Thursday, August 19, 2021

Check it Out: Lupu and Tuttle on Fulton and the Future of Free Exercise

You gotta check out Chip Lupu and Bob Tuttle's outstanding piece on Fulton and the future of free exercise, The Radical Uncertainty of Free Exercise Principles: A Comment on Fulton v. City of Philadelphia, forthcoming in the American Constitution Society Supreme Court Review (OT19 Term's here). In addition to reviewing Fulton and examining the opinions (you'll especially want to check out their critique of Justice Alito's opinion), Lupu and Tuttle integrate the Court's COVID cases into the trend line and argue that

[t]hese moves, taken to their logical end, effectively undo Smith. The history of Free Exercise Clause adjudication, however, suggests that neither the Supreme Court nor the lower courts will take the Free Exercise Clause to the religion-favoring extremes that this trend invites.

Read it.

August 19, 2021 in Free Exercise Clause, News, Religion, Scholarship | Permalink | Comments (0)

Sixth Circuit Upholds Tenured Prof's Termination, Rebuffs Due Process, First Amendment Claims

The Sixth Circuit ruled that the University of Louisville did not violate procedural due process or free speech when it disciplined and later terminated a tenured professor and department chair for signing an unauthorized lease on behalf of the department and meeting with private equity firms interested in buying or financing the department.

Dr. Henry J. Kaplan, tenured prof and Chair of UofL's Department of Ophthalmology and Visual Sciences, sued the school after it fired him for signing the lease and meeting with potential investors. Kaplan argued that his termination violated due process, his reputation and career interests, and academic freedom. The court rejected each claim.

As to due process, the court ruled that Kaplan didn't have a property interest in his administrative position (chair of the department), so due process didn't apply. It ruled that the school's process for terminating his tenured professorship satisfied due process, because the school notified Kaplan of the issues prior to any disciplinary action; it terminated him pursuant to school rules that allow the school to terminate a faculty member for "[n]eglect of or refusal to perform one's duty" that "substantially impairs [their] effectiveness as a faculty member"; it conducted a post-termination hearing (a "Cadillac plan of due process"); and an alternative pre-deprivation hearing wouldn't have been any more protective of Kaplan's property right in his faculty position.

The court held that Kaplan forfeited any reputational-interest claim because he didn't request a name-clearing hearing. It ruled that the school didn't violate his career interest, because it didn't prevent Kaplan from seeking future employment in his chosen career.

Finally, the court ruled that Kaplan misfired on his academic freedom claim. "Simply put, UofL suspended Kaplan because of his attempts to circumvent UofL's cost-control measures and not because of any ideas he advocated or research he conducted."

August 19, 2021 in Cases and Case Materials, First Amendment, Fourteenth Amendment, News, Opinion Analysis, Procedural Due Process, Speech | Permalink | Comments (0)

Fifth Circuit Upholds Ban on Common Previability Abortion Procedure

The full Fifth Circuit upheld Texas's ban on a common second-trimester, previability abortion procedure, ruling that the law didn't create an undue burden on a woman's right to abortion. The law and ruling limit the way doctors can perform a "dilation and evacuation" abortion in Texas: they cannot use forceps to separate, terminate, and remove the fetus (what the state calls a "live dismemberment" procedure); instead they can only use a suction technique to remove a fetus, or cause "fetal death" (through digoxin injections) prior to removing the fetus with forceps.

The ruling also deepens a circuit split over the Court's controlling opinion--and the operative test for abortion restrictions--in June Medical.

The case, Whole Woman's Health v. Paxton, tests Texas's restriction on the common D&E procedure for second-semester, previability abortions. Doctors who perform these abortion use one of three principal methods: (1) they use a suction method alone to terminate, separate, and remove a fetus; (2) they use suction and forceps together to terminate, separate, and remove a fetus; or (3) they use "fetal-death" techniques (like digoxin injections) to terminate the fetus before removing it with forceps. The Texas law bans the use of the second technique, except in cases of a "medical emergency."

The court ruled--contrary to the district court--that the law wasn't facially unconstitutional. In short, it held that the ban didn't create an undue burden on a woman's right to abortion, because the law allowed doctors to perform abortions using the suction method alone, or by causing "fetal death" prior to fetal evacuation.

Along the way, the court held that Chief Justice Roberts's opinion in June Medical was the Court's controlling opinion (under the Marks) rule, and so it didn't have to balance the burdens of the law against the state's asserted benefits of the law; instead, it examined only whether the law created an undue burden. (The balancing test used by the plurality in June Medical tends to work in favor of a woman's right to abortion, especially where, as here and in June Medical, the state asserts only weak (or no) benefits from the restriction. Chief Justice Roberts's approach tends to work against a woman's right to abortion in those situations, because it ignores the state's relatively weak benefits, or its lack of benefits altogether.) The court's ruling on this score aligns it with the Eighth and Sixth Circuits, but puts it at odds with the Seventh and Eleventh Circuits.

Five judges dissented. Three of the dissenters argued that the case was controlled by Stenberg v. Carhart (2000), where the Court overturned a state restriction that operated just like Texas's law. Moreover, these three said that the suction method and the "fetal-death" method both created undue burdens on a woman's right to abortion, because both procedures created additional risks, and that those risks outweighed the state's asserted benefits of the law. (The dissenters applied the balancing test (not Chief Justice Roberts's approach) from June Medical.)

Two other dissenters argued that the court should've simply remanded the case after clarifying that Chief Justice Roberts's approach would control, and clarifying the court's views on the Supreme Court's abortion jurisprudence more generally.

August 19, 2021 in Abortion, Cases and Case Materials, Due Process (Substantive), News, Opinion Analysis | Permalink | Comments (0)

Wednesday, August 18, 2021

Ninth Circuit Affirms Constitutionality of Department of Labor ALJs

The Ninth Circuit ruled that removal protections for Department of Labor Administrative Law Judges did not violate the separation of powers. The ruling rebuffed a claim by a coal corporation in a Black Lung Benefits Act case. It means that the agency ruling against the corporation stands, and that DOL ALJs are safe . . . for now.

That "for now" is because the Supreme Court has been on a tear to rule that more and more removal protections violate the separation of powers. This case could give the Court another opportunity to move in the direction of complete presidential control over the removal of executive officers--toward a robust "unitary executive theory."

The case, Decker Coal v. Pehringer, arose after a DOL ALJ awarded a claimant Black Lung Benefits Act benefits, and the Benefits Review Board upheld the award. Decker Coal filed a motion for reconsideration and a motion to reopen the record; the ALJ denied the motions, and the BRB affirmed. This appeal followed.

The Ninth Circuit rejected Decker Coal's argument that removal protections for DOL ALJs violated the separation of powers. By statute, DOL ALJs can be fired only for good cause determined by the Merit Systems Protection Board, members of which, in turn, can be removed by the president only for "inefficiency, neglect of duty, or malfeasance in office." Decker claimed that the dual for-cause removal protection violated the Court's ruling in Free Enterprise Fund, which held that the dual for-cause removal protection for members of the PCAOB violated the separation of powers. The Ninth Circuit disagreed, for three reasons.

First, the court ruled that in contrast to PCAOB members, "the ALJ here was performing a purely adjudicatory function in deciding the BLBA claim."

Next, the court said that DOL itself decided to use ALJs to adjudicate BLBA benefits. It noted that by statute DOL could have used any "[q]ualified individuals appointed by the Secretary of Labor," including individuals who did not enjoy for-cause removal protections, and that the president could order DOL to use such individuals instead of ALJs. In other words, the court said that Congress didn't impermissibly encroach upon the president's power to direct the executive branch; DOL (and ultimately the president) did, and they can change it if they like.

Finally, the court said that the president can exercise control of ALJs through the BRB, which reviews ALJ decisions, and members of which are appointed without removal protections by the Secretary of Labor (who, of course, enjoys no removal protections).

August 18, 2021 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Tuesday, August 17, 2021

Ninth Circuit Rejects Civil Damages Claim for Border Shooting

The Ninth Circuit rejected civil damage claims by the family of a Mexican victim who was shot dead on the U.S.-Mexico border by a U.S. Border Patrol officer. The ruling leaves the family without a civil damage remedy for the shooting.

The case, Perez v. U.S., arose when a U.S. Border Patrol officer shot and killed a Mexican citizen on the U.S. side of the U.S.-Mexico border fence. Although the parties differ as to the facts, it appears that the Officer shot the victim after the victim threw, or threatened to throw, rocks. (Border Patrol policy apparently authorizes officers to use deadly force against individuals who throw rocks. This is called the "Rocking Policy.")

The victim's family sued under the Alien Tort Statute, the Federal Tort Claims Act, and Bivens. The Ninth Circuit rejected each of the claims.

As to the ATS claim, the court said that the U.S. hadn't waived sovereign immunity, and that an ATS claim doesn't circumvent immunity. Even if the plaintiffs alleged a violation of international law, the court said that U.S. sovereign immunity prevented them from succeeding in an ATS claim.

As to the FTCA claim, the court said that the plaintiffs filed out of time, and failed to satisfy requirements for equitable tolling. In particular, the court said that the plaintiffs mistakenly believed that they couldn't simultaneously file an FTCA claim and a Bivens claim (which is why they didn't initially file an FTCA claim within time), when circuit precedent said that they could. Because they made a mistake of law, the court said that it couldn't toll the FTCA statute of limitations.

Finally, as to Bivens, the court ruled that the case raised a new Bivens context, and that special factors counseled against extending a Bivens remedy. In particular, the court said that the plaintiffs' claim against the Border Patrol Chief (for failing to reverse the Rocking Policy) would improperly involve the court in formulating and implementing policy. And the court said that the plaintiffs' claims against the officer who shot the victim raised national security concerns.

The court acknowledged that the ruling left the family without a civil damage remedy for the killing. But it also said expressed "regret that the law compels this result."

August 17, 2021 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, August 16, 2021

Full Seventh Circuit Keeps Challenge to State Sex Offender Registration Alive

The full Seventh Circuit today rebuffed certain constitutional challenges to Indiana's Sex-Offender Registration Act (SORA) as applied to pre-Act offenders required to register in another state. At the same time, however, the court remanded an equal protection claim for further consideration.

The ruling means that the plaintiffs still have a live challenge to the Act. And, given the court's remand instruction and the lower court's earlier ruling, it's likely a winning one.

The case, Hope v. Commissioner of Indiana Department of Correction, tests Indiana's SORA as applied to pre-act offenders who were required to register in another state before SORA's enactment. That matters, because the Indiana Supreme Court interpreted the Act not to require Indiana pre-Act offenders to register. (It said that requiring registration would violate the state constitution's Ex Post Facto Clause.) So Indiana's SORA requires pre-Act offenders to register if they were required to register in another state before SORA. But it doesn't require pre-Act offenders to register if they had no pending out-of-state registration requirement.

Offenders with an out-of-state requirement sued, arguing that the Act, as interpreted by the state supreme court, violated their right to travel, the federal Ex Post Facto Clause, and equal protection. The district court ruled in the plaintiffs' favor on all claims, and a panel of the Seventh Circuit affirmed on the right to travel claim. The full court reversed.

The court ruled that the scheme didn't violate the right to travel under the Fourteenth Amendment Privileges or Immunities Clause--"for those travelers who elect to become permanent residents, the right to be treated like other citizens of that state." That's "because it does not expressly discriminate based on residency, as consistently required by the Supreme Court." Instead, the court said that while the Act "may affect newer residents disproportionately,"

[a]s a statutory matter, SORA obligates all offenders--both old and new residents--to register based on prior convictions. Indiana's Ex Post Facto Clause then relieves a subset of those who must register from that statutory obligation. Receiving the clause's benefits, though, does not depend on when an offender became an Indiana resident but on whether one is subject to an existing registration requirements. That requirement can come from Indiana, or from another state. The twist in this case is that for those offenders like the plaintiffs, convicted before Indiana's SORA covered their crimes, such a registration obligation must come from elsewhere.

(The dissent argued that this different treatment--based solely on whether a pre-Act offender has traveled to another state or not--is the model of infringing on the right to travel.)

The court next ruled that SORA didn't violate the federal Ex Post Facto Clause, because the registration requirement isn't punitive.

But the court remanded the question whether SORA violated the Equal Protection Clause under rational basis review--and all but invited the district court to rule in favor of the plaintiffs. The court wrote,

The plaintiffs may still challenge Indiana's application of SORA to them because it treats them differently than similarly situated Indiana offenders. SORA, as modified by the Indiana Supreme Court's constitutional overlay, creates two classes of pre-SORA offenders--those who must register in Indiana, and those who are free from that requirement. Indiana distinguishes between the two groups based solely on whether the pre-SORA offender had a registration obligation in another state. For example: two lifelong Indiana residents, both with pre-SORA convictions, will be treated differently if one commutes into Chicago for work--and so is subject to Illinois's reporting requirements--while the other never leaves Indiana. The distinction holds true for offenders who attend school in another state or who have lived in another state imposing registration obligations on them. In short, two similarly situated Indiana offenders may have vastly different legal obligations simply because one of them has an out-of-state registration obligation.

The court instructed the lower court to apply rational basis review to this distinction, and cautioned that it "should be undertaken with care" and "thorough[] develop[ment of] the factual record." It said that "[r]ational basis review favors the State but does not ensure an automatic win."

August 16, 2021 in Cases and Case Materials, Equal Protection, News, Opinion Analysis, Privileges or Immunities: Fourteenth Amendment , Travel | Permalink | Comments (0)

Sunday, August 15, 2021

District Court Halts Biden Administration Rescission of MPP

Judge Matthew Kacsmaryk issued a permanent, nationwide injunction halting the Biden Administration's rescission of the Trump Administration Migrant Protection Protocols policy. The court ruled that the Biden Administration's rescission was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," in violation of the Administrative Procedure Act.

The sweeping and aggressive ruling also directs the Administration to provide monthly updates to the court on immigration action at the Southwest Border in order "[t]o ensure compliance with this order."

The ruling means that the Biden Administration will have to reinstate MPP, unless and until it comes up with a more thorough justification for rescission . . . and unless and until it can find the resources to detain immigrants domestically pending their asylum or deportation proceedings.

The court stayed the ruling for seven days, however, to give the Biden Administration time to seek a stay pending appeal. The Administration surely will seek a stay and appeal; there's much more to come in this case.

The case, Texas v. U.S., tests the Biden Administration's rescission of the Trump Administration's MPP, under which DHS sent non-citizens to Mexico pending their removal proceedings. The Biden Administration rescinded the program and explained its decision in a June 1 memo. (Here's the DHS MPP info page.)

The court ruled that the memo didn't provide a sufficient justification for rescission under the Administrative Procedure Act. It said that the memo failed to consider the putative benefits of MPP, the costs of revoking MPP, the states' reliance interests in MPP, and any other policies short of termination that would meet its interests. Moreover, the court said that the memo's stated justifications were arbitrary.

The court vacated the memo and ordered the Biden Administration to reinstate MPP, unless and until the Administration could properly justify rescission and demonstrate that it can detain immigrants domestically pending their asylum or deportation proceedings.

(That last bit is in response to the Administration's argument that it lacks sufficient resources to detain all immigrants domestically pending their proceedings--and that's why they parole many of them. The court declined to treat the relative lack of resources as a legal constraint on the Administration's ability to detain, however, and instead focused on the INA's language that DHS "must" detain immigrants. (If Congress tells the Administration that it "must" detain, but only allocates a portion of funding to achieve that requirement, another understanding would be that Congress instructs the Administration that it "must" detain only up to the resources that it allocated.))

Remarkably, the court ordered the Administration to report monthly on border activity in order "[t]o ensure compliance" with its order.

The Administration will undoubtedly seek a stay pending appeal from the Fifth Circuit, and then appeal on the merits. This one's only just begun. Stay tuned.

August 15, 2021 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Saturday, August 14, 2021

Fourth Circuit Says Public Charter School Not a State Actor for Dress Policy

The Fourth Circuit ruled that a public charter school isn't a state actor for purposes of its dress policy, and dismissed an equal protection challenge to that policy. At the same time, the court ruled that Title IX covers the policy, and remanded the case for further consideration on that statutory ground.

The case, Peltier v. Charter Day School, tests CDS's policy that requires girls to wear skirts or skorts. CDS's stated reasons for the policy are baldly based on romantic paternalism and outdated ideas about sex-based differences; and the plaintiffs provided plenty of evidence that the policy harmed girls. Still, the court ruled that the plaintiffs couldn't assert an equal protection claim under Section 1983, because CDS isn't a state actor.

The court ruled that despite North Carolina's charter, designation, and funding of CDS as a "public" school, functional considerations made CDS a non-state-actor for the purpose of its dress policy.

Functionally, North Carolina's charter school statutory scheme disentangles the state from the day-to-day operations of CDS, and in particular CDS's promulgation of a dress code. The statutory scheme clearly reflects a "legislative policy choice" to contract with privately operated schools to provide a hands-off approach by the state, enabling pedagogical experimentation and school choice. Likewise, the fact that CDS is directly publicly funded, rather than reimbursed for tuition it charges by the state, is a formal distinction. . . . That charter schools cannot charge tuition in North Carolina merely reflects the legislative designation of the schools as public, and thus open equally, in theory, to all. It does not functionally change the relationship between CDS and the state.

The court went on to say that its ruling is limited to CDS's dress policy, suggesting that CDS may be a state actor for other purposes, and that its ruling doesn't license CDS to discriminate (because there are numerous other anti-discrimination requirements that apply to it). Moreover, it said that CDS's justification wouldn't have satisfied equal protection standards if CDS were a state actor.

The court also ruled that Title IX applied to the dress policy, notwithstanding a 1982 Department of Education move to revoke a previous regulation that applied Title IX to "any rules of appearance." The court applied Chevron and concluded that nothing in Title IX prevented its application to dress policies.

Judge Kennan dissented on the state-actor portion of the ruling. "I therefore part company with my friends in the majority and would hold that actions of [CDS], a public school created under North Carolina law and funded almost entirely by governmental sources, are actions of the state for purposes of Section 1983. Moreover, I would hold that CDS' enforcement of the skirts requirement, with its many attendant harms to girls, denies these girls at this public school their constitutional guarantee of Equal Protection under the law."

August 14, 2021 in Cases and Case Materials, Equal Protection, News, Opinion Analysis, State Action Doctrine | Permalink | Comments (0)

Court Withholds Access to Some Videos, Grants Access to Others, of January 6 Insurrection

Judge Paul Friedman (D.D.C.) ruled yesterday that a media organization had a First Amendment right to some of the videos that the Justice Department submitted in support of detaining a January 6 insurrectionist, but not others.

The case, In re: Application for Access to Video Exhibits, involves 11 videos that DOJ submitted in support of detaining a defendant who is charged in connection with the insurrection. Eight of these are not sealed; three are sealed.

The court ruled that the media organization had a First Amendment right to all eight unsealed videos, and to one of the sealed videos, because it had already been released.

As to the two other sealed videos, the court ruled that DOJ overcame "the presumption in favor of public access," because DOJ demonstrated a compelling interest that could be harmed if they were released (security at the Capitol, because the footage could "result in the layout, vulnerabilities, and security weaknesses of the U.S. Capitol being collected, exposed, and passed on to those who might wish to attack the Capitol again"), and because there's no alternative to non-disclosure of the videos that would protect this interest.

The court also ruled that the organization didn't have a right to these videos under the common law.

August 14, 2021 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Friday, August 13, 2021

District Judge Leaves CDC's Eviction Moratorium in Place

Judge Dabney Friedrich (D.D.C.) declined to halt the CDC's eviction moratorium in light of an earlier ruling by the D.C. Circuit. The court said that it's "hands are tied," even though "intervening decisions call into question the D.C. Circuit's conclusion that the CDC is likely to succeed on the merits." The court then invited the plaintiffs to appeal, which they certainly will.

The case, Alabama Association of Realtors v. US DHS, challenges the latest version of the CDC's eviction moratorium. Plaintiffs previously challenged an earlier version (which applied nationwide) on the ground that the CDC lacked statutory authority under the Public Health Act. The court vacated the earlier version last May, but stayed the vacatur pending appeal. The D.C. Circuit declined to vacate stay in June. The Supreme Court also declined to vacate the stay, based at least in part on the CDC's representation that it wouldn't further extend the moratorium. (Four justices would've ruled for the plaintiffs outright; a fifth, Justice Kavanaugh, wrote that the CDC needed statutory authority, but he nevertheless voted to keep the stay in place because it was set to expire in just a couple weeks.)

Then the CDC extended the moratorium, but only as to counties with a substantial or high level of community transmission of COVID.

The plaintiffs then went back to the district court and asked it to "enforce the Supreme Court's ruling." Today the district court declined.

The court said that it was bound by the June D.C. Circuit ruling--the "law of the case"--and that nothing in the Supreme Court's ruling undid the D.C. Circuit's ruling. The court noted that "the Sixth Circuit held that Section 361 of the Public Health Act does not authorize the CDC to impose a nationwide eviction moratorium," and that the Eleventh Circuit "also expressed 'doubts' about the CDC's statutory arguments. But it said that these rulings aren't binding; instead, the D.C. Circuit is.

August 13, 2021 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Court Declines to Halt Nunes's Defamation Claim Against Washington Post

Judge Carl Nichols (D.D.C.) this week denied the Washington Post's motion to dismiss a defamation lawsuit by House Permanent Select Committee on Intelligence Ranking Member Devin Nunes. The ruling means that this portion of Nunes's case can move forward.

The case, Nunes v. WP Company, arose out of Washington Post reporting on Nunes's activities related to former President Trump's claims that President Obama ordered a wiretap of Trump Tower during the 2020 presidential campaign. The Post reported that Nunes "was given access at the White House to intelligence files that Nunes believed would buttress his baseless claims of the Obama administration spying on Trump Tower," and that Nunes saw the documents "reportedly late at night, earning the episode the nickname 'the midnight run.'"

But Nunes said around the time that there was no evidence of wiretaps of Trump Tower, even as he also expressed "concern[] that other surveillance activities were used against President Trump and his associates," and thought it was "very possible" that Trump and others might have been caught up in surveillance directed at others.

Nunes complained to the Post and, that same day, sued. The Post then printed revisions, saying that the timing of Nunes's visit to the White House was "unclear," and that Nunes himself never said that Trump Tower was wiretapped (instead, Trump did). But the revisions didn't take back the "baseless claims" language. Nunes amended his complaint to incorporate the revisions.

The Post moved to dismiss the complaint on the ground that its article was neither false nor defamatory, and that Nunes failed to sufficiently allege that the Post published the article with actual malice, among other reasons.

The court denied the motion. The court wrote that even the Post's revision said that Nunes made "baseless" claims, when he didn't: He only claimed that intelligence activities touched on the Trump campaign (of which there was evidence by November 2020, so this wasn't "baseless"), not that Trump Tower was wiretapped (which wasn't true, but Nunes didn't say it). Moreover, the court said that the Post's false claim could also be defamatory:

Taken as a whole, the article says (or at least a reasonable juror could understand the article to say) that Nunes had made baseless claims about spying on Trump Tower and then visited the White House to inspect documents that might support those baseless claims. And a reasonable juror could conclude that an elected official is ridiculous or unfit for office if he searched for evidence to support baseless claims.

The court ruled that Nunes sufficiently alleged actual malice, or reckless disregard of the truth, because the Post itself had previously reported that Nunes denied Trump's claims about a wiretap at Trump Tower.

The court noted, however, that Nunes now has "to establish by clear and convincing evidence that, even in light of the corrections the Post did issue, it published statements with actual malice."

August 13, 2021 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Thursday, August 12, 2021

Third Circuit Tosses Case Against Pennsylvania COVID Restrictions

The Third Circuit ruled yesterday that a case challenging COVID orders of Pennsylvania's governor and secretary of health was moot. The court then vacated the lower court's ruling in favor of the plaintiffs under Munsingwear.

The case, County of Butler v. Governor of Pennsylvania, challenged the defendants' stay-at-home orders, business closure orders, and orders setting congregation limits in secular settings. The district court ruled that the orders violated the Constitution.

But while the appeal was pending, things changed. An amendment to the state constitution and a concurrent resolution of the General Assembly now limit the governor's authority to issue these orders. And the orders expired by their own terms.

The court ruled that these changes mooted the case, and that no exception to mootness applied. It said that the voluntary cessation exception didn't apply, because the orders expired on their own terms, and not in response to litigation. And it said that the capable-of-repetition-but-evading-review exception didn't apply, because the orders were reviewed (and thus didn't evade review), and because there's no chance this'll happen again (and so isn't capable of repetition).

The court went on to rule that the case became moot because of circumstances outside the defendants' control--that they weren't mooting the case themselves in order to game the courts. As such, the court vacated the district court ruling in favor of the plaintiffs under Munsingwear.

August 12, 2021 in Cases and Case Materials, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis | Permalink | Comments (0)

Court Declines to Enjoin Indiana University's Vaccine Requirement

Justice Amy Coney Barrett today declined to enjoin Indiana University's vaccine requirement, without referring the matter to the entire Court, and without explanation. Justice Barrett issued the order, because she's the justice assigned to the Seventh Circuit, where the case arose. The plaintiffs' application is here.

The case, Klaassen v. Trustees of Indiana University, tested IU's COVID vaccine requirement for students. Eight students argued that the requirement violated due process, but the Seventh Circuit disagreed. In an appropriately curt ruling (given the state of the law), the court simply said that Jacobson v. Massachusetts foreclosed the plaintiffs' argument. (That's the that 1905 case that upheld Massachusetts's smallpox vaccine requirement under a deferential standard.) Indeed, the Seventh Circuit said that this case was easier than Jacobson, because IU's requirement contains religious and medical exceptions (which Massachusetts's requirement did not), and because IU's requirement only applies to the IU community (and not the community at large).

Today's ruling means that IU can impose its vaccine requirement--and that other universities can, too--without violating due process.

August 12, 2021 in Cases and Case Materials, Due Process (Substantive), News | Permalink | Comments (0)

Supreme Court Halts New York's Emergency Eviction Pause for Self-Certified Hardship Sufferers

The Supreme Court today enjoined a New York law that pauses evictions for tenants who self-certify that they're suffering a hardship. The ruling means that some tenants could be evicted sooner than expected, even as the government is in the process of distributing more than $2 billion in aid that could be used to pay back rent. The ruling halts enforcement of the Act pending appeal, now at the Second Circuit. (The lower courts previously denied an injunction pending appeal.)

The case, Chrysafis v. Marks, tests Part A of New York's COVID Emergency Eviction and Foreclosure Prevention Act (CEEFPA). The Act temporarily pauses a landlord's right to pursue an eviction proceeding when a tenant self-certifies that they suffer a financial hardship. Under the Act, a landlord can't challenge a tenant's self-certification; the landlord can only wait out the pause, which expires on August 31 (at which point evictions will proceed as usual). Even so, the Court said that this violates due process: "This scheme violates the Court's longstanding teaching that ordinarily 'no man can be a judge in his own case' consistent with the Due Process Clause." The Court granted an injunction pending appeal--an extraordinary form of relief.

Justice Breyer dissented, joined by Justices Sotomayor and Kagan. Justice Breyer noted that the Act effected only a pause in evictions proceedings (and not a "total deprivation" of a landlord's right to pursue eviction), only for another few weeks, and at a time when the government is distributing emergency relief funds that could be used to pay back rent and avoid eviction. He also noted that the Act doesn't preclude landlords from pursuing back rent and other damages. He argued that the plaintiff-landlords failed to meet the high bar for this kind of extraordinary relief.

August 12, 2021 in Cases and Case Materials, Due Process (Substantive), News, Opinion Analysis | Permalink | Comments (0)

Check it Out: Sullivan on OLC Reform

Check out Prof. Barry Sullivan's (Loyola Chicago) outstanding piece on Office of Legal Counsel reforms, forthcoming in the Notre Dame Journal of Law, Ethics, and Public Policy. Here's the abstract:

First, this Article situates the Office of Legal Counsel (“OLC”) within the context of a political system in which the executive has grown in power far beyond anything that the founders could have foreseen. As the chief legal advisor to the executive branch, OLC performs a critically important function in protecting our constitutional system and ensuring adherence to the rule of law, but OLC makes no final determinations on behalf of the United States and is subject to the supervision of the Attorney General. Second, the Article reviews the recent recommendations of the American Constitution Society concerning possible reforms of OLC. Among other things, those recommendations include a systematic review of existing opinions and greater transparency going forward. This Article generally concurs in those recommendations but also suggests the possibility of additional reforms such as a reduction in the number of political appointees in OLC and a focus on recruiting more experienced lawyers to fill its ranks. Third, and most important, the Article reviews the relevant case law and evaluates the possibility of a more fundamental reform, namely, giving a greater degree of independence to OLC by providing the Assistant Attorney General for OLC with a fixed term coterminous with that of the President. The Article concludes that such a reform is legally possible and worthy of serious consideration, whether as a matter of legislative enactment or administrative regulation.

August 12, 2021 in News, Scholarship | Permalink | Comments (0)

Second Circuit Tosses Suit Challenging Connecticut Magnet School Racial Quota

The Second Circuit ruled yesterday that a nonprofit lacked standing to challenge a Connecticut Department of Education rule that interdistrict magnet schools enroll at least 25 percent non-Black and non-Latinx students. The ruling leaves the rule on the books.

The case, CTPU v. Russell-Tucker, arose when the Commissioner of the Connecticut State Department of Education issued a memo that required all interdistrict magnet schools to enroll at least 25 percent non-Black and non-Latinx students. The Connecticut Parents Union, a non-profit founded "to protect . . . children's educational rights thus ensuring that neither race, zip-code, nor socio-economic status is a predictor of a child's success," sued, arguing that the memo violated equal protection.

The defendants moved to dismiss, arguing that CTPU lacked standing. The court agreed.

The court held that CTPU failed to allege a sufficient harm to its operations. (CTPU did not allege standing on behalf of its members.) The court acknowledged that an organization can establish standing when it "diverts its resources away from its [other] current activities," or otherwise incurs "some perceptible opportunity cost." But it held that CTPU failed to meet that standard here. The court said that CTPU

fail[ed] to identify any restrictions on its ability to perform the core activities--such as meetings, lectures, and general organizing--by which it pursued its mission prior to the [memo]. To the extent CTPU claims that [the memo] triggered an increased demand for parent counseling, CTPU fails to sufficiently plead that any resulting costs were material. Further, even construing the record in CT{U's favor, as we must, it is clear that CTPU incurred costs because it decided to initiate a campaign against [the memo] to advance its own "abstract social interests," thus any costs CPTU incurred from this campaign were not involuntary.

The ruling obviously doesn't prevent another person or organization who has been injured by the memo from suing. But since CTPU's lawsuit, the schools revised the memo to remove any penalties for noncompliance, likely raising other standing challenges for potential plaintiffs.

August 12, 2021 in Cases and Case Materials, Equal Protection, News, Opinion Analysis, Standing | Permalink | Comments (0)

District Court Allows Dominion Defamation Suit to Move Forward

Judge Carl Nichols (D.D.C.) denied the motions of Sidney Powell, Rudolph Guiliani, and Mike Lindell and My Pillow to dismiss Dominion Voting Systems's lawsuits against them for defamation. The ruling is only preliminary; it only means that Dominion sufficiently pleaded defamation to withstand the defendants' motions to dismiss, not that Dominion prevails on the merits. Still, it doesn't bode well for the defendants.

The case grew out of the defendants' many, er, inventive and unsubstantiated claims about Dominion Voting Systems's role in the 2020 presidential election. In particular, all three made public claims--again, many of them, and utterly unsubstantiated--to the effect that Dominion threw the election to President Biden.

Dominion sued, arguing that the defendants defamed the corporation, among other things. The defendants separately filed motions to dismiss, arguing that Dominion's defamation claims failed on their face, also among other things. The cases were designated as "related," and, in a consolidated ruling, the court flatly rejected the defendants' claims.

In particular, the court rejected Powell's argument that her statements couldn't have been defamatory, because they were either "opinions" or "legal theories." The court parsed just a handful of her statements and easily concluded that they were neither opinion nor legal theories.

The court also rejected Powell's and My Pillow's arguments that Dominion failed to allege "actual malice." Again, the court parsed just a few of their outlandish statements (along with the fabricated evidence, and lack of evidence, to support them) and easily concluded that Dominion met this standard in its complaint.

The court rejected Guiliani's arguments in support of his motion to dismiss on different grounds. (Guiliani didn't argue that Dominion failed to sufficiently allege its defamation claim against him.)

August 12, 2021 in Cases and Case Materials, Elections and Voting, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Wednesday, August 11, 2021

District Court Orders Trump Accounting Firm to Turn Over Records to House Oversight Committee

Judge Amit Mehta (D.D.C.) ordered former President Trump's accounting firm, Mazars, LLP, to comply with a House Oversight Committee subpoena and turn over certain financial records of former President Trump and Trump businesses. The ruling follows the Supreme Court's 2020 ruling on an earlier version of the subpoena in Trump v. Mazars.

Judge Mehta's order deals a blow to former President Trump and his long-running efforts to conceal his financial records. But even this latest chapter isn't yet the end: the ruling will certainly be appealed.

The case, still captioned Trump v. Mazars, arose when the House Oversight Committee issued a subpoena to Mazars for certain financial documents of then-President Trump and Trump businesses in 2019. Then-President Trump sued to halt the subpoena. The Supreme Court ruled in 2020 that the subpoena for a sitting president's personal financial records raised "weighty" separation-of-powers concerns, and that the lower courts had to take full account of these concerns in ruling on the subpoena. In particular, the Court identified four non-exhaustive "special considerations" to guide that analysis. The Court sent the case back for further consideration in light of its ruling.

Then the Committee issued a lengthy memo on why it needed the requested information (the "Maloney Memo"), and later, after a new Congress convened, re-issued the subpoena (the "Maloney Subpoena").  The Maloney Subpoena is exactly the same as the original subpoena (the "Cummings Subpoena"), but now has the benefit of the lengthy Maloney Memo, justifying the Maloney Subpoena in detail.

That's all background. Now this most recent ruling.

The court first said that it must assess the Maloney Subpoena (not the earlier Cummings Subpoena), along with the Committee's lengthy justification in the Maloney Memo. The court rejected former President Trump's argument that it could only consider the Cummings Subpoena, without the Maloney Memo. The court explained, "Although the reissued subpoena is identical to the Cummings Subpoena in substance, the House reissuance process required the Committee to serve upon Mazars an entirely separate, fresh subpoena, and the Committee did so. Thus, it is the reissued subpoena that Plaintiffs now challenge, not the expired subpoena issued by Chairman Cummings." The court then rejected former President Trump's claim that the Committee issued the Maloney Subpoena for an invalid purpose.

The court went on to assess the Maloney Subpoena against the Mazars factors, dividing the subpoena into three separate parts, or "tracks." Given that the Maloney Subpoena seeks documents of a former president, not a sitting one, the court acknowledged that the separation-of-powers concerns were substantially diminished. It therefore applied a "Mazars lite" test to each track.

First, the court rejected the Committee's subpoena for documents related to the "financial disclosure track," those documents related to former President Trump's financial disclosures under the Ethics in Government Act that contained "numerous apparent discrepancies." The Committee sought these documents in order to shore up financial disclosure requirements. The court said that the Committee failed to explain why it couldn't get the information from other sources (one of the Mazars factors), not just from former President Trump. The court also said that the Committee's need is outweighed by the burdens of the subpoena (another of the Mazars factors). The court explained, "The more Congress can invade the personal sphere of a former President, the greater the leverage Congress would have on a sitting President."

Next, the court upheld the subpoena in part for documents related to the "GSA track," those documents related to former President Trump's lease agreement with the GSA for the Old Post Office Building. The Committee sought this information in order to conduct oversight and consider tightening requirements related to Emoluments Clauses and conflict-of-interest issues in GSA contracting, among other things. The court said that separation-of-powers concerns all but disappeared, because former President Trump entered into the lease before he became president and retained the lease after he left office, and because he's no longer in office. But it also said that the subpoena wasn't tailored to meet the Committee's legislative interests. So the court upheld the subpoena only as to the financial records of former President Trump, Trump Old Post Office LLC, and the Trump Organization. "The remaining entities are not evidently within the scope of the Committee's GSA track.

Finally, the court upheld the subpoena in part for documents related to the "emoluments track," those documents related to potential Foreign Emoluments Clause violations by former President Trump. The court said that the Committee had authority to seek these documents as part of its oversight and enforcement of the Emoluments Clauses, but only for the years 2017 and 2018.

Stay tuned for the appeal.

August 11, 2021 in Cases and Case Materials, Congressional Authority, Executive Authority, Executive Privilege, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Saturday, July 3, 2021

New Hampshire High Court Strikes State Voter Registration Proof-of-Residency Law

The New Hampshire Supreme Court ruled yesterday that the state's proof-of-residency requirement for voting violated the state constitutional right to vote. The ruling strikes the requirement, SB3, on its face.

The ruling comes just one day after the Supreme Court upheld Arizona's out-of-precinct rule and ballot-collection ban against challenges under Section 2 of the Voting Rights Act. The New Hampshire Court's approach stands in stark contrast to the Supreme Court's approach, in that the New Hampshire Court much more closely scrutinized the state interests behind the voting restrictions (like reducing voting fraud, e.g.)--and concludes that SB3 doesn't serve them. (The plaintiffs in the Arizona case alleged race discrimination in violation of Section 2, whereas the plaintiffs in the New Hampshire case alleged a denial of the right to vote in violation of the state constitution. Still, the difference in approaches is notable, even glaring.)

In this way, the ruling illustrates how state constitutional law could protect against some voting restrictions that the Voting Rights Act (in light of the Supreme Court's ruling) might not.

The case, New Hampshire Democratic Party v. Secretary of State, challenges the state's requirement that voters submit documentation proving their residence (if registering more than 30 days from an election) or select one of two complex and confusing verification options on the voter registration form (if registering less than 30 days from an election). The state adopted the requirements in July 2017; before that, voters simply had to sign an affidavit that they met the identity, citizenship, age, and domicile requirements to vote.

Plaintiffs sued to halt the 2017 requirement, arguing that they violated the state constitutional right to vote. That provision says,

All elections are to be free, and every inhabitant of the state of 18 years of age and upwards shall have an equal right to vote in any election. Every person shall be considered an inhabitant for the purposes of voting in the town, ward, or unincorporated place where he has his domicile.

In particular, the plaintiffs said that "[t]he procedural requirements, associated penalties, and incomprehensibility of SB3 severely and unreasonably burden[] the fundamental right to vote" and that "[t]here is no government interest . . . that justifies requiring New Hampshire voters to endure these burdens."

The court agreed with the plaintiffs. The court applied intermediate scrutiny (the state constitutional standard for voting restrictions that fall between "severe," on the one hand, and "reasonable" and "nondiscriminatory," on the other). It said that the trial court sufficiently found that the requirement unreasonably burdened the plaintiffs (because it's very confusing, and would lead to increased registration times and longer lines at the polls, among other problems), and that the requirements simply did not advance the state's interests in "safeguarding voter confidence, protecting public confidence in the integrity of the State's elections, . . . helping to prevent and protect against voter fraud," and "reducing the administrative cost of post-election investigations." In short, the court deferred to the trial court findings that the state's proof-of-residency requirement simply didn't advance these interests.

 

July 3, 2021 in Cases and Case Materials, Elections and Voting, News, Opinion Analysis, State Constitutional Law | Permalink | Comments (0)

Friday, July 2, 2021

Court Strikes California's Tax-Exempt Disclosure Requirement

The Supreme Court ruled yesterday that California's requirement that tax-exempt organizations operating in the state disclose the names and addresses of their major donors violated the First Amendment.

The ruling strikes California's requirement from the books. It puts similar reporting and disclosure requirements on the chopping block, and it could even lay the groundwork for striking campaign finance disclosure requirements.

The case, Americans for Prosperity Foundation v. Bonta, involved California's requirement that tax-exempt organizations in the state provide to the state attorney general their IRS Form 990, along with Schedule B, which includes the names and addresses of major donors. The state says that it needs the information in order to police misconduct by charities.

Organizations sued, arguing that the requirement violated their First Amendment rights. A sharply divided Court--6-3, along conventional ideological lines--agreed.

The six-justice majority ruled that California's requirement did not sufficiently serve its interest in policing misconduct:

There is a dramatic mismatch, however, between the interest that the Attorney General seeks to promote and the disclosure regime that he has implemented in service of that end. . . .

Given the amount and sensitivity of this information harvested by the State, one would expect Schedule B collection to form an integral part of California's fraud detection efforts. It does not. To the contrary, the record amply supports the District Court's finding that there was not "a single, concrete instance in which pre-investigation collection of a Schedule B did anything to advance the Attorney General's investigative, regulatory or enforcement efforts."

The Court ruled the requirement overbroad and facially unconstitutional, which means that it is unconstitutional not just in this case, but in every conceivable application.

The six-justice majority split on the level of scrutiny to apply to such requirements. Chief Justice Roberts, joined by Justices Kavanaugh and Barrett, argued that "exacting scrutiny" is the right standard for all disclosure requirements, with no least-restrictive-means requirement. Justice Thomas argued that the more stringent strict scrutiny applied. (Justice Thomas also argued that the Court shouldn't rule the requirement facially unconstitutional, just unconstitutional in this case.) Justice Alito, joined by Justice Gorsuch, wrote that he was "not prepared at this time to hold that a single standard applies to all disclosure requirements."

Still, all six agreed that the requirement failed either level of scrutiny in this case, and five (minus Justice Thomas) agreed that it was therefore facially unconstitutional.

Justice Sotomayor wrote the dissent, joined by Justices Breyer and Kagan. Justice Sotomayor argued that the Court wrongly heightened the standard for disclosure requirements, failed to demand that the plaintiffs show a real harm or actual burden, and wrongly held the requirement facially invalid.

In so holding, the Court discards its decades-long requirement that, to establish a cognizable burden on their associational rights, plaintiffs must plead and prove that disclosure will likely expose them to objective harms, such as threats, harassment, or reprisals. It also departs from the traditional, nuanced approach to First Amendment challenges, whereby the degree of means-end tailoring required is commensurate to the actual burdens on associational rights. Finally, it recklessly holds a state regulation facially invalid despite petitioners' failure to show that a substantial proportion of those affected would prefer anonymity, much less that they are objectively burdened by the loss of it.

She noted that "[t]oday's analysis marks reporting and disclosure requirements with a bull's-eye."

July 2, 2021 in Association, Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0)