Wednesday, October 10, 2018
The Supreme Court yesterday declined to intervene in a case challenging North Dakota's voter-ID law. The move allows the law to go into effect for the upcoming elections.
The action (or lack of it) is significant, because of the nature of the law. As Pema Levy explains at Mother Jones, the ND law requires ND voters to show proof of a residential address in order to cast a ballot. But it says that PO boxes don't count. That matters, because Native American voters in ND often lack street address, and instead use PO boxes, because the U.S. Postal Service doesn't provide residential delivery in rural Native American communities.
The legislature enacted the law after the state elected Heidi Heitkamp to the Senate by a very slim margin, and with the strong backing of Native American voters. Heitkamp is the only statewide elected Democrat in the state.
Justice Ginsburg, joined by Justice Kagan, dissented. She wrote that not intervening in the case and vacating an Eighth Circuit stay risks voter confusion (because the law was halted by a lower court for the primaries), and that "the risk of disfranchisement is large."
Tuesday, October 9, 2018
The Seventh Circuit last week upheld Wisconsin's butter-grading system against Dormant Commerce Clause, due process, and equal protection challenges. The ruling means that Wisconsin's butter-grading system stays on the books.
The case, Minerva Dairy v. Harsdorf, took on Wisconsin's law for grading butter, which makes it unlawful "to sell . . . any butter at retail unless it has been graded." To satisfy this requirement, butter may be graded either by a Wisconsin-licensed grader, or by the USDA voluntary butter-grading program. The plaintiff, an Ohio butter producer, argued that the law violated the Dormant Commerce Clause, due process, and equal protection.
The Seventh Circuit disagreed. The court ruled that the law didn't discriminate against interstate commerce, and so didn't violate the Dormant Commerce Clause. (The court didn't even apply Pike v. Bruce Church balancing, because the law didn't discriminate on its face or in effect.) The court also said that Wisconsin's butter-grading-licensing standards, which require a person to come to Wisconsin to test to be a Wisconsin-certified butter-grader, didn't discriminate, either (even though a would-be butter-grader who lives in or close to Wisconsin can get there easier than a would-be grader who lives farther away).
The court rejected the due process and equal protection challenges, too, because the law satisfied rational basis review.
Thursday, October 4, 2018
In his opinion in Ramos v. Nielsen, United States District Judge Edward Chen of the Northern District of California enjoined the federal government's termination of TPS — Temporary Protected Status — designations for Haiti, Sudan, Nicaragua, and El Salvador.
As we previously discussed related to the NAACP complaint filed in January in Maryland and related only to Haiti, one argument is that the termination is a violation of equal protection, springing from an intent to discriminate on the basis of race and/or ethnicity.
Judge Chen's opinion finds that the preliminary injunction is warranted based on a likelihood of prevailing on the merits of an Administrative Procedure Act claim, but also on the merits of the equal protection claim. Judge Chen applied the factors from Village of Arlington Heights v. Metro. Hous. Development Corp., 429 U.S. 252 (1977), and concluded that there was sufficient evidence to
raise serious questions as to whether a discriminatory purpose was a motivating factor in the decisions to terminate the TPS designations. In particular, Plaintiffs have provided evidence indicating that (1) the DHS Acting Secretary or Secretary was influenced by President Trump and/or the White House in her TPS decision-making and (2) President Trump has expressed animus against non-white, non-European immigrants.
there were departures from the normal procedural sequence during the TPS decision-making process; that is, instead of considering all current country conditions as had been done in previous administrations, the DHS political appointees in the current administration made TPS decisions turn on whether the originating condition or conditions directly related thereto continued to exist, disregarding all other current conditions no matter how bad. Moreover, at the apparent behest of then-DHS Secretary Kelly, there was an effort to gather negative information about Haitian TPS beneficiaries prior to the decision on Haiti’s TP designation – in particular, whether Haitian TPS beneficiaries had been convicted of crimes or were on public or private relief. See Degen Decl., Ex. 84 (email). There is no indication that these factors had previously been considered by DHS in making TPS decisions; indeed, the email indicated that the request for the information should be kept quiet. See Degen Decl., Ex. 84 (email) (“Please keep the prep for this briefing limited to those on this email. If you need a specific data set and need to ask someone to pull it, please do not indicate what it is for. I don’t want this to turn into a big thing were people start prodding and things start leaking out.”). The information sought by the Secretary coincides with racial stereotypes – i.e., that non-whites commit crimes and are on the public dole.
This is yet another judicial finding that the administration has acted with racial animus and the administration is sure to appeal it.
[image: Kirstjen Nielsen, current Secretary of Department of Homeland Security]
Wednesday, October 3, 2018
The Supreme Court heard oral arguments yesterday in Gundy v. United States, the case testing whether the federal Sex Offender Registration and Notification Act delegated too much authority to the Attorney General to determine the Act's application to pre-Act offenders. Our preview is here.
If the arguments any any predictor, the Non-Delegation Doctrine challenge to the Act faces an uphill battle. Indeed, there was only one Justice, Justice Gorsuch, who seriously went to bat against the Act. And his problems with the Act sounded more in due process (void-for-vagueness), and not in the separation of powers or non-delegation.
The question for the Court was whether SORNA's delegation to the AG to determine the applicability of the Act to pre-Act offenders provided an "intelligible principle" to guide the AG's decision. If so, there's no delegation problem; if not, there's a violation of the Non-Delegation Doctrine. (That Doctrine seeks to preserve the separation of powers by preventing Congress from delegating too much law-making authority to the Executive Branch.)
The Court's approach will likely turn on two considerations. First, can the Court look to the Act in its entirety in determining whether Congress legislated with an "intelligible principle," or is it restricted to the particular provision that delegates authority to the AG to determine its application to pre-Act offenders? (Related: Should the Court seek to interpret the Act to avoid a delegation problem?) Court precedent and most of the Justice who spoke seemed to favor the former approach; only Justice Gorsuch spoke out forcefully in favor of the latter approach (and, again, his objections really sounded in due process, not the separation of powers). Next, does the Non-Delegation Doctrine apply differently to legislation that provides more serious enforcement than to legislation that provides less serious enforcement? In particular, is the Doctrine more rigorous when the delegation goes to the AG (as chief federal prosecutor of federal crimes, as opposed to an ordinary regulatory agency), because a vague delegation would put both the power to interpret the law and the power to prosecute the criminal law in the hands of one executive officer? Again, precedent and questions seemed to say no, and, again, only Justice Gorsuch seriously pushed back.
As far as the separation of powers goes, it's worth noting that if the Court rules that SORNA violates the Non-Delegation Doctrine, this is a net gain for the judicial branch: it means that the courts can play a more aggressive role than they have played in determining the authority of executive agencies in interpreting and executing the law. To that extent, we might consider this case alongside other challenges to the administrative state (challenges to the Chevron doctrine, challenges to Morrison v. Olson and independent agencies, etc.).
It's certainly possible that the Court might do some refining around the edges of the Non-Delegation Doctrine. (Maybe that's why the Court granted cert. Otherwise, the grant seems a mystery.) But it seems quite unlikely that the Court will hold the SORNA's delegation to the AG unconstitutional.
Tuesday, October 2, 2018
Check out Laurence Tribe's piece in the NYT, All the Ways a Justice Kavanaugh Would Have to Recuse Himself. Tribe argues that given Judge Kavanaugh's "intemperate personal attacks on members of the Senate Judiciary Committee, his partisan tirades" last week, and "his stated animosities and observation that 'what goes around comes around,'" he'd have to recuse himself from a whole lot of cases:
Judge Kavanaugh's attacks on identifiable groups--Democrats, liberals, "outside left-wing opposition groups" and those angry "about President Trump and the 2016 election" or seeking "revenge on behalf of the Clintons"--render it inconceivable that he would "administer justice without respect to persons," as a Supreme Court justice must swear to do, when groups like Planned Parenthood, the NRDC Action Fund, the NAACP Legal Defense Fund, NARAL Pro-Choice America or the American Civil Liberties Union appear as parties or file briefs on behalf of plaintiffs and defendants.
Monday, October 1, 2018
The Supreme Court will hear oral arguments tomorrow in Gundy v. United States, the case testing whether Congress violated the separation of powers by delegating too much authority to the Attorney General to determine whether the Sex Offender and Registration and Notification Act applies to pre-Act offenders. Here's my preview for the ABA Preview of United States Supreme Court Cases (with permission):
The Sex Offender Registration and Notification Act
In 2006, Congress enacted SORNA to “establish a comprehensive national system for the registration” of sex offenders. Before SORNA, every state had its own registration system, and the federal government required states to adopt certain unifying measures or lose certain federal funds. SORNA strengthened these baselines, but it also did more.
In particular, SORNA created—and required states to create, as a condition of receiving certain federal funds—criminal penalties for individuals who fail to comply with its registration requirements. SORNA created a federal three-tier system for classifying sex offenders based on the significance of their offense, and made it a federal crime to fail to register for a specified number of years (depending on the tier of the crime). (This was different than the classification system that many states previously used, which set requirements based on individualized risk assessments of the offenders.) The Act states that a person who (1) “is required to register under” SORNA; (2) “travels in interstate or foreign commerce”; and (3) “knowingly fails to register or update a registration as required by” SORNA is guilty of a federal crime punishable to up to ten years in prison. 18 U.S.C. § 2250(a). It also requires states (again, as a condition of receiving certain federal funds) to “provide a criminal penalty that includes a maximum term that is greater than 1 year for the failure of a sex offender to comply with” SORNA’s registration requirements.
But Congress didn’t specify whether these new criminal provisions would apply to pre-Act offenders. (The question was important: legislators estimated that there were more than 500,000 pre-Act offenders when Congress passed the law.) Instead, Congress left it to the Attorney General. SORNA says: “The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter . . . and to prescribe rules for the registration of any such sex offenders . . . .” 34 U.S.C. § 20913(d).
This gives the Attorney General quite a bit of discretion. It allows the Attorney General to apply SORNA to pre-Act offenders immediately, or later, or not at all. It also allows the Attorney General to make a decision at one time, but to change course later, or under any new President, with regard to whether and how SORNA’s registration requirements would apply to pre-Act offenders.
In fact, the Attorney General exercised this discretion, at least to some extent. Attorney General Alberto G. Gonzales issued an interim rule about six months after Congress passed SORNA stating that SORNA would apply to pre-Act offenders. Since then, different Attorneys General issued different guidelines as to how it would apply, particularly with regard to offenders who had been released from prison for longer than SORNA’s maximum registration periods (for example, a person who was released more than 25 years before Congress enacted SORNA, but who would be subject to a maximum 25-year registration period under SORNA). As relevant to this case, Attorney General Eric Holder issued guidance in 2010 that SORNA credit pre-Act offenders with their entire prior period in the community, regardless of what a local jurisdiction might decide.
In 2005, Herman Avery Gundy pled guilty in Maryland to sexual assault of a minor. He was sentenced to 20 years in prison, with ten years suspended and five years of probation.
In November 2010, Gundy completed his state sentence and was transferred to the custody of the Federal Bureau of Prisons to serve a related federal sentence. The Bureau of Prisons transferred Gundy from Maryland to a prison in Pennsylvania. In July 2012, it transferred him from Pennsylvania to a halfway house in New York to complete his sentence. Gundy was released on August 27, 2012. He remained in New York.
In October 2012, Gundy was arrested in New York and charged with violating SORNA’s federal criminal provision. The indictment alleged that Gundy (1) was “an individual required to register” under SORNA based on his 2005 Maryland sex offense, (2) traveled in interstate commerce, and (3) “thereafter resided in New York without registering” as required by SORNA.
Gundy moved to dismiss the indictment, arguing, among other things, that SORNA could not constitutionally apply to him, because Congress delegated too much authority to the Attorney General to make a fundamentally legislative decision about whether SORNA applied to pre-Act offenders. The district court initially dismissed the indictment, but later, on remand from the Second Circuit, rejected Gundy’s constitutional argument. The Second Circuit affirmed, and remanded the case for trial. Gundy was convicted, and the district court sentenced him to time served and five years of supervised release. Gundy appealed, again arguing that SORNA could not constitutionally apply to him. The Second Circuit again rejected this argument. This appeal followed.
In order to protect Congress’s lawmaking authority within our separation-of-powers system—and to ensure that Congress does not cede this authority to the Executive Branch—the Court has set a standard for congressional delegations: it requires Congress to provide “intelligible principles” whenever it delegates authority to enforce the law to agencies within the Executive Branch. This is called the “Nondelegation Doctrine.”
Historically speaking, the Nondelegation Doctrine has been loose and quite permissive, giving Congress wide berth. Thus, the Court has said that a congressional delegation satisfies the Nondelegation Doctrine “if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of th[e] delegated authority.” American Power & Light Co. v. SEC, 329 U.S. 90 (1946). To date, the Court has found only two statutory delegations that violated the Doctrine, and both of those provided almost no guidance to the Executive.
Still, Gundy contends that SORNA’s delegation to the Attorney General to determine the Act’s application to pre-Act offenders violates the Doctrine. Gundy argues first that SORNA provides no intelligible principles to the Attorney General, because it doesn’t say “whether he should make any pre-Act offenders register; which offenders should be required to register; or even what he must (or must not) consider in deciding these questions.” He says that even the government concedes that SORNA allows the Attorney General to take no action at all, to wait years before taking action, and to reverse course at any time. Gundy claims this unbridled authority “can only be characterized as ‘legislative’ power” in violation of the separation of powers.
Gundy argues next that the Court should apply a heightened nondelegation standard in this context, and that SORNA violates the heightened standard, too. In particular, Gundy claims that SORNA delegates “significant power” to the Attorney General “to make policy decisions that bear directly on an individual’s liberty . . . ; disturb settled expectations of law . . . ; and infringe states’ sovereign interests (by regulating purely intrastate conduct and dictating to states, as a condition of federal funding, how they must regulate and criminalize conduct within their own borders).” Gundy contends that these features of SORNA require a heightened nondelegation standard, and that SORNA fails, because “the statute gives the Attorney General no meaningful guidance as to how to exercise these vast powers.”
The government counters that SORNA satisfies the traditional Nondelegation Doctrine. The government says that the Act identifies the official to whom it delegates authority (the Attorney General), and that SORNA’s text and history sufficiently provide a “general policy” that the Attorney General should pursue in making the determination. The government claims that SORNA thus easily satisfies the deferential traditional nondelegation standard.
To illustrate its point, the government contends that SORNA provides the Attorney General the exact same discretion as a hypothetical (and valid) statute that required all pre-Act offenders to register but authorized the Attorney General to grant waivers. Under this hypothetical (and, again, valid) statute, “the scope of [the Attorney General’s] authority . . . would be the same.” The government says that if Congress can enact this hypothetical statute (which it can), then it can also enact SORNA.
The government argues next that the Court need not address Gundy’s argument about a heightened nondelegation standard. The government contends that SORNA does not raise especial concerns that would justify a heightened standard, that the Court has already rejected a heightened standard, and that SORNA would satisfy any standard, anyway.
This case addresses a key question left open the last time the Court took on SORNA, in Reynolds v. United States. 565 U.S. 432 (2012). In that case, the Court ruled that pre-Act offenders do not have to register under SORNA until the Attorney General validly specified that the Act’s registration provisions applied to them. In dissent, Justice Antonin Scalia, joined by Justice Ruth Bader Ginsburg, noted that SORNA potentially raised a nondelegation problem:
it is not entirely clear to me that Congress can constitutionally leave it to the Attorney General to decide—with no statutory standard whatever governing his discretion—whether a criminal statute will or will not apply to certain individuals. That seems to me sailing close to the wind with regard to the principle that legislative powers are nondelegable.
This case picks up that cue. That’s notable, because the Nondelegation Doctrine has been all but dormant since 1935. In that year, the Court ruled in Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), and Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), that two different statutes were unconstitutional. Since then, the Court has not ruled a single act of Congress unconstitutional under the Doctrine. This case could resurrect this long-dormant doctrine.
This could be especially significant in the broader context of a Court that seems increasingly skeptical, even hostile, to aggressive agency rule-making—what some describe as impermissible “lawmaking”—within the Executive Branch. This hostility comes out in the increasingly common arguments from some quarters against judicial deference toward agency rule-making under so-called “Chevron deference.” Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Chevron deference says that the courts should defer to an agency’s interpretation of a statute, so long as the interpretation is reasonable. Opponents of Chevron deference call for greater judicial scrutiny of agency interpretations, in order to rein them in. (As this piece goes to print, Judge Brett Kavanaugh is fielding questions on this precise topic from Senators on the Judiciary Committee.) Arguments against Chevron deference share this feature with arguments against the deferential Nondelegation Doctrine: They both seek to control an Executive bureaucracy that some see as an unaccountable, lawmaking “fourth branch” of government.
Within this context, the Court’s ruling could contribute to a more general move by the Court to rein-in Executive agency actions. Such a move could shift power away from Executive agencies to Congress.
But on that point, it’s important to remember that in our separation-of-powers system there’s a third independent branch of government, the judiciary. And if the Court exercises its prerogative to shift power in this way—by tightening up the Nondelegation Doctrine, by doing away with Chevron deference, or by otherwise reining in agencies’ actions—it looks more like the Court is the branch that gets a boost in power.
The Supreme Court will hear oral arguments tomorrow in Madison v. State of Alabama, the case testing whether the Eighth Amendment prohibits a state from executing a person whose medical condition prevents him from remembering his crime. Here's my preview from the ABA Preview of United States Supreme Court Cases (with permission):
In April 1985, Vernon Madison visited the home of his ex-girlfriend, Cheryl Green. Madison, who until a few days earlier had been living with Green, was there to collect some personal items.
At the same time, police officer Julius Schulte came to Green’s home in order to investigate a report that Green’s 11-year-old daughter was missing. Green’s daughter came home before Schulte arrived. Nevertheless, Schulte, at the request of Green’s neighbors, stayed at Green’s home to protect Green and her daughter until Madison left.
Madison at one point left Green’s property. But he returned with a pistol and shot Schulte twice in the head, killing him, as Schulte sat in his car. Madison also shot Green twice in the back.
Madison was convicted of capital murder, and the trial court sentenced him to death. The state appeals court reversed, however, concluding that Madison showed that the prosecutors excluded black veniremembers in violation of Batson v. Kentucky, 476 U.S. 79 (1986). After a second trial, Madison was again convicted of capital murder and again sentenced to death. But the appeals court again reversed his conviction, this time because the prosecutors introduced inadmissible evidence. Finally, after a third trial, Madison was again convicted and sentenced to death, and state appeals courts affirmed.
Madison pursued a series of state and federal post-conviction, collateral challenges. Each of these was ultimately denied. The Supreme Court declined to intervene. Madison v. Thomas, 135 S. Ct. 2346 (2015).
During this period (and while he was in prison), Madison suffered multiple strokes that left him severely impaired. In May 2015, he suffered a basilar artery occlusion, which caused bilateral cerebral and occipital infarctions and resulted in increased brain pressure, white matter attenuation, and possible temporal lobe damage. In January 2016, he suffered a thalamic stroke, which left him disoriented, appearing “very confused,” and with significant memory loss. (Madison suffered other strokes, too, which “negatively impacted his cognitive and body functioning,” but the details are less clear.)
Madison now suffers from encephalomalacia, meaning that there are some areas of his brain where the tissue is dead. He also suffers from vascular dementia, cognitive deficits, severe memory loss, and other chronic conditions that have decreased his capacity to “rationally understand his circumstances.”
After the state Attorney General asked the Supreme Court of Alabama to set an execution date, Madison filed state-court post-conviction petitions claiming that he was incompetent to be executed. At a hearing to evaluate his competence, Madison presented evidence of his cognitive injuries, dementia and memory loss, and diminished capacity for understanding his circumstances. In particular, Madison’s expert, Dr. John Goff, a neuropsychologist, testified that Madison’s memory had significantly declined, that he could not remember important events and facts, that he had a borderline-intelligence IQ of 72, and that he could not perform basic cognitive functions. The court-appointed expert, Dr. Karl Kirkland, agreed that Madison suffered physical and cognitive decline as a result of his strokes, but that Madison remembered the details of his court cases and had “a rational understanding that he is to be executed for killing a police officer in 1985.”
The state court found Madison competent to be executed. Under state law, Madison could not appeal this finding. So he brought a federal habeas corpus suit, raising the same claims that he raised in the state-court proceedings. The federal district court denied Madison’s application, but the United States Court of Appeals for the Eleventh Circuit reversed. The Supreme Court summarily reversed in Dunn v. Madison, 138 S. Ct. 9 (2017), although Justice Ruth Bader Ginsburg noted in concurrence that “[t]he issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a substantial question not yet addressed by the Court.”
After the state set Madison’s execution date, Madison filed a second state-court petition challenging his competency to be executed. The court rejected Madison’s petition, writing that it “did not provide a substantial threshold showing of insanity . . . sufficient to convince this Court to stay the execution.”
This appeal followed.
The Supreme Court ruled in Panetti v. Quarterman, 551 U.S. 930 (2007), that the Eighth Amendment prohibits a state from executing a person whose mental capacity prevents him or her from comprehending the reason for his or her punishment or rationally understanding the punishment. Moreover, the Court held that the state must provide a minimum process for a convicted person to show that he or she lacks this mental capacity. The Court so ruled because important purposes of capital punishment—retribution against a person who recognizes the severity of his or her offense, and “community vindication”—are ill-served by executing a person who lacks this fundamental mental capacity.
At the same time, however, the Court has never said whether Panetti applies to individuals, like Madison, who, because of cognitive impairments, simply cannot remember his or her crime. And it’s never said whether, independent of Panetti, the Eighth Amendment and its “evolving standards of decency” prevent a state from executing a person who cannot remember the crime. These issues are what this case is about.
Madison argues first that his cognitive impairments render him unqualified for the death penalty under Panetti. He claims that because of his impairments he cannot “understand the circumstances surrounding a scheduled execution,” and thus falls squarely within the Panetti rule prohibiting his execution.
Madison argues next that his execution would not serve the penological objectives of the Eighth Amendment. He contends that his impairments—including both his inability to understand why he will be executed and his inability to remember his crime—mean that his execution would not serve any retributive purpose, or any other penological objective, for that matter.
Finally, Madison argues that “advances in neurological science now make clear the nature of this incompetency.” This means that condemned prisoners can’t simply fake a cognitive impairment to cleverly get out from under the death penalty, and that a ruling in his favor will not open the floodgates to false claims of memory loss.
The state counters that the state court’s conclusions satisfy Panetti. It says that Madison’s cognitive impairments do not preclude him from understanding that he is being punished for killing Officer Schulte, “or from sharing the community’s understanding of crime, punishment, retribution, and death.” The state contends that while Madison may not remember his crime, understanding his punishment is different. And the state court properly concluded, under Panetti, that Madison understood his punishment (even if he cannot remember his crime) and thus qualified for the death penalty.
The state argues next that nothing about the Eighth Amendment prohibits a state from executing a person who cannot remember his or her crime. The state asserts that neither the common law, “objective indicia of society” and professional associational standards, nor the retributive and deterrence purposes of the death penalty would counsel against a state executing a person who does not remember the crime. The state writes, “Madison’s mental condition does not preclude him from understanding that he is being punished for murdering a police officer or that such a murder is a grave moral wrong,” and “Madison’s execution will serve as an example to others that the intentional murder of a police officer will be punished.”
Finally, the state argues that Madison’s approach would increase the potential for false claims of cognitive impairment and manipulation of the death-penalty system. The state says that Madison’s argument gives undue weight to a diagnosis of dementia; that Madison’s argument would open the door to incompetence claims due to other cognitive impairments; and that “a person’s assertion that he cannot remember his crime is not objectively verifiable.”
This case addresses an important unanswered question in the Court’s Eighth Amendment jurisprudence: Does the Eighth Amendment prohibit a state from executing an individual who cannot remember his or her crime?
The question comes on the heels of a series of rulings in the last couple decades that restrict the application of the death penalty and mandatory lifetime imprisonment. Thus, the Court ruled that the Eighth Amendment forbids imposing the death penalty for nonhomicide crimes, Kennedy v. Louisiana, 554 U.S. 407 (2008), and on mentally retarded defendants. Atkins v. Virginia, 536 U.S. 304 (2002). The Court held that the Amendment bars capital punishment for children, Roper v. Simmons, 543 U.S. 551 (2005), and life sentences without parole for children who commit nonhomicide offenses. Graham v. Florida, 560 U.S. 48 (2010). Most recently, the Court ruled in Miller v. Alabama, 567 U.S. 460 (2012), that the Eighth Amendment prohibits a state from imposing a mandatory life sentence without parole for a juvenile defendant. (Bryan Stevenson, Madison’s attorney, argued that case.)
These were all closely divided, 5-4 rulings along traditional ideological lines (save for Graham and Atkins, which were both 6-3, with Chief Justice John Roberts concurring in Graham). Justice Kennedy not only sided with the majority in each of these cases, he also wrote the majority opinions in Miller, Kennedy, Graham, and Roper. In other words, Justice Kennedy was not only the swing vote on these issues, he was the Court’s leader on them.
Without Justice Kennedy on the Court, there may not be a majority to overturn the state court ruling here. (Among the Court’s conservatives, Chief Justice Roberts is probably the closest to the progressives on these issues, and yet he is probably less willing than Justice Kennedy to restrict the death penalty.) If Chief Justice Roberts joins the conservatives, the state court ruling will stand, whether or not the Senate confirms Judge Brett Kavanaugh in time for this case. (A Justice Kavanaugh seems likely, though not certain, to side with the conservatives, creating a likely 5-4 split against Madison. But even without a Justice Kavanaugh, a 4-4 split (along conventional ideological lines) would uphold the lower court ruling, without producing a precedential opinion.)
More generally, Justice Kennedy’s replacement seems likely to go against Justice Kennedy on any of these cases that carve out categorical exceptions to the death penalty and mandatory life sentences under the Eighth Amendment. If so, a new, conservative 5-4 majority could restrict or even undo much of the work that Justice Kennedy did on these issues.
Friday, September 28, 2018
In a Memorandum & Order in Students For Fair Admissions (SFFA) v. Harvard, United States District Judge Allison D. Burroughs has denied the cross-motions for summary judgment in this closely-watched case challenging affirmative action admissions at Harvard as discriminating against Asian-American applicants.
Although Harvard is a private university and the claim is under Title VI of the 1964 Civil Rights Act, 42 U.S.C. §2000d et. seq., the applicable precedent involves the constitutionality of affirmative action in higher education under the Equal Protection Clause. As Judge Burroughs explained in footnote 16 of the opinion:
[Defendant] Harvard notes that the Supreme Court has only addressed race-conscious admissions policies of public universities, and suggests that there are “good reasons to think that” the applicable Supreme Court precedent does not apply in the same manner to private universities like Harvard that are subject to Title VI. Because Harvard does not identify any specific reasons for distinguishing public universities from federally-funded private universities, or explain how the analytical framework would differ for private versus public litigants, the Court at this stage places Harvard on equal footing with a public university in applying Grutter [ v. Bollinger (2003)] and its progeny. See Grutter, 539 U.S. at 343 (“[T]he Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. Consequently, petitioner’s statutory claims based on Title VI . . . also fail.”); id. (“Title VI . . . proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment” (citing Regents of Univ. of California v. Bakke, 438 U.S. 265, 287 (1978))).
Thus, relying on Fisher v. University Texas at Austin (2013) (Fisher I) and Fisher v. University of Texas at Austin (2016) (Fisher II), as well as Grutter, Judge Burroughs held that strict scrutiny should apply.
After detailing the Harvard admissions policy as implemented and concluding that the case is not moot, Judge Burroughs considered the four claims by SFFA: intentional discrimination, racial balancing, race as a plus factor, and race-neutral alternatives.
First, Judge Burroughs concluded that the dueling reports by experts regarding the presence or absence of a negative effect of being Asian-American on the likelihood of admission essentially precluded summary judgment. The experts' contradictory conclusions derived in part from their "divergent modeling choices" and the "credibility of the expert witnesses in making these critical modeling and analytical choices is best evaluated at the upcoming bench trial." Moreover, "stray" positive and negative remarks were also best evaluated at trial.
Second, Judge Burroughs states that while "racial balancing" has been deemed unconstitutional, the parties present "plausible but conflicting interpretations" of Harvard's use of its own admissions data from previous years. Again, the matter of credibility would be paramount.
Third, SFFA argued that Harvard was not specifically employing the notion of "critical mass" and Harvard was not considering race as a mere "plus factor." Judge Burroughs concludes that there is no requirement of "critical mass" to satisfy strict scrutiny — the use of "critical mass" was simply part of the admissions policies of the universities in Michigan (in Grutter) and Texas (in Fisher). However, as to the use of race as a plus factor, Judge Burroughs noted that under Fisher II (and Fisher I), the university is entitled to no deference in whether its means chosen is narrowly tailored and thus again the issue of credibility and fact were best determined at trial.
Fourth and finally, SFFA's argument that Harvard has failed to consider race-neutral alternatives, there was a factual dispute regarding the timing of Harvard's reconsideration of such alternatives which coincided with the imminence of the lawsuit in 2014. SFFA's expert argued that Harvard "can easily achieve diversity by increasing socioeconomic preferences; increasing financial aid; reducing or eliminating preferences for legacies, donors, and relatives of faculty and staff; adopting policies using geographic diversity; increasing recruitment efforts; increasing community college transfers; and/or eliminating early action." The Harvard Committee reached the opposite conclusion.
In short, the litigation seems set to proceed to trial perhaps with a path to the United States Supreme Court.
Judge Emmet G. Sullivan (D.D.C.) ruled today in Blumenthal v. Trump that members of Congress have standing to sue President Trump for violations of the Foreign Emoluments Clause. At the same time, Judge Sullivan declined to rule on the President's other three arguments for dismissal--that the plaintiffs lack a cause of action, that they've failed to state a claim (because the President's business interests aren't "emoluments" under the Clause), and that injunctive relief sought is unconstitutional. Thus, the ruling is a set-back for the President, but Judge Sullivan may yet end up dismissing the case on other grounds.
We posted here on the earlier district court ruling that another Emoluments case, brought by Maryland and D.C., can move forward.
The Congressmembers' case alleges that President Trump's overseas business holdings and properties generate income and benefits for the President, without the consent of Congress, in violation of the Foreign Emoluments Clause. That Clause says:
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
The 201 plaintiffs seek declaratory and injunctive relief. They claimed that they were harmed (for standing purposes) because the President, by failing to seek congressional consent, denied each of them a "vote on the record about whether to approve his acceptance of a prohibited foreign emolument."
The court agreed:
[E]ach time the President allegedly accepts a foreign emolument without seeking congressional consent, plaintiffs suffer a concrete and particularized injury--the deprivation of the right to vote on whether to consent to the President's acceptance of the prohibited foreign emolument--before he accepts it. And although the injury is an institutional one, the injury is personal to legislators entitled to cast the vote that was nullified.
The court went on to say that standing didn't violate the separation of powers. The court held that the plaintiffs lacked an alternative legislative remedy, and that the case was appropriate for judicial review.
September 28, 2018 in Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)
Thursday, September 27, 2018
Wednesday, September 26, 2018
Senator Jeff Merkley today sued President Trump, Senate colleagues, and others in federal court (D.D.C.) to halt the confirmation process of Judge Brett Kavanaugh. Senator Merkley argues that the defendants' actions violate the separation of powers and the Senate's constitutional role in providing advice and consent on Judge Kavanaugh's nomination to the Supreme Court.
The lawsuit relates to the defendants' failure to produce documents, not the more recent sexual assault and misconduct allegations against Judge Kavanaugh. The government will surely file a motion to dismiss based on the political question doctrine (itself a separation-of-powers matter), among others. The outcome of the case (and the confirmation process more generally) will set the standards for document release and Senate advice-and-consent for future judicial nominations, by Republicans and Democrats alike.
Here's the gist:
This case arises from the direct and substantial interference by President Trump and other agents of the executive branch in the ability of the Senate to examine the record and evaluate the fitness of Judge Brett Kavanaugh, the President's nominee for a lifetime appointment as an Associate Justice of the Supreme Court of the United States. President Trump and agents of the executive branch interfered in the ability of Senator Merkley and the Senate to provide advice and consent by, inter alia, imposing a broad and unprecedented blockade on the Senate's and public's access to reams of key documents that directly bear on Judge Kavanaugh's views, experience, and character. This improper process regarding the production of relevant documents prevents Senator Merkley and his colleagues from properly exercising their constitutional obligation to provide advice and consent on the qualifications of the nominee and deprives them of the ability to fully assess the nominee's fitness to assume the position of an Associate Justice of the United States Supreme Court.
The President and officers of the executive branch have interfered in the Senate's advice and consent responsibility in three critical ways: encouraging the Senate Majority to not request documents related to Kavanaugh's time while serving as Staff Secretary to George W. Bush; blocking access to an extensive set of documents related to the nominee's views and actions while serving in President George W. Bush's Office of White House Counsel; and blocking full access by all Senators and the public to documents delivered to the Senate Judiciary Committee but marked "Committee Confidential."
Senator Merkley asks the court to order that
(a) Defendant Trump withdraw his excessive invocation of executive privilege and produce a privilege log for documents truly subject to executive privilege;
(b) Defendants McConnell, Grassley, Adams, and Stenger not hold or permit a vote on the nominee's confirmation, or otherwise act to advance the confirmation process, until the National Archives releases his records, including the records requested by Senator Grassley regarding the nominee's work at the Office of White House Counsel, and there is sufficient time for the U.S. Senate to review the documents and conduct a careful review of the newly released documents;
(c) National Archives expedite the production of the documents to the earliest date practical;
(d) Defendant Burck cease and desist from usurping the traditional role of the neutral professionals at the National Archives.
Check out Emily Bazelon's feature in the New York Times Magazine, Will Florida's Ex-Felons Finally Regain the Right to Vote?, on the history of felon disenfranchisement in the state, and the referendum effort to re-enfranchise 1.5 million ex-felons.
Monday, September 24, 2018
In its divided opinion in Brakebill v. Jaeger, an Eighth Circuit panel has stayed a district judge's injunction against enforcement of a North Dakota statute requiring a valid form of identification that includes the prospective voter's current residential street address in North Dakota. The district court had found that this provision violated the Equal Protection Clause and ordered that the state accept either a "current residential street address or a current mailing address (P.O. Box or other address) in North Dakota.” (The district court had also found that other tribal identification rules violated equal protection, but the state did not appeal those portions of the injunction.)
The majority of the Eighth Circuit reasoned that this residential street address requirement was neutral and as applied to the six named plaintiffs, did not impose an excessive burden. In its brief opinion, the majority concluded that North Dakota was not only likely to succeed on the merits, but would also be irreparably harmed without a stay, in large part because North Dakota does not have a voter registration requirement. "
If the Secretary must accept forms of identification that list only a mailing address, such as a post office box, then voters could cast a ballot in the wrong precinct and dilute the votes of those who reside in the precinct. Enough wrong-precinct voters could even affect the outcome of a local election. The dissent’s suggestion that the State protect itself from this harm by using maps or affidavits would require North Dakota to reinstate self-certification methods that the legislature already deemed insufficiently reliable when it adopted the residential street address requirement. The inability to require proof of a residential street address in North Dakota also opens the possibility of fraud by voters who have obtained a North Dakota form of identification but reside in another State while maintaining a mailing address in North Dakota to vote. The dissent deems this impossible, because only a resident of the State is supposed to receive a form of identification, but the injunction prevents election officials from verifying that a voter with such an identification has a current residential street address in the State. Even if the State can prosecute fraudulent voters after the fact, it would be irreparably harmed by allowing them to vote in the election.
Dissenting, Judge Jane Kelly argued that it was important that identification cards required a fee, and though state law required the Department of Transportation to provide free non-driver identification cards, the state did not do so in practice (and its website actually stated that a fee was necessary). Instead of an injury to North Dakota, Judge Kelly contended that the injury would be to prospective voters, like the six Native American plaintiffs, who would be potentially denied the right to vote.
Sunday, September 23, 2018
The student chapter of the American Constitution Society at Barry University School of Law and Texas A&M University School of Law are hosting the Fourth Annual Constitutional Law Scholars Forum at the Dwayne O. Andreas School of Law Campus, 6441 East Colonial Drive, Orlando, FL 32807.
The Constitutional Law Scholars Forum invites scholarly proposals on constitutional law at any stage of pre-publication development, from the germination of an idea to the editing stage. The Forum provides an opportunity for scholars and educators to vet their work-in-progress in a welcoming, supportive environment. (The Forum is not accepting proposals from students at this time.)
The deadline to submit proposals is December 1, 2018.
There are no conference fees and meals are provided.
Email proposals to Professor Eang Ngov, firstname.lastname@example.org, with “Constitutional Law Scholars Forum” in the subject line. Submissions should include a short abstract (300 words maximum) and biography (150 words maximum).
Professor Eang Ngov, email@example.com, office (321) 206 -5677, cell phone (571) 643-2691
Professor Meg Penrose, firstname.lastname@example.org
Thursday, September 20, 2018
The Ninth Circuit ruled in Fikre v. FBI that the plaintiff's due process challenges to his inclusion on the government's no-fly list were not moot, even though the government took him off the list during the litigation. The ruling means that the plaintiff's case challenging his inclusion on the no-fly list can move forward.
The case arose from Yonas Fikre's inclusion on the no-fly list and his several and significant resulting harms. Fikre alleged that his inclusion violated substantive and procedural due process, and he sought declaratory and injunctive relief. During the litigation, the government removed Fikre from the list, however, and moved to dismiss the case as moot. The district court granted the motion.
The Ninth Circuit reversed. The court ruled that Fikre's case came under the voluntary cessation exception to mootness--that signs pointed to the government opportunistically removing him, and that the government could reinstate him at any time. The court explained:
To begin, the FBI's decision to restore Fikre's flying privileges is an individualized determination untethered to any explanation or change in policy, much less an abiding change in policy. . . .
Moreover, the government has no assured Fikre that he will not be banned from flying for the same reasons that prompted the government to add him to the list in the first place, nor has it verified the implementation of procedural safeguards conditioning its ability to revise Fikre's status on the receipt of new information. . . .
Finally . . . we note that Fikre's removal from the No Fly List does not "completely and irrevocably eradicate the effects of the alleged violation[s]."
The ruling sends the case back to the district court for further proceedings.
Over at "First Amendment News" (FAN) by Ron Collins, a symposium of 15 women scholars on the current state of the First Amendment. In her forward, Kellye Testy comments on the "relative lack of women’s visibility in First Amendment jurisprudence," by noting that what “counts” as First Amendment scholarship is subject to a sexist lens and that protecting "free speech" can be a male preoccupation given that "men who have had “free speech” want to keep speaking," but "women’s speech has been restrained, both as a matter of formal law and of social practices, including violence."
A number of the contributions focus on free speech in the "Trump-era" or in the "internet-era" or both, including my own.
Here's the list of authors and titles, all accessible here:
Jane Bambauer, “Diagnosing Donald Trump: Professional Speech in Disorder”
Mary Anne Franks, “The Free Speech Fraternity”
Sarah C. Haan, “Facebook and the Identity Business”
Laura Handman & Lisa Zycherman, “Retaliatory RICO: A Corporate Assault on Speech”
Marjorie Heins, “On ‘Absolutism’ and ‘Frontierism’”
Margot Kaminski, “The First Amendment and Data Privacy: Between Reed and a Hard Place”
Lyrissa Lidsky, “Libel, Lies, and Conspiracy Theories”
Jasmine McNealy, “Newsworthiness, the First Amendment, and Platform Transparency”
Helen Norton, “Taking Listeners’ First Amendment Interests Seriously”
Tamara Piety, “A Constitutional Right to Lie? Again?: National Institute of Family and Life Advocates d/b/a NIFLA v. Becerra”
Ruthann Robson, “The Cyber Company Town”
Kelli Sager& Selina MacLaren, “First Amendment Rights of Access”
Sonja West, “President Trump and the Press Clause: A Cautionary Tale”
Wednesday, September 19, 2018
The Supreme Court yesterday declined to stay a lower court ruling that struck an FEC reg that created a disclosure loophole for 501(c)(4) organizations.
The reg allowed 501(c)(4)s and cooperating super-PACs to avoid statutory disclosure requirements. The district court ruled that the reg was at odds with statutory disclosure requirements.
Chief Justice Roberts last week issued an order (without opinion) staying the district court ruling, but yesterday the full Court vacated the Chief's order and denied the stay (also without an opinion).
Under the (now not stayed) district court ruling, the FEC has 45 days to come up with new regs that comply with the statute.
Tuesday, September 18, 2018
In need of a new playlist — something constitutional perhaps?
Try "27: The Most Perfect Album" available from WNYC Radiolab here.
A bit of text about each of the amendments, but the treasure is the linked songs. For example, the Third Amendment features Palehound and They Might be Giants. Not to be missed is the Fifteenth Amendment
Not to be missed are the Fifteenth Amendment pieces by Aisha Burns and Nnamdi Ogbonnaya. But the whole project is worth a listen - and one can play through the list.
Wednesday, September 12, 2018
The UNLV William S. Boyd School of Law is calling for presenters and commenters for this exciting symposium, Dignity, Tradition, & Constitutional Due Process: Competing Judicial Paradigms, March 14-15, 2019, in Las Vegas.
The Court's determination regarding which paradigm to apply [a "deeply rooted" historical paradigm, or a "dignity" paradigm] depends, of course, on which receives at least five affirmative votes in any given appeal. Until his recent retirement, Justice Anthony Kennedy usually was the deciding vote. The probable confirmation of Hon. Brett Kavanaugh to Kennedy's seat may portend severely limited use of the dignity paradigm, if not its effective demise.
Our symposium . . . explores which of these two seemingly irreconcilable standards is correct, or whether there are one or more alternative approaches the courts should use.
Tuesday, September 11, 2018
In its opinion in Nwanguma v. Trump, a panel of the Sixth Circuit ruled that the complaint against Donald Trump and his campaign for damages based on "inciting to riot" during a Kentucky event should be dismissed. Recall that the district judge denied Trump's motion to dismiss the complaint's count of incitement to riot based on events during a campaign event in Louisville, Kentucky on March 1, 2016. The complaint alleged that the candidate told the crowd “Get ’em out of here,” when the plaintiffs were "peacefully protesting" at a campaign rally, and as a result of the candidate's encouragement, three individual defendants pushed, shoved, and struck the three plaintiffs.
The Sixth Circuit's opinion, authored by Judge David McKeague, agreed with the district judge that the relevant precedents were Brandenberg v. Ohio (1969), Hess v. Indiana (1973), and the Sixth Circuit's en banc decision in Bible Believers v. Wayne County (2015). However, the Sixth Circuit criticized the district judge's analysis on some of the elements of the Kentucky incitement to riot statute as "decidedly thin." For Judge McKeague, seemingly the most important fact of the Trump speech was that Trump's repeated statement “Get ’em out of here" was followed by "don't hurt 'em." Thus, "any implication of incitement to riotous violence is explicitly negated": "If words have meaning, the admonition 'don't hurt 'em' cannot reasonably be construed as an urging to "hurt 'em.'"
After considering the elements of the Kentucky incitement to riot statute, Judge McKeague then considers the First Amendment protection that inheres in the definition of incitement to riot. Yet on both issues, Trump's "don't hurt 'em" statement figures prominently. Again, while in "the ears of some supporters, Trump's words may have had a tendency to elicit a physical response" they are undercut by the words "don't hurt 'em."
Judge Helene White's short concurring opinion argues that the "majority opinion elides salient details of Trump's speech that make this a closer case" for her than for the majority opinion which "overemphasizes the legal significance of the 'don't hurt 'em' statement." However, Judge White concurs because she concludes that the allegations do not meet the Kentucky statute's definition, and therefore the court should not have reached the First Amendment issue.