Monday, June 29, 2020
An article in the New York Times exploring the inner workings of the Washington Post has more than insider media news: it begins by divulging the role of the Washington Post editors in not publishing news about Supreme Court nominee Bret Kavanaugh during his contentious confirmation hearing.
Almost anyone who works in the Washington Post newsroom can look inside its publishing system, Methode, to see what stories are coming. And at the height of the furor over Brett Kavanaugh’s nomination to the Supreme Court in 2018, some who did saw a shocking article awaiting publication.
In the article, Bob Woodward, the Post legend who protected the identity of his Watergate source, Deep Throat, for 30 years, was going to unmask one of his own confidential sources. He was, in particular, going to disclose that Judge Kavanaugh had been an anonymous source in his 1999 book “Shadow: Five Presidents and the Legacy of Watergate.”
Mr. Woodward was planning to expose Mr. Kavanaugh because the judge had publicly denied — in a huffy letter in 1999 to The Post — an account about Kenneth Starr’s investigation of President Bill Clinton that he had himself, confidentially, provided to Mr. Woodward for his book. (Mr. Kavanaugh served as a lawyer on Mr. Starr’s team.)
The article, described by two Post journalists who read it, would have been explosive, arriving as the nominee battled a decades-old sexual assault allegation and was fighting to prove his integrity.
The article was nearly ready when the executive editor, Martin Baron, stepped in. Mr. Baron urged Mr. Woodward not to breach his arrangement with Mr. Kavanaugh and to protect his old source’s anonymity, three Post employees said. (The three, as well as other Post journalists who spoke to me, insisted on anonymity because The Post prefers that its employees not talk to the media.)
Mr. Baron and other editors persuaded Mr. Woodward that it would be bad for The Post and “bad for Bob” to disclose a source, one of the journalists told me. The piece never ran.
How this is coming to light now is left unexplained.
In its opinion in Agency for International Development v. Alliance for Open Society International — or what will be called USAID v. Alliance for Open Society II — the Court's majority rejected the applicability of the First Amendment to foreign affiliates of the United States organizations who had previously prevailed in their First Amendment challenge.
Recall that AOSI I, the Court in 2013 held that the anti-prostitution pledge required of organizations seeking federal funding under the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, violated the First Amendment. Writing for the Court, Chief Justice Roberts opined that the provision was an unconstitutional condition ("the relevant distinction that has emerged from our cases is between conditions that define the limits of the government spending program—those that specify the activities Congress wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the contours of the program itself").
Yet questions arose whether this holding extended to not only to the plaintiffs but to their "foreign affiliates." A district court and a divided Second Circuit found that foreign affiliates were included.
A divided United States Supreme Court, in an opinion written by the Court's newest Justice, held that foreign organizations have no First Amendment rights. Kavanaugh, joined by Chief Justice Roberts, Thomas, Alito, and Gorsuch, wrote that
two bedrock principles of American constitutional law and American corporate law together lead to a simple conclusion: As foreign organizations operating abroad, plaintiffs’ foreign affiliates possess no rights under the First Amendment.
Thomas authored a brief concurring opinion restating his view that AOSI I was incorrectly decided.
Justice Breyer wrote a dissenting opinion which was joined by Ginsburg and Sotomayor (note that Kagan had recused herself), arguing that the Court's opinion misapprehended the issue:
The Court, in my view, asks the wrong question and gives the wrong answer. This case is not about the First Amendment rights of foreign organizations. It is about—and has always been about—the First Amendment rights of American organizations. . . .
the question is whether the American organizations enjoy that same constitutional protection against government-compelled distortion when they speak through clearly identified affiliates that have been incorporated overseas. The answer to that question, as I see it, is yes.
In its highly anticipated opinion in June Medical Services v. Russo (formerly Gee), the United States Supreme Court reversed the Fifth Circuit's controversial decision upholding Louisiana's abortion restrictions despite their similarity to the ones held unconstitutional in the Court's most recent abortion case, Whole Woman's Health v. Hellerstedt (2016).
Justice Breyer, who also wrote the Court's opinion in Whole Woman's Health, wrote the plurality opinion in June Medical, joined by Ginsburg, Sotomayor and Kagan (None of the women Justices wrote separately, meaning that the abortion opinions in today's case are all by men).
Breyer's plurality opinion concluded that there is standing; recall that the United States argued that the physicians should not have standing to raise the constitutional rights of their patients despite this long standing practice. Breyer's plurality opinion carefully rehearses the findings of fact by the district court (which applied Whole Women's Health) and ultimately concluded that the "evidence on which the District Court relied in this case is even stronger and more detailed" than in Whole Woman's Health. The Fifth Circuit, Breyer's plurality opinion concluded, misapplied the correct standard of review of these findings: the appellate court should have applied the deferential clear-error standard.
Chief Justice Roberts, who dissented in Whole Woman's Health, concurred in June Medical on the basis of stare decisis:
I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case . . . .
The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.
The Chief Justice's sixteen page concurring opinion, necessary to constitute the majority reversing the Fifth Circuit and upholding Whole Woman's Health is bound to be highly analyzed.
The dissenting opinions are somewhat fragmented. Thomas's dissenting opinion and Alito's dissenting opinion, joined by Gorsuch, and in part by Thomas and Kavanaugh, tracks ground familiar from Whole Woman's Health, with additional discussions of stare decisis. Gorsuch, who was not on the Court when Whole Woman's Health was decided in 2016, penned an opinion accusing the Court of having "lost" its way in a "highly politicized and contentious arena" by not paying due deference to the state legislature. Kavanaugh, who replaced Kennedy who had joined the majority in Whole Woman's Health, not only joined portions of Alito's dissent but wrote separately to stress his agreement with the portions of Alito's opinion that the case should be remanded, and in a footnote also stated that "the District Court on remand should also address the State’s new argument (raised for the first time in this Court) that these doctors and clinics lack third-party standing."
Friday, June 26, 2020
In a pair of rulings today, here and here, the Ninth Circuit held that President Trump exceeded his authority under federal law and violated the Appropriations Clause in reprogramming funds to build portions of a border wall between the U.S. and Mexico.
The rulings are a sharp set-back to President Trump's efforts to make good on his promise to build the wall.
Today's rulings come after the case has already been to the Supreme Court. Recall that the Court earlier granted the Administration's motion for a stay of the district court's earlier injunction, affirmed by the Ninth Circuit. The Court's stay meant that the injunction would not remain in place as the case moved forward on the merits. So the case moved forward on the merits, sans injunction. But then the district court ruled in favor of the plaintiffs and granted a new injunction. That's why we got today's rulings.
(There's some weirdness here. The Supreme Court granted the stay, stating, "Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with Section 8005." Despite this language, the court today ruled that the plaintiffs in both cases did have causes of action.)
The rulings say that President Trump exceeded his authority under the 2019 Defense Department Appropriations Act and violated the Appropriations Clause, and affirmed a permanent injunction.
The court held that in order to reprogram under Sections 8005 and 9002 of the 2019 Defense Department Appropriations Act, (1) there must be for an unforeseen military requirement and (2) Congress must not have previously denied funding. The court said that President Trump's reprogramming violated both requirements.
As to the first, the court said that the border wall was no "unforeseen military requirement." Among other things, the court noted that President Trump had long advocated for the wall, suggesting that it couldn't have been "unforeseen."
As to the second, the court noted that Congress had previously denied the Administration's request for full funding.
Judge Collins dissented in both cases. Judge Collins argued that the plaintiffs didn't have a cause of action (see the weirdness parenthetical, above), and that even if they did they'd lose on the merits.
Wednesday, June 24, 2020
A sharply divided three-judge panel of the D.C. Circuit today ordered Judge Emmet Sullivan to dismiss the criminal case against Michael Flynn for lying to the FBI. This is hardly the final word, though: the extraordinary ruling is sure to go to the full circuit, and perhaps even the Supreme Court.
Flynn was charged with lying to the FBI as part of the FBI's investigation into connections between the Trump campaign and Russia in the 2016 election. He pleaded guilty--twice, before two different federal judges--and agreed to cooperate with the government in its ongoing investigation. The court deferred sentencing to allow Flynn to continue to cooperate.
Flynn then moved to withdraw his plea, arguing that the government failed to produce exculpatory evidence. Most recently, DOJ came across material that, according to the government, means that the prosecution can no longer prove the charge. So the government moved to dismiss the case.
Judge Sullivan appointed an amicus to represent the no-dismissal side, invited other amici to weigh in, and set a hearing date on the motions--all to determine whether he should grant "leave of court" to dismiss. (That's the standard under a Rule 48(a) motion to dismiss a criminal charge.) (Judge Sullivan had serious concerns about the government's motion, given the many, many irregularities in the case.)
Then Flynn filed a writ of mandamus in the D.C. Circuit, and the government weighed in to support it. Note that Judge Sullivan had not yet even held the hearing on the motion to dismiss, much less denied it.
(Just gotta say it: Wow. Not your usual federal prosecution.)
Today the D.C. Circuit ruled for Flynn and ordered the prosecution dismissed. Judge Rao wrote the majority opinion, which concluded that Judge Sullivan committed clear legal error. Moreover, by ordering dismissal without a hearing or further consideration by the lower court, the court said that the district court had no role under the Rule 48(a) "with-leave-of-court" standard.
Judge Rao started by noting that a prosecution's motion to dismiss is entitled to a presumption of regularity. But the court wrote that Judge Sullivan raised nothing to challenge this presumption, or to show that this was the kind of case that warranted a hearing or further judicial inquiry into the motion. As such, the court concluded that Judge Sullivan went beyond his authority in appointing an amicus and scheduling a hearing. Again: All this before Judge Sullivan even held the hearing, much less ruled against dismissal.
Judge Rao explained in separation-of-powers terms:
In this case, the district court's actions will result in specific harms to the exercise of the Executive Branch's exclusive prosecutorial power. The contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority. Thus, the district court's appointment of the amicus and demonstrated intent to scrutinize the reasoning and motives of the Department of Justice constitute irreparable harms that cannot be remedied on appeal.
Judge Rao seemed to try to leave open some room for a district court to determine whether to grant "leave of court" on a Rule 48(a) motion to dismiss. But if this case doesn't fit the bill (again, with all its irregularities), it's not clear what would.
Judge Wilkins dissented. In short:
This appears to be the first time that we have issued a writ of mandamus to compel a district court to rule in a particular manner on a motion without first giving the lower court a reasonable opportunity to issue its own ruling; the first time any court has held that a district court must grant "leave of court" pursuant to Federal Rule of Criminal Procedure 48(a) without even holding a hearing on the merits of the motion; and the first time we have issued the writ even though the petitioner has an adequate alternative remedy [that is, appeal after a denial of the motion to dismiss], on the theory that another party [the government] would not have had an adequate alternative remedy if it had filed a petition as well. Any one of these is sufficient reason to exercise our discretion to deny the petition; together they compel its rejection.
Thursday, June 18, 2020
In its opinion in Department of Homeland Security v. Regents of the University of California (consolidated with Trump v. NAACP, and McAleenan v. Vidal), the Court held that the Trump Administration's rescission of the DACA program forestalling deportation proceedings against undocumented persons who have resided in the United States since childhood was arbitrary and capricious under the Administrative Procedure Act (APA). To reach that conclusion, the Court first found that the rescission decision was reviewable.
As we noted in our discussion of the oral argument (which occurred more than six months ago), the focus on the APA is not surprising although there were constitutional issues. And as foreshadowed in the oral argument, the question of whether the Trump Administration memos adequately considered the issue of reliance on the DACA policy was central to the Court's opinion.
The opinion by Chief Justice Roberts was joined by Justices Ginsburg, Breyer, and Kagan in full, and joined by Justice Sotomayor except to Part IV regarding the Equal Protection claim (applicable to the federal government through the Fifth Amendment). On the Equal Protection claim, Roberts, writing for a plurality, reasoned:
To plead animus, a plaintiff must raise a plausible inference that an “invidious discriminatory purpose was a motivating factor” in the relevant decision. Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266 (1977). Possible evidence includes disparate impact on a particular group, “[d]epartures from the normal procedural sequence,” and “contemporary statements by members of the decisionmaking body.” Tracking these factors, respondents allege that animus is evidenced by (1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission; and (3) pre- and post-election statements by President Trump. Brief for New York 54–55.
None of these points, either singly or in concert, establishes a plausible equal protection claim. First, because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program.Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds.
Second, there is nothing irregular about the history leading up to the September 2017 rescission. . . .
Finally, the cited statements are unilluminating. The relevant actors were most directly Acting Secretary Duke and the Attorney General.. . .Instead, respondents contend that President Trump made critical statements about Latinos that evince discriminatory intent. But, even as interpreted by respondents, these statements—remote in time and made in unrelated contexts— do not qualify as “contemporary statements” probative of the decision at issue.
[some citations omitted].
Justice Sotomayor disagreed. In her concurring opinion she stressed that the equal protection challenges were still in a "preliminary posture," so that all that was necessary at this stage of the litigation was a statement of sufficient facts that would allow a court to draw the reasonable inference that there is liability for the misconduct alleged. For Sotomayor, this threshold was met and her opinion criticizes the plurality for "discounting some allegations altogether and by narrowly viewing the rest." Instead, Sotomayor argues that Trump's statements matter, as she did in her dissenting opinion in Trump v. Hawai'i (2018) (the "travel ban" case). Further, she contends that the
the impact of the policy decision must be viewed in the context of the President’s public statements on and off the campaign trail. At the motion-to-dismiss stage, I would not so readily dismiss the allegation that an executive decision disproportionately harms the same racial group that the President branded as less desirable mere months earlier.
Finally, the plurality finds nothing untoward in the “specific sequence of events leading up to the challenged decision.” Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 267 (1977). I disagree. As late as June 2017, DHS insisted it remained committed to DACA, even while rescinding a related program, the Deferred Action for Parents of Americans and Lawful Permanent Residents. But a mere three months later, DHS terminated DACA without, as the plurality acknowledges, considering important aspects of the termination. The abrupt change in position plausibly suggests that something other than questions about the legality of DACA motivated the rescission decision. Accordingly, it raises the possibility of a “significant mismatch between the decision . . . made and the rationale . . . provided.” Department of Commerce v. New York, 588 U. S. ___, ___ (2019) (slip op., at 26). Only by bypassing context does the plurality conclude otherwise.
The otherwise dissenting opinions concurred with the plurality on rejection of the equal protection claims.
Thus, with the nonconstitutional grounds for judgment, it is possible that the Trump Administration could attempt to rescind DACA by complying with the administrative requirements of the APA and not acting in an arbitrary and capricious manner. Whether or not the Trump Administration proceeds in that direction is uncertain.
Monday, June 15, 2020
In its opinion in the consolidated cases of Bostock v. Clayton County, the United States Supreme Court interpreted the prohibition of discrimination "because of sex" in Title VII of the 1964 Civil Rights Act, 42 U.S.C. §2000e et. seq. to include sexual and transgender identities. As we discussed in our preview, two of the consolidated cases involved sexual orientation discrimination - Altitude Express v. Zarda and Bostock v. Clayton County Board of Commissioners - while the third - R.G. & G.R. Harris Funeral Homes v. EEOC - involved gender identity.
The Court's opinion, authored by Justice Gorsuch and joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Sotomayor, and Kagan, states:
At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms—and that “should be the end of the analysis.”
After considering and rejecting the employers' arguments, the opinion concludes:
Some of those who supported adding language to Title VII to ban sex discrimination may have hoped it would derail the entire Civil Rights Act. Yet, contrary to those intentions, the bill became law. Since then, Title VII’s effects have unfolded with far-reaching consequences, some likely beyond what many in Congress or elsewhere expected.
But none of this helps decide today’s cases. Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.
The judgments of the Second and Sixth Circuits in Nos. 17–1623 and 18–107 are affirmed. The judgment of the Eleventh Circuit in No. 17–1618 is reversed, and the case is remanded for further proceedings consistent with this opinion.
The Court's opinion is 33 pages or so and there are no concurring opinions. Justice Alito's dissent, joined by Justice Thomas, weighs in at over 100 pages including its appendices. There is another dissenting opinion by Justice Kavanaugh, at a more modest 27 pages.
It is the dissenting opinions that provide the constitutional law perspective to the Court's statutory interpretation decision: both claim that the Court is violating separation of powers. Justice Alito begins his lengthy dissent by stating:
There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.
And the Court's most recently appointed Justice, Kavanaugh, begins in a similar vein:
Like many cases in this Court, this case boils down to one fundamental question: Who decides?
Kavanaugh concludes that it should not be the Court's decision, but does expound on why the Court's interpretation regarding "sex" is incorrect.
Congress could, of course, amend Title VII to exclude LGBTQ identities. But the momentum in Congress has tilted in the direction of inclusion, a step which would now be redundant.
As for the connections between Title VII and the Equal Protection Clause and the definitions of "sex" and protection for LGBTQ individuals, these arise in the dissenting opinions. Alito's dissent worries that the Title VII interpretation will "exert a gravitational pull in constitutional cases," so that LGBTQ identities will be afforded the heightened scrutiny standard applicable to sex/gender. For his part, Kavanaugh's dissent stresses that in the Court's discussions of sexual orientation in equal protection doctrine, the Court did not consider sexual orientation part of sex discrimination.
Additionally, all of the opinions raise the First Amendment free exercise of religion specter. The Court's majority states that "worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage," but that issue is for another day:
So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.
For Alito dissenting, his views are similar to his views in the same-sex marriage cases. He states here that the " position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unalloyed victory for individual liberty."
Tuesday, June 2, 2020
A unanimous Supreme Court yesterday ruled in Financial Oversight and Management Board for Puerto Rico v. Auerelius Investment, LLC, that the President's appointment of members to the Financial Oversight Board, without Senate advice and consent, didn't violate (or even implicate) the Appointments Clause.
The ruling is a win for the Board and its authority to carry Puerto Rico through bankruptcy.
The Court said first that the Appointments Clause applies to all officers of the United States, including officers who operate within territories. But it went on to say that Board members in this case aren't officers of the United States, and the Appointments Clause therefore doesn't restrict their appointment.
The Court looked functionally to the Board's powers and duties and concluded that they're local, not national. The Court said that Board members therefore aren't officers of the United States covered by the Appointments Clause.
Justice Thomas concurred. He argued that the Court should have looked to the original public meaning of the Appointments Clause, not the "ill-defined path" that it took, and come out with the same result.
Justice Sotomayor concurred, too. She argued that given Puerto Rico's history--and, in particular, the compact between Puerto Rico and the federal government that established home rule for the island--it wasn't clear that Congress could create the Board at all. But nevertheless concurred, because the parties hadn't raised that issue:
These cases raise serious questions about when, if ever, the Federal Government may constitutionally exercise authority to establish territorial officers in a Territory like Puerto Rico, where Congress seemingly ceded that authority long ago to Puerto Rico itself. . . .
The Board members, tasked with determining the financial fate of a self-governing Territory, exist in a twilight zone of accountability, neither selected by Puerto Rico itself nor subject to the strictures of the Appointments Clause. I am skeptical that the Constitution countenances this freewheeling exercise of control over a population that the Federal Government has explicitly agreed to recognize as operating under a government of their own choosing, pursuant to a constitution of their own choosing. . . . Nevertheless, because these issues are not properly presented in these cases, I reluctantly concur in the judgment.
Monday, June 1, 2020
A sharply divided Supreme Court ruled today in Thole v. U.S. Bank that retirement-plan participants can't sue their former employer for mismanagement of the plan, because they hadn't demonstrated sufficient direct and concrete harm.
The ruling deals a sharp blow to defined-benefit plan participants who seek to sue for plan mismanagement. Under the ruling, those participants have to wait until their actual benefits drop, or close to it. And even so, the Court's ruling may give employers an out. At the same time, the ruling shields employers from liability unless and until their mismanagement is so bad that it actually or imminently results in lowered benefits.
While the plaintiffs sued under the individual cause of action in ERISA, the Court's ruling is based on Article III standing. This means that Congress can't change the law to create more permissive standing.
The case arose when two retirees of U.S. Bank sued that Bank and others for mismanaging their retirement-plan assets. The plaintiffs sued under ERISA's individual cause of action.
The Court ruled that the plaintiffs lacked Article III standing because, in short, they didn't suffer a harm. Justice Kavanaugh wrote for the five conservatives that the plaintiffs' monthly defined benefits didn't drop, or wouldn't imminently drop, based on the mismanagement, and any court ruling wouldn't affect their monthly benefits under the plan.
The Court also noted that the plaintiffs' benefits wouldn't drop even if the retirement plan failed, because the Pension Benefit Guarantee Corporation backstops failed retirement plans. This raises the question whether the plaintiffs would have standing even if the plan's failing led to a reduction in the benefits that the plan pays out (because the plaintiffs, after all, would theoretically continue to receive the full measure of their defined-benefit plan, even if from the PBGC, and not the plan).
The ruling means that the plaintiffs have to wait to sue until the plan's failure actually or imminently results in a reduction in their own benefits. And even then, the Court might've written in an out for the employer by noting that the PBGC backstops failing plans.
Justice Sotomayor, joined by the three other progressives, dissented. She argued that the plaintiffs have an interest in their plan's integrity, just as private trust beneficiaries have an interest in protecting their trust; that breach of a fiduciary duty is a cognizable injury, even if it doesn't result in financial harm or increased risk of nonpayment; and that the plaintiffs have associational standing to sue on behalf of the plan.
It is hard to overstate the harmful consequences of the Court's conclusion. . . . After today's decision, about 35 million people with defined-benefits plans will be vulnerable to fiduciary misconduct. The Court's reasoning allows fiduciaries to misuse pension funds so long as the employer has a strong enough balance sheet during (or, as alleged here, because of) the misbehavior. Indeed, the Court holds that the Constitution forbids retirees to remedy or prevent fiduciary breaches in federal court until their retirement plan or employer is on the brink of financial ruin. This is a remarkable result, and not only because this case is bookended by two financial crises.
Saturday, May 30, 2020
A closely divided Court in South Bay United Pentacostal Church v. Newsom denied the application for emergency injunction relief sought by the church from California Governor Newsom's Executive Order placing numerical restrictions on all gatherings to combat the spread of the highly infectious corona virus causing COVID-19. The Ninth Circuit panel and the district judge had similarly denied the church's motion for a preliminary injunction.
There is no opinion from the Court. Chief Justice Roberts, who joined the majority in rejecting the emergency application, filed a brief concurring opinion. On the merits, Chief Justice Roberts wrote:
Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.
The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985).
That is especially true where, as here, a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground. The notion that it is “indisputably clear” that the Government’s limitations are unconstitutional seems quite improbable.
In short, religious gatherings were not being treated any differently under the California Order and the judiciary should defer to the politically accountable entities in health situations, especially when these are uncertain and changing.
Justice Bret Kavanaugh wrote a dissenting opinion, joined by Justices Thomas and Gorsuch — but interestingly not Justice Alito — concluding that the California Order did not treat the religious institutions the same as "comparable secular businesses" such as grocery stores. Kavanaugh argues that given this differential treatment, struct scrutiny should apply, and California has not advanced a sufficiently compelling reason to treat religious gatherings differently.
As the pandemic continues, there is certainly sure to be more litigation, but for a majority of the Court, gatherings including those that are religious can be limited in service to public health.
May 30, 2020 in Cases and Case Materials, Courts and Judging, First Amendment, Free Exercise Clause, Medical Decisions, Opinion Analysis, Religion, Science, Supreme Court (US) | Permalink | Comments (0)
Tuesday, May 26, 2020
Florida District Judge Issues Injunction on Florida Statute Requiring Payment of Fines and Fees for Re-enfranchisement
The 125 page opinion in Jones v. DeSantis by United States District Judge Robert Hinkle results in an detailed permanent injunction outlining how Florida must comply with the constitutional and statutory requirements required to implement its statute requiring the payment of fees and fines before persons convicted of felonies be re-enfranchised.
Recall that Florida law disenfranchising persons convicted of felonies, held unconstitutional in 2018, was changed by a voter referendum to amend the Florida Constitution. Amendment 4. Amendment 4 changed the Florida Constitution to provide:
any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.
Fla. Const. Art. VI §4. After the amendment was passed, the Florida legislature passed SB7066, codified as Fla. Stat. §98.071 (5) which defined "completion of all terms of sentence" to include "full payment of any restitution ordered by the court, as well as "Full payment of fines or fees ordered by the court as a part of the sentence or that are ordered by the court as a condition of any form of supervision, including, but not limited to, probation, community control, or parole."
Recall Judge Hinkle previously issued a preliminary injunction regarding indigent persons, finding that the statute as to the named plaintiffs violated equal protection.
Recall also that the Eleventh Circuit upheld the preliminary injunction, finding that to the "extent a felon can pay" the legal financial obligations (LFOs), they must, but clearly affirmed the district court's order enjoining the state "from preventing the plaintiffs from voting based solely on their genuine inability to pay legal financial obligations."
Now, Judge Hinkle has heard evidence in the five consolidated cases and issued a detailed injunction.
As to the equal protection claim of persons who are "genuinely unable to pay their LFOs," Judge Hinkle found the Eleventh Circuit decision upholding the preliminary injunction was determinative. But the determination of "genuinely unable to pay" had its own constitutional issues:
The State has shown a staggering inability to administer the pay-to- vote system and, in an effort to reduce the administrative difficulties, has largely abandoned the only legitimate rationale for the pay-to-vote system’s existence.
The state, it seemed, could not determine the original obligation for individuals, and it could not determine the amount that individuals had paid - - - changing its accounting from an "actual-balance method" to a "every-dollar method." The opinion does an admirable job of explaining the methods and providing examples - - - and it seems clear that it is incoherent. Further, the department of elections charged with administering the system did not have a system or the resources it.
On equal protection on the basis of race or gender, Judge Hinkle rejected both claims "on balance," but did provide serious consideration.
On the Twenty-fourth Amendment, the court stated that while the Florida statute was not a poll tax, the fees imposed on defendants as payment to run the criminal justice system were "any other tax" within the Amendment.
On procedural due process, the problems with the state system and the "request an advisory opinion" method provided to individuals to determine the amounts due merited analysis, as well as a large portion of the mandated injunction (below).
While the States may certainly chose to appeal, Florida would not seem to have a very good chance returning to the Eleventh Circuit.
Tuesday, May 19, 2020
The Sixth Circuit has granted en banc review requested by a member of the court (rather than the parties) in Gary B. v. Whitmer. The panel's "previous decision and judgment of this court are vacated, the mandates are stayed, and these cases are restored to the docket as pending appeals."
This is not unanticipated. Recall that a divided panel 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. Our extensive analysis of the panel opinion is here.
Friday, May 15, 2020
The Sixth Circuit ruled earlier this week that Kentucky Governor Beshear's business shut-down order likely violates the Free Exercise Clause as applied to religious services. The ruling prevents the government from enforcing the shut-down order against religious services while the case moves forward. At the same time, however, the ruling tells the Governor how to regulate religious services consistent with free exercise (simply impose social distancing requirements, e.g.).
The court recognized that religiously-neutral, generally-applicable laws are usually upheld (under rational basis review). But it said that the shut-down order wasn't generally applicable, as demonstrated by the many "life-sustaining" "exceptions" to shut-down:
Do the four pages of exceptions in the orders, and the kinds of group activities allowed, remove them from the safe harbor for generally applicable laws? We think so. As a rule of thumb, the more exceptions to a prohibition, the less likely it will count as a generally applicable, non-discriminatory law. "At some point, an exception-ridden policy takes on the appearance and reality of a system of individualized exemptions, the antithesis of a neutral and generally applicable policy and just the kind of state action that must run the gauntlet of strict scrutiny. . . .
The exception for "life-sustaining" businesses allows law firms, laundromats, liquor stores, gun shops, airlines, mining operations, funeral homes, and landscaping businesses to continue to operate so long as they follow social-distancing and other health-related precautions. But the orders do not permit soul-sustaining group services of faith organizations, even if the groups adhere to all the public health guidelines required of the other services.
The court went on to say that the Governor's order would likely fail strict scrutiny, because it wasn't narrowly tailored. "There are plenty of less restrictive ways to address these public-health issues," for example, "insist[ing] that the congregants adhere to social-distancing and other health requirements and leave it at that--just as the Governor has done for comparable secular activities[.]"
Thursday, May 14, 2020
A sharply divided Wisconsin Supreme Court struck the isolation order issued by the state Department of Health Services Secretary-Designee, effective immediately. The 4-3 ruling said that the order didn't go through administrative rule-making process and exceeded DHS's statutory authority.
The ruling says nothing about Governor Evers's emergency order. And nothing in the ruling restricts the state DHS from going back to the drawing board to tailor an administrative rule or order to the court's ruling.
The majority opinion focuses almost exclusively on administrative law and statutory authority.
But don't stop there: the lengthy concurring and dissenting opinions, and their back-and-forth on the separation of powers, are well worth a look--if only for the dramatically different ways that the Justices apply these principles.
The Fourth Circuit, sitting en banc, denied President Trump's interlocutory appeal of the district court's failure to rule on his motion to dismiss in the Emoluments Clause case brought by Maryland and D.C.
The ruling is a victory for Maryland and D.C., in that it keeps the case going. But it says nothing on the merits, or on the several other barriers that the plaintiffs may face in bringing this suit. It merely sends the case back to the district court for a ruling on President Trump's motion and other proceedings.
After Maryland and D.C. sued President Trump for Emoluments Clause violations, the President moved to dismiss, arguing that he enjoyed absolute immunity. The district court didn't rule on the motion for seven months, so President Trump filed an interlocutory appeal with the Fourth Circuit, arguing that the district court effectively denied his motion.
A three-judge panel agreed and held that Maryland and D.C. lacked standing. (We posted on the Fourth Circuit's standing ruling here.) The court vacated that ruling and granted en banc review.
Today's ruling says that the Fourth Circuit didn't have jurisdiction to hear the case.
The court said that
the district court neither expressly nor implicitly refused to rule on immunity. It did not make any rulings with respect to the President in his individual capacity. To the contrary, the district court stated in writing that it intended to rule on the President's individual capacity motion. Despite the President's suggestion, the district court's deferral did not result in a delay 'beyond all reasonable limits.'
The dissent disagreed, and wrote that "[t]he district court's treatment of the President's invocation of absolute immunity is best characterized as deliberately dilatory and, more probably, manipulative."
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.