the Policy Requirement to their foreign affiliates infects their own speech in violation of the First Amendment. The plaintiffs say that the Policy Requirement, unlike a restriction on speech, necessarily taints all “clearly identified” affiliates, no matter where they operate, including the domestic plaintiffs themselves. They contend that the Court recognized this in Alliance I (again, in the passage quoted above), and that the government’s enforcement of the Policy Requirement to their foreign affiliates overseas therefore necessarily infringes on their own First Amendment rights.
The plaintiffs argue that this analysis is consistent with the more general constitutional prohibition on government forcing citizens to express views that they find objectionable. The plaintiffs contend that compelled speech (in contrast to restricted speech) “imprint[s] the speaker itself with the government’s view and depriv[es] the speaker and those to whom its speech is attributed of control over their message.” They say that the courts can’t remedy compelled speech by simply opening alternative channels for speech (as they can with restricted speech). Instead, the plaintiffs claim that the courts “must ensure that the government’s viewpoint is no longer forcibly imputed to the speaker.”
The plaintiffs argue that the record supports their points. They contend that they and their foreign affiliates are “unified organizations,” with “the same name, brand, and logo,” and that they “speak as one.” The plaintiffs say that the government’s own affiliate regulations make this clear: under those regulations, affiliates “must maintain objective independence from any entity that does not adhere to the recipient’s anti-prostitution pledge.” The plaintiffs claim that without an injunction against the enforcement of the Policy Requirement to their foreign affiliates, they have to “conform [their] own speech and conduct to [their] affiliate’s pledge to keep from jeopardizing not only their shared identity and reputation as a global public-health organization but also their federal funding.” The plaintiffs contend that formal legal separation with their affiliates does not change any of this: “[a]n organization-wide affirmation of belief will necessarily be attributed to any clearly identified components of the organization, regardless of their corporate structure.”
Finally, the plaintiffs assert that the government’s other arguments have no merit. They say that nothing in the record supports the government’s claim that upholding the injunction would undermine the Leadership Act or foreign aid more generally. They also say that nothing in the record supports the government’s “specter of sham affiliations,” especially given that the plaintiffs are “well-known, steadfast partners that for nearly two decades have worked with the government to save millions of lives.”
For the plaintiffs, the Policy Requirement, however the government enforces it, has always been a significant impediment to their hard-won relationships and credibility, and therefore to their tireless and sustained efforts, in their fight again HIV and AIDS around the world. That’s no small thing: the plaintiffs are major players in this global fight and, as they say, have been working with the government “for nearly two decades . . . to save millions of lives.” Moreover, for the plaintiffs and the communities they serve, the plaintiffs are one with their foreign affiliates. They not only share the same name, brand, and logo; they also share the same approach and messaging. For the plaintiffs, their legal distinction from their foreign affiliates is a mere formality, driven by the international, or multi-national, nature of their work, and the government’s enforcement of the Policy Requirement against their foreign affiliates is simply an attempt to sidestep the principles in Alliance I.
On the other side, for the government this case is about enforcing the Policy Requirement—and thus cracking down on prostitution and sex trafficking in the fight against HIV and AIDS—in whatever ways remain available after Alliance I. For the government, this objective is an essential part of the fight against HIV and AIDS under the Leadership Act, and enforcing the Policy Requirement against foreign entities is simply its way of fully enforcing the Act.
In short, this case is much more than a mere postscript to Alliance I. Indeed, for both sides, this case amounts to an entirely new challenge to, or defense of, the Policy Requirement. And the Court’s ruling will be every bit as important as its earlier ruling in Alliance I.
Friday, May 1, 2020
The Seventh Circuit once again struck AG Barr's unilateral conditions on a federal law-enforcement grant to sanctuary cities, ruling that the conditions violated the separation of powers and upholding a nationwide injunction against their enforcement.
The ruling is yet another significant victory for sanctuary cities. Just one circuit, the Second Circuit, has upheld the conditions; four other circuits have overturned them. We last posted on the issue--on the Second Circuit ruling--here.
The court ruled that the AG lacked statutory authority to impose the notice, access, and compliance conditions on Chicago's Byrne JAG grant. The court also ruled that the AG lacked authority to impose two additional conditions, the harboring condition (which prohibits grant recipients from making any "public disclosure . . . of any federal law enforcement information" in order to conceal or harbor a fugitive from justice) and the additional certification condition (which requires recipients to certify that they don't have any law or policy that would impede federal immigration enforcement). (The AG added these last two conditions while the case was pending.)
The court affirmed the district court's nationwide injunction because of the nature of the AG's violations (in particular, the AG's constantly evolving claimed statutory authority, and the AG's imposition of new conditions, all seemingly designed to work around existing injunctions) and because of the nature of the grant (a formula grant, so that Chicago's portion depends on the portions awarded to other jurisdictions nationwide).
Judge Manion concurred in the court's ruling that the conditions violate the separation of powers, but dissented as to the nationwide injunction.
The Eleventh Circuit ruled this week that a group of Florida voters and organizations lacked standing to challenge the state's law that specifies the order of candidates on its ballots. The ruling dismisses the case and leaves the state law in place.
The plaintiffs in the case--Democratic state voters and organizations--challenged Florida's law that puts the candidate of the party that won the last gubernatorial election in the state at the top of the list of candidates for each office. They claimed that this gives up to a five percent advantage to that party (now Republicans), on average, in elections across the state, and that this violated their right to vote. The district court agreed.
But the Eleventh Circuit ruled that the plaintiffs lacked standing. The court held that the plaintiffs couldn't show an injury in fact that flowed from the defendant Secretary of State's actions and that could be redressed by a ruling of the court.
As to injury, the court held that the individual voters couldn't show a direct injury to their right to vote, and that their claims of vote dilution were insufficient to establish standing (because they relied on the statewide average vote dilution, not their own particular dilution). The court held that the organizations lacked associational standing for the same reasons, and that they lacked organizational standing (on their own) under a diversion-of-resources theory. According to the court, that's because they failed to show what activities they'd divert their resources from in order to deal with the ballot-sequence law.
As to causation and redressability, the court said that the Secretary didn't have authority under state law to enforce the ballot-sequence provision--the county supervisors do, and they're not part of the case--and so the plaintiffs couldn't show that the Secretary's actions caused any injury, or that judicial relief aimed at the Secretary would redress any injury.
Judge William Pryor concurred, arguing that the case also raised a non-justiciable political question (because the court didn't have "discernable and manageable standards" to work it out).
Judge Jill Pryor agreed that the plaintiffs failed to demonstrate an injury. But she argued that the question of the Secretary's authority under state law was much more complicated than the majority made it out to be, and she therefore wouldn't have ruled on causation and redressability. Judge Pryor argued that the court, by ruling on those points when it wasn't necessary, "creates a circuit split on the connection a state official must have with a challenged state statute for a plaintiff to satisfy traceability and redressability."
Monday, April 27, 2020
In a brief per curiam decision, the United States Supreme Court has declared the controversy in New York State Rifle & Pistol Association Inc. v. City of New York, New York moot.
Recall from our discussion of the oral argument that there was a substantial mootness question: the City of New York changed the regulation to allow for transport to another residence and a range or shooting club, whether or not those secondary places are within the City. Additionally, the state of New York amended its law to provide for the legality of transport. The Court had previously rejected a filed "Suggestion of Mootness" and instructed the parties to address the issue at oral argument.
Recall also that a unanimous panel of the Second Circuit, affirming the district judge, rejected a constitutional challenge to the New York City regulation regarding "premises license" for a handgun. Under the former 38 RCNY § 5-23, a person having a premises license “may transport her/his handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, in a locked container, the ammunition to be carried separately.” The definition of "authorized" range/shooting club, however, includes a limit to facilities located in New York City and is the essence of the plaintiffs' challenge. The New York State Rifle & Pistol Ass'n, as well as three individual plaintiffs, argued that this limitation is unconstitutional pursuant to the Second Amendment, the dormant commerce clause, the right to travel, and the First Amendment. Their specific arguments centered on the two instances: that one plaintiff was prohibited from taking his handgun to his second home in Hancock, New York; and that all plaintiffs wanted to take their handguns to firing ranges and competitions outside of New York City.
The Supreme Court's decision vacates that previous Second Circuit judgment.
Dissenting, Justice Alito, joined by Gorsuch, and in part by Thomas, argued that the mootness determination was incorrect and "permits our docket to be manipulated in a way that should not be countenanced." After a discussion of the mootness question, Alito's dissent proceeds to the merits, arguing that the New York City ordinance violated the Second Amendment, which "is not a close question," following "directly from" District of Columbia v. Heller (2008) and later discussing McDonald v. City of Chicago (2010). Alito wrote:
In sum, the City’s travel restriction burdened the very right recognized in Heller. History provides no support for a restriction of this type. The City’s public safety arguments were weak on their face, were not substantiated in any way, and were accepted below with no serious probing. And once we granted review in this case, the City’s public safety concerns evaporated.
We are told that the mode of review in this case is representative of the way Heller has been treated in the lower courts. If that is true, there is cause for concern.
In a brief concurring opinion, Kavanaugh stated he shared Alito's
concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.
In terms of "proper" application, recall that the Second Circuit panel tracked the analytic structure articulated previously by the Second Circuit. Recall that in 2015, in New York State Rifle & Pistol Ass'n v. Cuomo, the Second Circuit developed a rubric, similar to the methodologies employed by other circuits. (SCOTUS denied certiorari in that 2015 case). The first inquiry in this rubric is whether the Second Amendment is applicable. If it is, then the court determines the level of scrutiny. And finally, the court would apply that level of scrutiny. The Second Circuit in this case had concluded that intermediate scrutiny was the appropriate standard based on its analysis of two factors: "(1) ‘how close the law comes to the core of the Second Amendment right’ and (2) ‘the severity of the law’s burden on the right." It held the NYC law satisfied intermediate scrutiny.
Importantly for now, the methodology for determining what level of scrutiny should be applied in Second Amendment challenges remains unresolved by the Supreme Court.
Sunday, April 26, 2020
In a divided panel opinion in Gary B. v. Whitmer, the Sixth Circuit held that there is a fundamental right to a "basic minimum education" providing "access to literacy" as a substantive due process right under the Fourteenth Amendment.
Recall that in July 2018, United States District Judge for the Eastern District of Michigan Stephen Murphy dismissed the complaint in Gary B. alleging constitutional violations in the public schools in Detroit. For Judge Murphy, the constitutional right alleges here of "access to literacy" was sufficient to seemingly distinguish it from San Antonio Independent School District v. Rodriguez (1973), in which the Court rejected "education" as a fundamental right, but not ultimately distinguishable. The district judge found any right to access literacy was not cognizable as a fundamental right under the "standard" articulated in Washington v. Glucksberg (1997) and the complaint was furthermore seeking recognition of a prohibited "positive right" given that the Constitution only recognizes "negative" rights.
On appeal, the Sixth Circuit reversed this conclusion. (The Sixth Circuit did affirm the district court's finding that the claims for equal protection merited dismissal).
The 60 page opinion by Judge Eric Clay, joined by Judge Jane Branstetter Stranch, is impressively well-written and well-structured. After an extensive discussion of the facts and procedural history, the court articulates the standard for its review of a motion to dismiss and disposes of the mootness and sovereign immunity arguments. The court also relatively quickly dispatches the equal protection claim based on the pleadings as well as the claim that the state's compulsory education mandate gives rise to a due process claim (seemingly a "negative right" backup to the argument that the complaint failed as only seeking "positive" rights). The court reaches the central issue of the fundamental right to a basic minimum education, "meaning one that provides access to literacy" at about midway through the opinion.
The court first articulates the two-pronged Glucksberg test and then rehearses the United States Supreme Court's education cases, beginning with this overview:
Beyond the general framework for assessing whether an asserted right is fundamental, the Supreme Court has also, in a series of cases, addressed the extent of constitutional rights with respect to state-provided education. Its education jurisprudence teaches several lessons. First, the Court has found that there is no broad, general right to education. Rodriguez. Second, while no general right to education exists, the Supreme Court has specifically distinguished and left open “whether a minimally adequate education is a fundamental right.” Papasan v. Allain, 478 U.S. 265, 285 (1986); see also Rodriguez. Third, education is, at minimum, highly important to “maintaining our basic institutions,” and so the denial of public education to a discrete group of students “must be justified by a showing that it furthers some substantial state interest.” Plyler [v. Doe (1982)]. And fourth, the Court has addressed the critical link between education and race discrimination in America. We discuss the Court’s relevant education cases in turn, beginning chronologically.
[some citations and Sixth Circuit references omitted].
After its detailed discussion of Rodriguez and Plyler, incorporating the parties' arguments, the court discussed the lesser-known cases of Papasan v. Allain and Kadrmas v. Dickinson Public Schools (1988). The court notes that the plaintiffs in Papasan did argue that they were deprived an opportunity to acquire basic minimal skills under the state's funding scheme, but the Court did not reject their claim as a matter of substantive due process: "Instead, the Court found that, assuming such a right existed, the plaintiffs had failed to allege sufficient facts in support of their claim." This, the Sixth Circuit reasoned, was an "answer on pleadings, sure, but not on constitutional law." Similarly, the Sixth Circuit found that the "Court essentially repeated this non-answer in Kardmas." Kardmas involved a fee charged for the bus transportation to attend public schools, but given that the plaintiffs were attending school "despite the bus fee," their claim was interpreted not as a denial of education but for wealth-discrimination based the payment of the bus fee. The Sixth Circuit quotes Justice Marshall's dissent in Kardmas as stating that the Court had still not decided whether there was a fundamental right to a minimal education.
That is the question that the Sixth Circuit panel takes up, using the framework of the Glucksberg prongs, and finds that access to a minimal education is a fundamental right.
In its discussion of whether the right to a basic minimum education is "deeply rooted in our Nation's history and traditions," the Sixth Circuit finds that the historical prevalence of education makes it "deeply rooted in our history and tradition, even under an originalist view." The opinion then notes that 92% of the population lived under mandated state-policies of public education at the time of the Fourteenth Amendment, and further declares that "history should not be viewed only as a static point," discussing the expansion of education. Most interestingly, perhaps, Judge Clay's opinion for the Sixth Circuit majority then develops an argument that "Our nation's history of racial discrimination further reveals the historical and lasting importance of education and the significance of its modern ubiquity." At the conclusion of that discussion, including the criminalization of teaching enslaved persons to read, the court concludes:
There are two main takeaways from this history of racial discrimination in education, as well as from past interventions by the courts. First, access to literacy was viewed as a prerequisite to the exercise of political power, with a strong correlation between those who were viewed as equal citizens entitled to self-governance and those who were provided access to education by the state. Second, when faced with exclusion from public education, would-be students have repeatedly been forced to rely on the courts for relief. The denials of education seen in these cases and beyond are now universally accepted as serious injustices, ones that conflict with our core values as a nation. Furthermore, the substantial litigation devoted to addressing these exclusions reveals the unparalleled value assigned to literacy, which is viewed by our society as essential for students to obtain even a chance at political and economic opportunity.
As to the second Glucksberg prong, which looks for the right to be implicit in the concept of ordered liberty, the Sixth Circuit notes that the belief that education is a means of achieving equality is a belief that has persisted in the nation "since the days of Thomas Jefferson," and concludes that providing a basic minimal education is necessary to prevent arbitrary denials to children based on no fault of their own, which is "so essential to our concept of ordered liberty."
The Sixth Circuit opinion then takes up the counter-arguments, including those made by the dissenting judge, Eric Murphy (recently appointed to the Sixth Circuit and seemingly no relation to district judge Eric Murphy). The Sixth Circuit majority refutes the judicial restraint argument with an articulation, if unlabeled, of a representation-reinforcement argument, with a footnote discussing its applicability to due process as well as equal protection:
But it is unsurprising that our political process, one in which participation is effectively predicated on literacy, would fail to address a lack of access to education that is endemic to a discrete population. The affected group—students and families of students without access to literacy—is especially vulnerable and faces a built-in disadvantage at seeking political recourse. The lack of literacy of which they complain is exactly what prevents them from obtaining a basic minimal education through the normal political process. This double bind provides increased justification for heightened judicial scrutiny and the recognition of the right as fundamental.
The Sixth Circuit majority also takes up the positive/negative rights dichotomy, first arguing that the constitutional tort at issue in DeShaney v. Winnebago County of Department of Social Services (1989), has no applicability to public education, and that even if it did, it is the state that is "creating the danger" here (rather than a private actor), thus bringing the case within the state-created danger exception.
Finally, with due recognition that the case is before the Sixth Circuit on a motion to dismiss, the majority acknowledged that it would be difficult to "define the exact limits of what constitutes a basic minimum education" sufficient to provide access to literacy. However, the majority stated that it would seem to include at least three basic components: facilities, teaching, and educational materials (e.g., books). The case is therefore remanded to the district court to proceed.
But how the case will proceed is uncertain. In a usual scenario, the State would seek review. The Michigan Attorney General, Dana Nessel, however has stated that she is "overjoyed" with the Sixth Circuit's decision. (It was originally defended under a previous Michigan administration). There is also some lack of clarity regarding the proper defendant or appellant, given that the school district is now under more local control (an issue that the Sixth Circuit discussed in its mootness analysis). If a party does not seek review, there is the possibility that the en banc Sixth Circuit may decide to consider the case. Under Sixth Circuit rules and internal operating procedures, 6 I.O.P. 35(e), "any member of the en banc court may sua sponte request a poll for hearing or rehearing en banc before a party files an en banc petition" and the "clerk will immediately circulate voting forms to the en banc court." The en banc judges are judges in "regular active service" (meaning not senior judges) and including the panel judges no matter their status. It's quite possible that the dissenting judge would request a poll.
Thursday, April 23, 2020
Check out Prof. Barry Sullivan's (Loyola Chicago) outstanding and wide ranging Democratic Conditions, part of the Loyola Law Review symposium on democracy. Sullivan starts with the increasing alienation of non-elites from elite-run government and a survey of the "disconnect between the rhetoric of constitutional democracy and its reality." He moves to a comparative study of democracy and an exploration of constitutional democracy.
Sullivan then focuses on three ways our current system frustrates constitutional democacy--our lack of understanding of the anti-democratic features of our system, our historical preference for defining our political community in exclusionary terms, and justifiable lack of public confidence in our electoral system--and what to do about it.
Monday, April 20, 2020
The Court issued its opinion in Ramos v. Louisiana with a majority concluding that the Sixth Amendment confers a right to a unanimous jury verdict that is incorporated against the states through the Fourteenth Amendment.
Recall from the oral argument on the very first day of the 2019-2020 term that almost all rights have now been incorporated through selective incorporation, and that the unanimous jury requirement subject to an exception of the incorporation of the trial by jury clause. As Justice Alito phrased it in an opinion for the Court in McDonald v. City of Chicago (2010) (in which a closely divided Court held that the Second Amendment is incorporated), the general rule is that rights "are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”
There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon, 406 U. S. 404 (1972).
The precedential value of Apodaca, a case in which the Justices split 4-1-4, was at the center of the oral argument and is at the center of the Court's fragmented opinions in Ramos. The lone Justice in Apodaca is Justice Powell, who is specifically discussed throughout the opinions. Powell's adoption of what the Court calls the "dual-track" incorporation, and seemingly Justice Powell himself, does he does not fare very well in the Court's opinion, including quoting Powell that he was simply "unwilling to follow the Court's precedents" regarding incorporation.
Writing for the Court, Justice Gorsuch's opinion is joined by Justices Ginsburg, Breyer, Sotomayor, and Kavanaugh, but not in full. Indeed, the would-be majority loses Kavanaugh regarding some of its discussions of precedent and stare decisis, and loses both Kavanaugh and Sotomayor regarding a discussion of the specific stare decisis accorded to Apodaca.
The Court clearly concludes, however, that there is a Sixth Amendment right to a unanimous jury verdict and that this right is incorporated as against the states.
Justice Thomas concurs, but renews his argument that the Privileges or Immunities Clause of the Fourteenth Amendment is the proper vehicle for incorporation. However, unlike in McDonald, Justice Thomas' vote is not necessary to constitute a majority.
Justice Alito dissented, joined by Chief Justice Roberts, as well as for most of his opinion, by Justice Kagan.
Certainly this case is important for both the constitutional doctrine of incorporation and for constitutional criminal procedure under the Sixth Amendment. But the Justices' various opinions discussing stare decisis might be read to portend larger developments. Justice Kavanaugh's concurring opinion is most explicit in this regard: he outlines his views on stare decisis and supports his conclusion why Apocada should be overruled. Justice Alito's dissenting opinion argued for honoring stare decisis, but interestingly, Justice Kagan does not join that portion of the dissent arguing that the "reliance" in this case "far outstrips" other recently overruled cases.
Two other matters bear notice.
First, the racist roots of the non-unanimous jury verdict requirement is given attention by the Court, highlighted in Justice Sotomayor's concurring opinion, and minimized by the dissenting opinion (arguing that the opinion does not apply only to Louisiana and Oregon, but any future state that might adopt non-unanimous verdicts, even if all the lawmakers were "angels").
Second, there is the rhetoric and tone of some of the opinions. There is an evident conversation between the majority and dissent, with Gorsuch's opinion veering toward a condescending tone punctuated by rhetorical questions and Alito's opinion answering with accusatory and aggrieved notes.
But as a matter of incorporation doctrine, after last Term's Timbs v. Indiana regarding the Eighth Amendment's excessive fines provision, the Court's decision in Ramos now leaves only the Fifth Amendment grand jury requirement and the Seventh Amendment's right to a jury trial in a civil case as the federally applicable rights that are not incorporated as against the states. And then there is that Third Amendment.
Friday, March 27, 2020
CALL FOR PAPERS
We are pleased to announce a call for papers for a special issue of the Nevada Law Journal on “Race AND Gender AND Policing.” Guest-edited by the faculty board of UNLV Boyd School of Law’s Program on Race, Gender & Policing, this issue will bring together scholars of Law, Criminology, and related fields for an interdisciplinary conversation centered on the simultaneous analysis of race and gender and policing. We construe this topic broadly as encompassing all forms of surveillance and control, including but not limited to aspects of local law enforcement, national immigration policies, and school discipline rules that reflect or construct assumptions about both race and gender.
Interested parties should submit abstracts of at least 375 words (we encourage longer abstracts and draft papers are permitted) to email@example.com with the heading “Call For Papers.” Submissions may be Essays of approximately 6,250 words or Articles of significantly greater length. Abstracts are due on or before May 5, 2020. We will notify people of their acceptance by May 20, 2020. Complete first drafts of Essays will be due August 20, 2020. Submissions will be published in Volume 21, Issue 3 of the Nevada Law Journal, which will print in April 2021.
The Program on Race, Gender & Policing explores the relationship between race, gender, and the ways people are policed. Policing refers to not only the activities of law enforcement officers, but also the ways that other actors, such as immigration officials, prison officials, schools, and private civilians, participate in surveillance and control. The Program seeks to foster interdisciplinary research and concrete reforms in Nevada, the nation, and beyond. Our goal for this symposium is nothing less than to produce an issue that becomes the best statement of how race and gender and policing come together.
Potential paper topics include, but are in no way limited to, the following:
- Analyses of how police officers view both race and gender;
- Constitutional issues surrounding policing of both race and gender;
- Criminalization of Latinx identities;
- Police assaults against women of color;
- Policing of LGBTQ+ in Asia;
- Differential race and gender effects of private patrolling of space;
- Policing of Native women;
- Racial profiling and masculinities;
- Disappearances of women in Mexico, the U.S., Canada, or elsewhere;
- Disparities in policing in schools;
- Differential racial effects of low rape clearance rates;
- [Anything else addressing a form of policing and both race and gender].
We also encourage activists and practitioners to write accounts of their activities and cases that bring together issues of race and gender and policing. Regardless of an author’s topic, the editors will carefully review all proposals and make selections based on quality and relevance. We encourage both veterans of this topic and emerging scholars to submit proposals.