Tuesday, February 18, 2020
The D.C. Circuit last week ruled that HHS Secretary Azar's approval of Arkansas's proposed work required for Medicaid recipients was arbitrary and capricious in violation of the Administrative Procedure Act. The ruling vacates the Secretary's approval and means that the work requirements can't move forward, at least unless and until the Secretary provides an explanation for authorization that's consistent with the Medicaid Act.
We last posted on this case (and a similar case out of Kentucky) here. (After the district court ruled against Kentucky's approval, that state dropped its program and moved for voluntary dismissal.)
The case arose when Arkansas sought HHS approval for a work-requirement demonstration project for its Medicaid program. The project would mean that Medicaid recipients in the state would have to work, with some exceptions, in order to continue to receive Medicaid.
HHS Secretary Azar approved the project. State residents sued, arguing that the approval was arbitrary and capricious in violation of the APA. The district court agreed, and last week the D.C. Circuit affirmed.
Like the district court, the circuit court said that Secretary Azar's explanation for approving the project didn't square with the purpose of Medicaid, to provide medical assistance. Here's the long and short of it:
Instead of analyzing whether the demonstration would promote the objective of providing coverage, the Secretary identified three alternative objectives: "whether the demonstration as amended was likely to assist in improving health outcomes; whether it would address behavioral and social factor that influence health outcomes; and whether it would incentivize beneficiaries to engage in their own health care and achieve better health outcomes." These three alternative objectives all point to better health outcomes as the objective of Medicaid, but that alternative objective lacks textual support. Indeed, the statute makes no mention of that objective.
While furnishing health care coverage and better health outcomes may be connected goals, the text specifically addresses only coverage. . . . That means that Congress selected to achieve the objectives of Medicaid was to provide health care coverage to populations that otherwise could not afford it.
Monday, February 17, 2020
Here's the letter that's getting so much attention. And here's the gist:
Although there are times when political leadership appropriately weighs in on individual prosecutions, it is unheard of for the Department's top leaders to overrule line prosecutors, who are following established policies, in order to give preferential treatment to a close associate of the President, as Attorney General Barr did in the Stone case. It is even more outrageous for the Attorney General to intervene as he did here--after the President publicly condemned the sentencing recommendation that line prosecutors had already filed in court.
Such behavior is a grave threat to the fair administration of justice.
Tuesday, February 11, 2020
The Department of Justice yesterday filed three separate lawsuits seeking to halt various immigration-related and sanctuary policies in California, New Jersey, and King County, Washington.
The three suits are directed as different policies, as so plead slightly different violations, but they all plead some form of federal supremacy and preemption in immigration policy.
In the California case, DOJ takes on California's ban on the operation of private detention facilities in the state. In short, DOJ says that "California, of course, is free to decide that it will no longer use private detention facilities for its state prisoners and detainees. But it cannot dictate that choice for the Federal Government, especially in a manner that discriminates against the Federal Government and those with whom it contracts." Here's the complaint; here's the motion for a preliminary and permanent injunction.
In the King County case, DOJ seeks to halt a local order that closes the airport for the "deportation of immigration detainees (except for federal government aircraft), to the maximum extent permitted by applicable law." Here's the complaint.
Finally, in the New Jersey case, DOJ takes on a law enforcement directive that limits state and local cooperation with "federal immigration authorities." Here's the complaint.
New York yesterday sued Homeland Security officials for dropping the state from the Customs and Border Patrol's Trusted Traveler program in retribution for the state adopting its Green Light Law. That Law allows unauthorized aliens to get a drivers license in the state, and, in order to facilitate that, prohibits state officials from sharing an applicant's personal information from the DMV database with federal immigration authorities, except where disclosure is pursuant to a lawful court order or judicial warrant.
New York argues in that CBP's move violates the "equal state sovereignty" principle in the Tenth Amendment; that it's unduly coercive in violation of the Tenth Amendment; that it is wholly irrational in violation of due process; and that it violates the Administrative Procedure Act (for lack of notice-and-comment rulemaking, for being arbitrary and capricious, and for violating federal law).
On that last point--violating federal law--New York contends that the move violates the Intelligence Reform and Terrorism Prevention Act of 2004 and implementing regulations. That's because the IRTPA directs the Secretary to "ensure that the international trusted traveler program includes as many participants as practicable," yet CBP's move takes millions of New Yorkers out of the program. Moreover, nothing in the program requires applicants to submit state drivers license information, and CBP can get any information they need to run background checks from other state sources, which New York readily shares with the FBI. In other words: CBP doesn't need information from New York's DMV database.
The complaint asks the court to declare CBP's move unconstitutional and in violation of the APA, and to enjoin enforcement of it.
Friday, February 7, 2020
The D.C. Circuit ruled today that 215 Members of Congress who brought a suit against President Trump for violations of the Foreign Emoluments Clause lacked standing to sue. As a result, the court ordered the case dismissed.
The ruling is a significant victory for President Trump. But it wasn't a ruling on the merits, and other Emoluments Clause cases are still pending against the President in two other circuits.
We last posted on the case here. In short, Members argued that President Trump failed to gain congressional approval and thus violated the Foreign Emoluments Clause for taking money from foreign governments for stays and services at his properties. President Trump moved to dismiss for lack of standing, among other reasons. The district court denied the motion; the D.C. Circuit today reversed.
The ruling was concise. The court simply held that the case was governed by Raines v. Byrd, in which the Supreme Court held that Members of Congress lacked standing to challenge the Line Item Veto Act. Here's how the D.C. Circuit applied Raines:
This case is really no different from Raines. The Members were not singled out--their alleged injury is shared by the 320 members of the Congress who did not join this lawsuit--and their claim is based entirely on the loss of political power. . . .
The Supreme Court's recent summary reading of Raines that "individual members" of the Congress "lack standing to assert the institutional interests of a legislature" in the same way "a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole," Virginia House of Delegates v. Bethune-Hill, puts paid to any doubt regarding the Members' lack of standing.
The plaintiffs can appeal to the full D.C. Circuit and to the Supreme Court.
Check out Adam Entous's and Evan Osnos's piece in The New Yorker, Qassem Suleimani and How Nations Decide to Kill. Here's from the piece:
The President's dismissal of the question of legality [of Suleimani's killing] betrayed a grim truth: a state's decision to kill hinges less on definitive matters of law than on a set of highly maleable political, moral, and visceral considerations. In the case of Suleimani, Trump's order was the culmination of a grand strategic gamble to change the Middle East, and the opening of a potentially harrowing new front in the use of assassination.
Thursday, January 23, 2020
The Court heard oral arguments in Espinoza v. Montana Department of Revenue regarding a state tax credit scheme for student scholarships as violating the First Amendment's religion clauses and the equal protection clause.
Under the original Tax Credit Program, the law provided a taxpayer a dollar-for-dollar tax credit based on the taxpayer’s donation to a Student Scholarship Organization. However, Montana has a constitutional provision, Art. X §6, which prohibits aid to sectarian schools, so the department of revenue added "Rule 1" to the state tax credit scheme excluding from the definition of "qualified education provider" eligible under the scheme "a church, school, academy, seminary, college, university, literary or scientific institution, or any other sectarian institution owned or controlled in whole or in part by any church, religious sect, or denomination." Parents challenged the constitutionality of Rule 1, but when the litigation reached the Montana Supreme Court, it held that the Tax Credit Program was unconstitutional under Art. X §6 and therefore it did not need to reach the issue regarding Rule 1:
Having concluded the Tax Credit Program violates Article X, Section 6, it is not necessary to consider federal precedent interpreting the First Amendment’s less-restrictive Establishment Clause. Conversely, however, an overly-broad analysis of Article X, Section 6, could implicate free exercise concerns. Although there may be a case where an indirect payment constitutes “aid” under Article X, Section 6, but where prohibiting the aid would violate the Free Exercise Clause, this is not one of those cases. We recognize we can only close the “room for play” between the joints of the Establishment and Free Exercise Clauses to a certain extent before our interpretation of one violates the other.
In the oral argument, Justice Ginsberg characterized the option exercised by the Montana Supreme Court as leveling down: "When a differential is challenged, the court inspecting the state law can level up or level down. And here it leveled down." (This "leveling down" approach occurred in Justice Ginsburg's opinion for the Court in Sessions v. Santana-Morales (2017)). And here that leveling down effected questions of standing which troubled Justices Ginsburg, Sotomayor, and Kagan in their early questions to the attorney for the petitioners — the parents and original plaintiffs — who are "three levels removed" from any injury as Sotmayor stated.
The Montana Supreme Court assumed center stage at times, with Justice Alito for example questioning not simply whether the court was wrong but whether it was discriminatory:
isn't the crucial question why the state court did what it did?
If it did what it did for an unconstitutionally discriminatory reason, then there's a problem under Village of Arlington Heights.
So I'll give you an example. The state legislature sets up a scholarship fund, and after a while, people look at the – the recipients of the scholarships, and some people say: Wow, these are mostly going to blacks and we don't like that and that's contrary to state law. So the state supreme court says: Okay,that discrimination is -- we're going to strike down the whole thing.
Is that constitutional?
The attorney for Montana, Adam Unikowsky rejected "the race analogy" stating that "we just don't think that race and religion are identical for all constitutional reasons."
Justice Breyer explained, "what he's saying is that, look, the court took the case in the Prince Edward County thing -- " or "the equivalent and said they couldn't do that. They can't shut down all the schools, even though the Constitution they didn't say had a right and so that's the similarity."
This question of the race-religion analogy persisted, with the motivation behind the Montana state constitutional provision, often known as a Blaine Amendment, being "rooted in -- in grotesque religious bigotry against Catholics," as Justice Kavanaugh phrased it. Justice Kagan seemingly rejected the notion that the court's striking down the entire program must be motivated by animus towards religion:
And I can think of many reasons why you would strike down the whole program that have nothing to do with animus toward religion. You might actually think that funding religion imposes costs and burdens on religious institutions themselves. You might think that taxpayers have conscientious objections to funding religion. You might think that funding religion creates divisiveness and conflict within a society, and that for all those reasons, funding religious activity is not a good idea and that you would rather level down and fund no comparable activity, whether religious or otherwise, than fund both. Now, none of those things have anything to do with animus towards religion . . . .
Yet soon after, Chief Justice Roberts returned to the race analogy. Later, Justice Breyer would ask:
can we--can you or could I say this: Yes, race is different from religion. Why? There is no Establishment Clause in regard to race.
The specific doctrinal arguments revolve around the extension of Trinity Lutheran Church of Columbia, Mo. v. Comer, decided in 2017, involving Missouri's state constitutional Blaine Amendment and the denial of funds to a church school playground. And more deeply, the "play in the joints" notion from Locke v. Davey — which was itself divisive in Trinity Lutheran — is implicated. At stake is the possibility that Free Exercise Clause will now overwhelm any anti-Establishment concerns.
January 23, 2020 in Courts and Judging, Equal Protection, Establishment Clause, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Oral Argument Analysis, Race, Religion | Permalink | Comments (0)
Tuesday, January 21, 2020
The Office of Legal Counsel opined this weekend that House committees investigating articles of impeachment last fall against President Trump lacked legal authority to issue subpoenas to administration officials.
The opinion, dated January 19, appears to attempt to provide legal bases to President Trump's defenders in the Senate, who argue that the administration's categorical decision to ignore those subpoenas did not constitute obstruction of Congress (but instead was based on legal reasons why the subpoenas themselves were invalid).
The OLC memo is not the law, however; it's merely an opinion. Still, it gives President Trump's defenders legal arguments why his non-cooperation did not constitute obstruction.
(OLC's reasoning is quite formalistic--characteristic of this administration when arguing over congressional authority to investigate anything. For a different take--one that recognizes that there's not always a bright line between Congress's powers of oversight and its power of impeachment--check out this analysis by the Congressional Research Service.)
In short, OLC reasoned this way:
(1) Speaker Pelosi announced on September 24, 2019, that "the House of Representatives is moving forward with an official impeachment inquiry;"
(2) that announcement did not legally authorize an actual impeachment inquiry, because the full House didn't vote to authorize such an inquiry;
(3) House committees nevertheless issued subpoenas after September 24 under their impeachment-investigation authority and their general investigative and oversight authority;
(4) those subpoenas could not have been issued validly under the committees' impeachment authority, because, as in (2), there was no legally authorized impeachment inquiry;
(5) when the House came around to authorize an impeachment inquiry, it didn't ratify the earlier-issued subpoenas, so they are still invalid; and
(6) the committees lacked authority to issue the subpoenas under their general investigative and oversight authorities.
The Supreme Court issued a one-sentence order today denying a motion by Obamacare defenders to expedite review of the Fifth Circuit's ruling last month holding the individual mandate unconstitutional.
Recall that the Fifth Circuit ruled the individual mandate unconstitutional (because Congress zeroed out the penalty), but remanded the case to determine whether the mandate is severable from the rest of the Act--and therefore whether any other portions of the Act can stand. The district court previously ruled that the mandate was not severable, and that the entire Act must fall.
The Court's order means that the Court won't rule on the case until after the 2020 presidential election, if at all.
Monday, January 20, 2020
The Ninth Circuit ruled on Friday that a media plaintiff had a First Amendment right to access nonconfidential civil complaints, and that one court policy violated that right, where another court policy didn't. The ruling sets a test and clarifies the law in the Ninth Circuit.
The case, Courthouse News Service v. Planet, arose when CNS challenged the process of releasing nonconfidential complaints to the press in Ventura County Superior Court. That process, dubbed "no access before process," meant that the court put newly filed civil complaints through a seven-step administrative process before releasing them to the media. That could take a couple days, so CNS sued, seeking immediate access. (Venture County doesn't use electronic filing; it's all paper.)
As the case worked its way through the federal courts, Ventura County changed its practice to a "scanning policy." Under the scanning policy, the court scanned complaints and made them available the same day (in most cases) on court computers. CNS still wanted immediate access, however, so the case moved on.
The Ninth Circuit said that CNS has a qualified First Amendment right of access to newly filed, nonconfidential civil complaints, and that the "no access before process" violated it, while the "scanning policy" didn't. The Ninth Circuit held that courts could adopt reasonable restrictions on access resembling time, place, and manner regulations. These could result in incidental delays in access, so long as they are content-neutral, narrowly tailored and necessary to serve the court's important interest in the fair and orderly administration of justice. Or: "Ventura County must demonstrate first that there is a 'substantial probability' that its interest in the fair and orderly administration of justice would be impaired by immediate access, and second, that no reasonable alternatives exist to 'adequately protect' that government interest."
As to the "no access before process" policy, the court said that it resulted in significant delays, but didn't serve (and in fact were entirely unrelated to) the stated interests in privacy and confidentiality, complying with accounting protocols, controlling quality and accuracy, promoting efficient court administration, or promoting the integrity of court records. It also said that the policy "caused far greater delays than were necessary to protect [these interests]."
As to the scanning policy, the court said that it directly related to the court's asserted interests and that, after the court changed its filing hours, the policy resulted in "near perfect" same-day access to the complaints. (Before the court changed its filing hours, there wasn't near perfect same-day access, but the Ninth Circuit gave the court a pass, because it faced resource constraints.)
The ruling leaves the current scanning policy in place.
Judge Smith concurred in part, arguing that the majority wrongly applied strict scrutiny, and instead should have applied "reasonable time, place and manner restrictions."
Thursday, January 16, 2020
In its Report issued today, the United States Government Accountability Office found that the Executive wrongfully withheld funds Congress appropriated to Ukraine.
The Report begins:
Office of Management and Budget—Withholding of Ukraine Security Assistance
B-331564 January 16, 2020
In the summer of 2019, the Office of Management and Budget (OMB) withheld from obligation funds appropriated to the Department of Defense (DOD) for security assistance to Ukraine. In order to withhold the funds, OMB issued a series of nine apportionment schedules with footnotes that made all unobligated balances unavailable for obligation.
Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law. OMB withheld funds for a policy reason, which is not permitted under the Impoundment Control Act (ICA). The withholding was not a programmatic delay. Therefore, we conclude that OMB violated the ICA.
The Report explains the constitutional and statutory frameworks, including the ICA, thusly:
The Constitution specifically vests Congress with the power of the purse, providing that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7. The Constitution also vests all legislative powers in Congress and sets forth the procedures of bicameralism and presentment, through which the President may accept or veto a bill passed by both Houses of Congress, and Congress may subsequently override a presidential veto. Id., art. I, § 7, cl. 2, 3. The President is not vested with the power to ignore or amend any such duly enacted law. See Clinton v. City of New York, 524 U.S. 417, 438 (1998) (the Constitution does not authorize the President “to enact, to amend, or to repeal statutes”). Instead, he must “faithfully execute” the law as Congress enacts it. U.S. Const., art. II, § 3.
An appropriations act is a law like any other; therefore, unless Congress has enacted a law providing otherwise, the President must take care to ensure that appropriations are prudently obligated during their period of availability. See B-329092, Dec. 12, 2017 (the ICA operates on the premise that the President is required to obligate funds appropriated by Congress, unless otherwise authorized to withhold). In fact, Congress was concerned about the failure to prudently obligate according to its Congressional prerogatives when it enacted and later amended the ICA. See generally, H.R. Rep. No. 100-313, at 66–67 (1987); see also S. Rep. No. 93-688, at 75 (1974) (explaining that the objective was to assure that “the practice of reserving funds does not become a vehicle for furthering Administration policies and priorities at the expense of those decided by Congress”).
The Constitution grants the President no unilateral authority to withhold funds from obligation. See B-135564, July 26, 1973. Instead, Congress has vested the President with strictly circumscribed authority to impound, or withhold, budget authority only in limited circumstances as expressly provided in the ICA. See 2 U.S.C. §§ 681–688. The ICA separates impoundments into two exclusive categories—deferrals and rescissions. The President may temporarily withhold funds from obligation—but not beyond the end of the fiscal year in which the President transmits the special message—by proposing a “deferral.”4 2 U.S.C.§ 684. The President may also seek the permanent cancellation of funds for fiscal policy or other reasons, including the termination of programs for which Congress has provided budget authority, by proposing a “rescission.”5 2 U.S.C. § 683.
In either case, the ICA requires that the President transmit a special message to Congress that includes the amount of budget authority proposed for deferral or rescission and the reason for the proposal. 2 U.S.C. §§ 683–684. These special messages must provide detailed and specific reasoning to justify the withholding, as set out in the ICA. See 2 U.S.C. §§ 683–684; B-237297.4, Feb. 20, 1990 (vague or general assertions are insufficient to justify the withholding of budget authority).
The burden to justify a withholding of budget authority rests with the executive branch.
The Report found that the Executive did not meet that burden.
Obviously, this Report will not end the matter. The security funds to Ukraine are at the core of the impeachment of the President by the House of Representatives; the Articles of Impeachment are being delivered to the Senate for trial. Moreover, the Report itself ends by discussing the problem of the Executive's lack of cooperation:
OMB and State have failed, as of yet, to provide the information we need to fulfill our duties under the ICA regarding potential impoundments of FMF funds. We will continue to pursue this matter and will provide our decision to the Congress after we have received the necessary information.
We consider a reluctance to provide a fulsome response to have constitutional significance. GAO’s role under the ICA—to provide information and legal analysis to Congress as it performs oversight of executive activity—is essential to ensuring respect for and allegiance to Congress’ constitutional power of the purse. All federal officials and employees take an oath to uphold and protect the Constitution and its core tenets, including the congressional power of the purse. We trust that State and OMB will provide the information needed.
Wednesday, January 15, 2020
Judge Peter J. Messitte (D. Md.) entered a preliminary injunction against enforcement of President Trump's executive order that effectively authorized state and local governments to veto federal resettlement of refugees. The ruling, while preliminary, deals a sharp blow to President Trump's effort to empower state and local governments to restrict refugee resettlement. At the same time, it's a significant victory for refugees and the refugee-rights community.
President Trump's EO provides that the federal government "should resettle refugees only in those jurisdictions in which both the State and local governments have consented to receive refugees under the Department of State's Reception and Placement Program." The EO effectively allowed state and local governments to veto resettlement.
The court ruled that this likely violated 8 U.S.C. Sec. 1522, which sets out the "conditions and considerations" for refugee resettlement and assistance programs:
[The statute] speaks in terms of "consulting" and "consultation" between and among the Resettlement Agencies and the State and Local Governments; establishes that the Resettlement Agencies and State and Local Governments must regularly "meet" to "plan and coordinate"; even acknowledges that "maximum consideration" be given to "recommendations" States make to the Federal Government. The challenged Order definitely appears to undermine this arrangement. As to States or Local Governments that refuse to give written consents, there will be no consultation, no meetings with the Resettlement Agencies, not just "recommendations." Those State and Local Governments can simply give or withhold their written consents to the resettlement of refugees within their borders.
The court also held that the EO "appears to run counter to the Refugee Act's stated purpose" and the congressional intent. (A report on the bill from the House Judiciary Committee couldn't have been clearer: "The Committee emphasizes that these requirements [of the act] are not intended to give States and localities any veto power over refugee placement decisions, but rather to ensure their input into the process and to improve their resettlement planning capacity.")
The court also held that individual government officials' enforcement of the EO was likely arbitrary and capricious, and thus invalid, under the Administrative Procedure Act.
The ruling preliminarily prohibits enforcement of the EO. But it also telegraphs the court's conclusion on the merits: the EO is unlawful.
Friday, January 10, 2020
The United States Supreme Court granted certiorari in Barr v. Political Consultants involving a First Amendment challenge to a provision of the Telephone Consumer Protection Act of 1991 (the “TCPA”), 47 U.S.C. § 227(b)(1)(A).
The federal law prohibits calls to cell phones by use of an automated dialing system or an artificial or prerecorded voice, subject to three statutory exemptions including one added in 2015 for automated calls that relate to the collection of debts owed to or guaranteed by the federal government.
The challengers, political consultants and similar entities, argued that this exemption violated the First Amendment as a content regulation that could not survive strict scrutiny and further that the exemption could not be severed from the TCPA.
The district judge held that the TCPA exemption was content-based but satisfied strict scrutiny review. The Fourth Circuit's opinion agreed that the exemption was content-based, applying the rubric from Reed v. Town of Gilbert (2015). Like the district judge, the panel rejected the government's contention that it was not content-based but only relationship-based. The panel stated:
Instead, the exemption regulates on the basis of the content of the phone call. Under the debt-collection exemption, the relationship between the federal government and the debtor is only relevant to the subject matter of the call. In other words, the debt-collection exemption applies to a phone call made to the debtor because the call is about the debt, not because of any relationship between the federal government and the debtor.
a private debt collector could make two nearly identical automated calls to the same cell phone using prohibited technology, with the sole distinction being that the first call relates to a loan guaranteed by the federal government, while the second call concerns a commercial loan with no government guarantee.
Unlike the district judge, the Fourth Circuit concluded that the exemption failed strict scrutiny:
It is fatally underinclusive for two related reasons. First, by authorizing many of the intrusive calls that the automated call ban was enacted to prohibit, the debt-collection exemption subverts the privacy protections underlying the ban. Second, the impact of the exemption deviates from the purpose of the automated call ban and, as such, it is an outlier among the other statutory exemptions.
However, the Fourth Circuit agreed with the government that the exemption was severable, citing NFIB v. Sebelius (2012), and reasoning that severing the debt-collection exemption will not undermine the automated call ban. given that for twenty-four years, from 1991 until 2015, until the exemption was added, the automated call ban was “fully operative.”
The United States Supreme Court has now added this case to its 2019-2020 Term.
Thursday, January 9, 2020
In a six page letter, the New York City Bar Association urged Congress to "commence formal inquiries into a pattern of conduct by Attorney General William P. Barr that threatens public confidence in the fair and impartial administration of justice."
The bar association letter discusses four specific instances of public comments that were inconsistent with the duties of the Attorney General
to act impartially, to avoid even the appearance of partiality and impropriety, and to avoid manifesting bias, prejudice, or partisanship in the exercise of official responsibilities are bedrock obligations for government lawyers. In the context of pending investigations, government lawyers also are obliged to be circumspect in their public statements and to avoid prejudging the outcomes of those investigations.
The letter also remarks that the specific "comments follow and are reminiscent of Mr. Barr’s earlier mischaracterizations of the Mueller Report, prior to his release of a redacted version of it, in which Mr. Barr claimed the special counsel had found insufficient evidence of any obstruction of justice by President Trump—a material mischaracterization of the Mueller Report and a proposition rejected by more than 1,000 former federal prosecutors based on the facts set forth in the Mueller Report."
In brief, the four instances are:
- On October 11, 2019, in an invitation-only speech at the University of Notre Dame, Mr. Barr launched a partisan attack against “so called ‘progressives’” for supposedly waging a “campaign to destroy the traditional moral order.”
- On November 15, 2019, in a speech at the Federalist Society’s National Lawyers Convention, Mr. Barr again vilified “progressives” and “the Left” (characterizing as “the other side” those who “oppose this President”) in highly partisan terms.
- On December 3, 2019, drawing from earlier remarks, Mr. Barr warned at a DOJ awards ceremony that “the American people have to . . . start showing, more than they do, the respect and support that law enforcement deserves,” and “if communities don’t give that support and respect, they might find themselves without the police protection they need.”
- On December 10, 2019, in a television interview soon after DOJ’s Inspector General released a report finding no improper political motivation in the FBI’s commencement of a counterintelligence investigation into alleged ties between the Trump-Pence campaign and Russian officials in 2016, Mr. Barr publicly rejected the Inspector General’s findings, asserting instead that a separate ongoing investigation into the FBI’s actions that he personally had directed would likely reach a different conclusion.
The letter asks for Congressional oversight of Attorney General Barr because, in short,
In a troubling number of instances, Mr. Barr has spoken and acted in a manner communicating an impression that he views himself as serving as the Attorney General not for the entire nation, but more narrowly for certain segments of society—whether defined in terms of religion, ideology (his own “side,” to borrow the language of Mr. Barr’s Federalist Society speech) or party affiliation.
Wednesday, January 8, 2020
The Eleventh Circuit ruled in National Association of the Deaf v. Florida that Congress validly abrogated state sovereign immunity in enacting the Americans with Disabilities Act, insofar as it requires the state to provide captioning for live and archived videos of Florida legislative proceedings. The ruling means that the plaintiffs' case can move forward on the merits.
The case arose when plaintiffs challenged the Florida legislature's practice of live-streaming and archiving videos of legislative sessions without captioning. The plaintiffs argued that this violated Title II of the ADA and the Rehab Act (more on that below). The state moved to dismiss, arguing that it was immune under the Eleventh Amendment and that Congress did not validly abrogate immunity in enacting the ADA.
The Eleventh Circuit disagreed. The court ruled that Congress, in enacting the ADA, sought to protect the fundamental right to participate in the democratic process, and that the state denied that very right to the plaintiffs:
Here, deaf citizens are being denied the opportunity to monitor the legislative actions of their representatives because Defendants have refused to provide captioning for legislative proceedings. Without access to information about the legislative actions of their representatives, deaf citizens cannot adequately "petition the Government for a redress of greivances," because they cannot get the information necessary to hold their elected officials accountable for legislative acts. This type of participation in the political process goes to the very core of the political system embodied in our Constitution.
The court went on to say that Congress also validly abrogated immunity even if only a non-fundamental right were at stake.
The court said that Congress enacted Title II against a backdrop of a "pattern of unequal treatment in the administration of a wide range of public services, programs, and activities," and that Title II was an "appropriate response" to this pattern:
The burden of adding captioning to legislative videos--which are already provided to the public--removes a complete barrier to this information for a subset of citizens with a remedy we expect can be accomplished with limited cost and effort. In this way, the remedy is a proportionate and "reasonable modification" of a service that is already provided, and it does not change the "nature" of the service whatsoever. Finally, if the cost or effort should prove to be prohibitively burdensome, the Defendants have available the affirmative defenses in Title II.
The court also held that the plaintiffs could pursue injunctive relief under Ex Parte Young for the ongoing violation of Title II. Finally, it remanded for further proceedings on whether state legislative defendants received federal financial funds, and were therefore on the hook for Rehab Act violations (as a federal conditioned spending program--federal funds in exchange for a state's agreement not to discriminate by disability).
Thursday, January 2, 2020
In their article, Reconstituting the Future: The Equality Amendment, well-known feminist theorists Catharine A. MacKinnon & Kimberlé W. Crenshaw have argued that equality needs to be re-envisioned in an intersectional and progressive manner requiring constitutional amendment. In the Yale Journal Law Forum they contend their proposal
centers on rectifying the founding acts and omissions of race and sex, separately and together, and incorporates similar but distinct inequalities. It is informed by prior efforts to integrate equality into the constitutional landscape that have been decimated by political reversals and doctrinal backlash. It aggregates the insights, aspirations, and critiques of many thinkers and actors who have seized this moment to breathe new life into the nation’s reckoning with inequality. It neither looks back to celebrate amendments whose transformative possibilities have been defeated nor participates in contemporary hand-wringing over equality’s jurisprudential limitations. It seeks to make equality real and to matter now. We argue that a new equality paradigm is necessary and present one form it could take.
The article elaborates on the rationales for each section. The entire proposed amendment reads:
The Equality Amendment
Whereas all women, and men of color, were historically excluded as equals, intentionally and functionally, from the Constitution of the United States, subordinating these groups structurally and systemically; and
Whereas prior constitutional amendments have allowed extreme inequalities of race and/or sex and/or like grounds of subordination to continue with-out effective legal remedy, and have even been used to entrench such inequalities; and
Whereas this country aspires to be a democracy of, by, and for all of its people, and to treat all people of the world in accordance with human rights principles;
Therefore be it enacted that—
Section 1. Women in all their diversity shall have equal rights in the United States and every place subject to its jurisdiction.
Section 2. Equality of rights shall not be denied or abridged by the United States or by any State on account of sex (including pregnancy, gender, sexual orientation, or gender identity), and/or race (including ethnicity, national origin, or color), and/or like grounds of subordination (such as disability or faith). No law or its interpretation shall give force to common law disadvantages that exist on the ground(s) enumerated in this Amendment.
Section 3. To fully realize the rights guaranteed under this Amendment, Congress and the several States shall take legislative and other measures to prevent or redress any disadvantage suffered by individuals or groups because of past and/or present inequality as prohibited by this Amendment, and shall take all steps requisite and effective to abolish prior laws, policies, or constitutional provisions that impede equal political representation.
Section 4. Nothing in Section 2 shall invalidate a law, program, or activity that is protected or required under Section 1 or 3.
This just-published relatively brief (22 pages) essay would make a terrific addition to any Constitutional Law syllabus, as well as any course in Feminist Legal Theory or Gender and Law.
pictured: Professors Crenshaw (left) & MacKinnon (right)
January 2, 2020 in Comparative Constitutionalism, Courts and Judging, Equal Protection, Fourteenth Amendment, Gender, Interpretation, Privacy, Race, Recent Cases, Scholarship | Permalink | Comments (0)
Wednesday, January 1, 2020
For his 2019 Year-End Report on the Federal Judiciary, Chief Justice Roberts chose to include in his brief introductory remarks some words about democracy:
It is sadly ironic that John Jay’s efforts to educate his fellow citizens about the Framers’ plan of government fell victim to a rock thrown by a rioter motivated by a rumor. Happily, Hamilton, Madison, and Jay ultimately succeeded in convincing the public of the virtues of the principles embodied in the Constitution. Those principles leave no place for mob violence. But in the ensuing years, we have come to take democracy for granted, and civic education has fallen by the wayside. In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to understand our government, and the protections it provides, is ever more vital. The judiciary has an important role to play in civic education, and I am pleased to report that the judges and staff of our federal courts are taking up the challenge.
[emphasis added]. The emphasized bolded language, seeming to blame the population of the United States for taking democracy for granted and social media for spreading rumors did not sit well with some commentators who argued that Roberts should consider his own contributions to undermining democracy: Shelby County (regarding voting rights); Rucho (decided in June of this year holding partisan gerrymandering is a political question not suitable for the federal courts); McCutcheon (finding campaign finance regulations unconstitutional). For others, Roberts's language regarding civic education is welcome and demonstrates his recognition of the divides in the nation.
Noticeably absent from Roberts's remarks was any reference to the impeachment trial which looms in the Senate over which he will preside. Also absent was any update on the sexual misconduct claims against members of the judiciary which he mentioned in last year's report.
Judge Richard Leon (D.D.C.) this week tossed former Deputy National Security Advisor and Acting National Security Advisor Charles Kupperman's lawsuit asking the court to determine which prevailed: a congressional subpoena, or the White House's instruction not to testify under an absolute privilege theory.
The ruling ends the case. It also means that we don't get another district court say-so on the White House theory of absolute privilege for senior presidential advisors. That means that we now have (1) a district court ruling from late November rejecting absolute privilege with respect to former White House Counsel Don McGahn's compelled testimony and (2) a 2008 district court ruling rejecting absolute privilege with respect to White House Counsel Harriet Mier's compelled testimony. No circuit court has yet to weigh in. We also have a series of Office of Legal Counsel memos, starting with the 1971 memo through the most recent McGahn memo. The district courts have flatly rejected the reasoning in these memos.
Just a wee little bit of background (more on our earlier posted, link above): Kupperman, a former White House official, received a subpoena to testify in the impeachment inquiry from the House Permanent Select Committee on Intelligence; but the White House instructed him not to testify, claiming an absolute privilege against compelled congressional testimony. Kupperman sued, asking the court to resolve his dilemma. But the House moved forward with impeachment without his testimony, and the Committee argued that his case was moot.
Judge Leon agreed. The court said that there's no longer a case or controversy over the matter, that the matter isn't "capable or repetition but evading review" (because the House has said unequivocally that it won't re-issue a subpoena, ever), and that there's no chance of enforcement against Kupperman.
Tuesday, December 31, 2019
In her opinion in North Carolina State Conference of the NAACP v. Cooper, Judge Loretta Biggs of the Middle District of North Carolina issued a preliminary injunction against North Carolina’s voter ID-requirements, known as S.B. 824.
Judge Biggs found that plaintiffs’ claim that SB 824 violated the Fourteenth Amendment’s Equal Protection Clause had a likelihood of success. Although the voter-ID law was facially neutral, Judge Biggs found that it enacted a racial classification. As she explained, in Village of Arlington Heights v. Metro. Housing Dev. Corp. (1977),
the Supreme Court set forth a non-exhaustive list of factors to guide this delicate investigation. Reviewing courts should consider: (1) the law’s historical background; (2) the specific sequence of events leading up to the law’s enactment, including any departures from normal legislative procedure; (3) the law’s legislative and administrative history; and (4) whether the law’s effect “bears more heavily on one race than another.” The Court further cautioned that, because legislative bodies are “[r]arely . . . motivated solely by a single concern,” a challenger need only demonstrate that “invidious discriminatory purpose was a motivating factor.” (emphasis added). “[T]he ultimate question,” then, is whether a law was enacted “because of,” and not “in spite of,” the discriminatory effect it would likely produce.
Applying the Arlington Heights factors, Judge Biggs found that the “historical background” of the law “weighs in favor of a finding of discriminatory intent with respect to S.B. 824’s enactment”: “North Carolina has a sordid history of racial discrimination and voter suppression stretching back to the time of slavery, through the era of Jim Crow, and, crucially, continuing up to the present day.”
On the “sequence of events,” Judge Biggs found the record “mixed.” While the “parliamentary requirements” were met, when “viewed with a wider lens, the circumstances surrounding S.B. 824 are unusual.” A majority of the Republican legislators who supported a previous bill on voter-ID declared unconstitutional by the Fourth Circuit “also voted for S.B. 824, and the same legislative leaders spearheaded both bills. "Further,she found it noteworthy that "those legislators were elected, at least in part, by way of district maps which were declared unconstitutional." Additionally, "after voters ratified the voter-ID amendment, S.B. 824 was enacted along (virtually) strict party lines and over the Governor’s veto.”
As to the legislative history, including statements, Judge Biggs considered the statements of legislators after the previous bill was declared unconstitutional as well as changes proposed or adopted, and “the decision not to include public-assistance IDs as an acceptable form of identification,” despite the Fourth Circuit’s criticism.
Finally, Judge Biggs concluded that there was (or was likely to be) a racially disparate impact. Examining the specific provisions of the bill, including what types of identification were accepted and which were not:
the important metric for the Court’s purposes isn’t so much the variety of IDs as how readily they are possessed by North Carolinians of different backgrounds. In this sense, what is most striking about the state’s newly expanded list of IDs is that it continues to primarily include IDs which minority voters disproportionately lack, and leaves out those which minority voters are more likely to have.
One example was federal government identification, which was excluded. For Judge Biggs, these disparate types of identification mean not only that “minority voters will bear this effect more severely than their white counterparts,” but also that “a disproportionate number of African American and Hispanic” North Carolina citizens “could be deterred from voting or registering to vote because they lack, or believe they lack, acceptable identification and remain confused by or uninformed about S.B. 824’s exceptions.”
Thus, Judge Biggs found that the law was racially motivated. She further found that it was not supported by any of the proffered government interests.
Given that the Governor had vetoed this bill and the Fourth Circuit's decision holding a previous similar law unconstitutional, the prospects for an appeal will certainly be closely monitored.