Constitutional Law Prof Blog

Supreme Court Rejects Strong Independent State Legislature Theory

The Supreme Court today flatly and unequivocally rejected a strong version of the independent state legislature theory (ISL)--the theory that state legislatures have plenary authority over rules for federal elections in their states. But it left open federal judicial review of state-court decisions on state election laws that are out of line (to one degree or another, the Court didn't specify) with state law.

ISL is the theory that a state legislature--and a state legislature alone--can set state election law for federal elections. It's based on a literal reading of the U.S. Constitution's Election Clause, which says "the Legislature" of each state shall prescribe "[t]he Times, Places and Manner of holding Elections for Senators and Representatives . . . ." According to ISL, "the Legislature" means the state legislature alone, and not the broader lawmaking authority of the state under the state constitution (which includes state-court judicial review of state legislative acts, the governor's signature or veto, etc.). The Constitution's Electors Clause reads similarly, and similarly grants authority to "the Legislature" to direct the process for the appointment of the state's electors in a presidential election.

The ruling means that state courts can continue to rule state election laws unconstitutional under the state constitution, and that they can continue to interpret state election laws in light of their own state law. In other words, state courts continue to have the power of judicial review in the area of state election law. But at the same time, state court review itself is subject to federal court review if the state court goes too far out of line. (Again, how far we do not know.)

It's not clear how this'll all play out. But there are some certainties. For one, the Court flatly rejected the strong version of ISL--that state legislatures have plenary power to set state election law for federal elections, without review by state courts and not subject to state constitutional requirements. For another, to the extent that former President Trump's team relied on the strong version ISL to overturn the electoral results in several states in the 2020 presidential election (it was central to that effort), and to the extent that the Court's approach to ISL is the same under the Elections Clause and the Electors Clause (they appear to be exactly the same), the Court closed the door to these kinds of shenanigans in future presidential elections. In particular, today's ruling seems to flatly foreclose any effort by a state legislature to circumvent existing state law and state-court rulings and unilaterally appoint electors to whomever it wishes.

And just to put an exclamation point behind all of that, Chief Justice Roberts wrote the Court's opinion (joined by Justices Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson). That's significant, because Chief Justice Roberts dissented in Arizona State Legislature v. Arizona Independent Redistricting Commission, the Court's latest foray into the Elections Clause, upholding Arizona's independent redistricting commission against an ISL-type challenge. Chief Justice Roberts argued that the Court got it wrong, with a full-throated defense of ISL.

Less clear, however, is how the Supreme Court may intervene in future state-court cases involving more run-of-the-mill (but nevertheless hugely important) state election-law issues--what standard it'll use to assess those rulings, how much deference the Court will give to state courts to interpret their own state laws and state constitutions, and how the Court is likely to rule in those cases.

The case, Moore v. Harper, arose when the North Carolina legislature gerrymandered its congressional districts. Plaintiffs sued in state court, arguing that the gerrymander violated the state constitution. (They didn't sue in federal court or raise a federal claim, because the Supreme Court ruled in Rucho v. Common Cause that partisan gerrymandering claims under the federal Constitution are nonjusticiable "political questions.") The North Carolina Supreme Court agreed with the plaintiffs, ruled the congressional map unconstitutional under the state constitution, and remanded the case to the state trial court to oversee the drawing of a new map.

North Carolina legislative leaders sought Supreme Court review, arguing that the state supreme court violated the federal Constitution's Elections Clause by overturning the state legislature's election law (the congressional districting map). After the Court agreed to hear the case, however, the state supreme court (after a judicial election) reversed course and ruled that partisan gerrymandering isn't justiciable under the state constitution. The court withdrew and "overruled" its earlier decisions.

After that latest move by the state supreme court, the case raised two issues at the U.S. Supreme Court: (1) Is the case moot in light of the state supreme court's latest ruling, and (2) does the state supreme court's first ruling (the one overturning the legislature's partisan gerrymander under the state constitution) violate the federal Elections Clause.

As to mootness, the Court held that the case still presented a live controversy, because the state supreme court's most recent ruling didn't change that court's first judgment that halted the state's use of its gerrymandered map. (It only ruled that the question was nonjusticiable.) Moreover, the Court said that federal law authorized it to hear the case. "The record shows that Harper I finally decided the Elections Clause question, the judgment in that case continues to bind the parties before us, and the 2021 congressional maps would again take effect in North Carolina were we to reverse. Accordingly, we have jurisdiction under both Article III and [28 U.S.C. Sec. 1257(a)]."

As to the merits, the Court held that the idea that state courts can review state legislative acts under the state constitution and state laws was hard-wired into our federal constitutional system even before the framing, that state-court judicial review is therefore part of the state's lawmaking authority, and that state-court judicial review is part of "the Legislature" under the Election Clause. The Court said that Court precedent supported this result.

The Court went on to say that the Supreme Court could still review those state-court rulings that are out of line with the federal Constitution or state law (including the state constitution). But it didn't provide a standard or rule for this kind of review, instead leaving it open for future cases.

Justice Kavanaugh concurred, noting that the Court didn't set a standard, but arguing for the standard that Chief Justice Rehnquist pushed in Bush v. Gore: "whether the state court 'impermissibly distorted' state law 'beyond what a fair reading required.'"

Justice Thomas dissented on mootness (joined by Justices Alito and Gorsuch) and on the merits (joined only by Justice Gorsuch). He also noted the Court's lack of standard for future cases,  saying that he "would hesitate long before committing the Federal Judiciary to this uncertain path," especially in "an advisory opinion, in a moot case . . . ."

Seventh Circuit Upholds Anti-Patronage Consent Decrees Against Cook County Clerk

Steven D. Schwinn, University of Illinois Chicago School of Law

The Seventh Circuit yesterday rebuffed the Cook County Clerk's challenge to a pair of consent decrees designed to monitor political patronage practices in that office and others. The ruling means that the decrees stay on the books (or, more precisely, on the district court's docket). But at the same time, the court warned that federalism concerns counsel in favor of resolving the case, and clearing the decrees from the court's docket, "swift[ly]."

The case, Shakman v. Clerk of Cook County, originated with two consent decrees, the "Shakman Decrees," from 1972 and 1991. The 1972 Decree enjoined Chicago and Cook County officials from "conditioning, basing or knowingly prejudicing or affecting any term or aspect of governmental employment, with respect to one who is at the time already a governmental employee, upon or because of any political reason or factor." The 1991 Decree expanded the 1972 Decree to cover hiring decisions: among other things, it required officials to post "prior public notice of the opportunity to apply for and be hired for" all positions, with just a few exceptions. (The City of Chicago and the Chicago Park District have since demonstrated substantial compliance and have been dismissed.)

While the Shakman Decrees remained on the district court's docket, there wasn't really any significant activity until 2019. That's when Shakman, the Voters Organization, and other plaintiffs moved for the appointment of a special master to monitor the Clerk's compliance with the Decrees. The plaintiffs claimed that the Clerk's hiring practices violated the 1991 Decree and that the Clerk took retaliatory actions against employees in violation of the 1972 Decree.

The Clerk opposed the motion and asked the magistrate judge to vacate both Decrees. After discovery and an evidentiary hearing, the magistrate judge found that the Clerk violated the Decrees, appointed a special master, and rejected the Clerk's request to vacate the Decrees. The Clerk appealed, arguing that the plaintiffs lacked standing, that the case raised nonjusticiable political questions, and that the Clerk's actions didn't violate the Decrees.

The Seventh Circuit disagreed. The court ruled first that the plaintiffs had standing, because at least one member of the Voters Organization was a current employee in the Clerk's office who refused to engage in political patronage and suffered reprisal. The court said next that the case didn't raise a nonjusticiable political question, because "both the legal right and applicable standard here"--free association under Elrod v. Burns--"are evident and judicially manageable." Finally, the court held that the magistrate judge didn't clearly err in concluding that the Clerk's "ongoing violations reflect the precise political patronage the Consent Decrees seek to end."

The court noted, however, that federalism considerations counsel in favor of ending the Decrees now, or very soon:

Our federal structure, including the Article III Case or Controversy requirement, does not contemplate federal courts putting units of state or local government under what amounts to static and permanent consent decrees. Federal injunctions interfere with local control over local decision making, and, in turn, local democracy does not work as our federal constitutional design envisions.

Daily Read: Chief Justice's Year-End Report on the Judiciary

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.

Daily Read: The Contempt Power of Congress

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The practice and the announcement of the White House that it will not cooperate with the House of Representatives Impeachment Inquiry as we discussed here, raises the question of the resources available to Congress to enforce its subpoenas.  And as in so many cases about Congressional matters, there is a Congressional Research Service Report for that: Congressional Subpoenas: Enforcing Executive Branch Compliance, updated March 27, 2019.  

The Report includes this overview:

Congress currently employs an ad hoc combination of methods to combat non-compliance with subpoenas. The two predominant methods rely on the authority and participation of another branch of government. First, the criminal contempt statute permits a single house of Congress to certify a contempt citation to the executive branch for the criminal prosecution of an individual who has willfully refused to comply with a committee subpoena. Once the contempt citation is received, any later prosecution lies within the control of the executive branch. Second, Congress may try to enforce a subpoena by seeking a civil judgment declaring that the recipient is legally obligated to comply. This process of civil enforcement relies on the help of the courts to enforce congressional demands.

Congress has only rarely resorted to either criminal contempt or civil enforcement to combat non- compliance with subpoenas . . . . 

[footnotes omitted].

Of special note later in the Report is a discussion of "detention" of executive branch officials:

Although rare, the inherent contempt power has been used to detain executive branch officials, including for non-compliance with a congressional subpoena. During an 1879 investigation into allegations of maladministration by George F. Seward while a consul general in Shanghai, a House committee issued a subpoena to Seward for relevant documents and testimony.254 When Seward—then an ambassador to China—refused to comply, the House passed a resolution holding him in contempt and directing the Sergeant-at-Arms to take him into custody and bring him before the House. Seward was taken into custody and brought before the House, where he was ultimately released while the House considered impeachment articles.

In another example which gave rise to Marshall v. Gordon [1917], the House adopted a contempt resolution directing the Sergeant-at-Arms to arrest U.S. Attorney Snowden Marshall for an insulting letter sent to a committee chair. The arrest was then made and quickly challenged in federal court, where ultimately the Supreme Court ordered Marshall released. In doing so, the Court reaffirmed the contempt power generally, but concluded that in Marshall’s case the contempt was invalid as “not intrinsic to the right of the House to preserve the means of discharging its legislative duties.” Notably, the Court was silent on whether Marshall’s status as an executive branch official had any impact on the House’s exercise of the power.

Given these examples, and the Supreme Court’s general statements on the reach of the inherent contempt power, it would appear to be within Congress’s power to use inherent contempt to compel executive branch compliance with congressional subpoenas, at least in certain circumstances. But neither the Seward nor Marshall example involved an assertion of executive privilege, meaning that the Court did not need to consider what, if any, constraints that privilege may impose upon Congress’s exercise of its inherent contempt authority.

Moreover, an attempt by Congress to arrest or detain an executive official may carry other risks. There would appear to be a possibility that, if the Sergeant-at-Arms attempted to arrest an executive official, a standoff might occur with executive branch law enforcement tasked with protecting that official. This concern is also applicable in the event that a judicial marshal enforces a judicial order of contempt against an executive official, and perhaps will always be “attendant in high-stakes separation-of-powers controversies.”

[footnotes omitted].

There's a great deal more worth reading in this 45 page Report as what some are calling a "constitutional crisis" unfolds.

White House Blasts Impeachment Inquiry, Says it Won't Cooperate

Steven D. Schwinn, University of Illinois Chicago John Marshall Law School

White House Counsel Pat Cipollone sent a scathing letter today to House leadership blasting the impeachment inquiry and stating that the White House won't cooperate. Given White House intransigence so far, it's not clear that the letter will really change anything on the ground.

Cipollone cited two flaws: the process lacks due process protections, and the House has no "legitimate basis" for the inquiry.

As to due process, Cipollone claims that an impeachment inquiry requires due process, and that the House process falls short:

To comply with the Constitution's demands, appropriate procedures would include--at a minimum--the right to see all evidence, to present evidence, to call witnesses, to have counsel present at all hearings, to cross-examine all witnesses, to make objections relating to the examination of witnesses or the admissibility of testimony and evidence, and to respond to evidence and testimony. Likewise, the Committees must provide for the disclosure of all evidence favorable to the President and all evidence bearing on the credibility of witnesses called to testify in the inquiry. The Committees' current procedures provide none of these basic constitutional rights.

Cipollone also complained that the committees' ranking members lack subpoena power, and that "the Committees have also resorted to threats and intimidation against potential Executive Branch witnesses."

The impeachment process, of course, is a nonjusticiable political question under Nixon v. United States. So we don't have the Supreme Court's say-so as to what, if any, measures of due process are required. In the case that Cipollone cites as support for his claim that impeachment requires due process, Judge Hasting's impeachment, Hastings raised similar due process complaints about his trial in the Senate. But in a ruling not cited by Cipollone, the district court ultimately dismissed Hasting's complaint as raising a nonjusticiable political question under Nixon, and therefore did not touch on any process that might be due in an impeachment.

Cipollone's claims don't come in the context of a court case, though, so the political question doctrine doesn't foreclose them. Instead, they may cleverly put House Democrats in an awkward spot. The only practical way that House Democrats can get White House cooperation is to go to court; but if they seek to enforce a subpoena issued in an impeachment inquiry in court, the White House will surely claim that the case is a nonjusticiable political question under Nixon. Regardless of merits of that claim, unless the House can get the courts to enforce their subpoenas, the House will have to base its articles of impeachment only on evidence that it can obtain independent of White House cooperation, and, of course, obstruction. This may make it even more likely (if that's possible) that the House will impeach, but it also may make it even less likely (if that's possible) that the Senate will convict.

As to the lack of a "legitimate basis" for the inquiry, Cipollone argues that President Trump's call to President Zelenskyy "was completely appropriate," that "the President did nothing wrong," and therefore that "there is no basis for an impeachment inquiry." This echoes the familiar (and tenuous) constitutional claim that we've heard from the White House in nearly every congressional investigation--that the House lacks a "legitimate legislative purpose." It also begs the question: the whole purpose of an impeachment inquiry, it seems, is to get more evidence to discover whether there's a basis for going forward with impeachment. The House needs information from the executive branch to help it make that determination.

Cipollone's letter is a stunning rebuke. But in the end, it's not clear that it's much of a game-changer, only because the White House hasn't much cooperated so far, anyway.

Second Circuit Says Emoluments Suit Against Trump Can Move Forward

Steven D. Schwinn, UIC John Marshall Law School

The Second Circuit ruled today in CREW v. Trump that a case alleging that the President violated the Foreign and Domestic Emoluments Clauses can move forward. The ruling rejects the President's arguments that the plaintiffs lack standing and that they fall outside the zones of interests of the Emoluments Clauses. It also rejects the district court's holdings that the case isn't ripe, and that it raises a nonjusticiable political question.

The ruling means that the case can go forward. It says nothing on the merits--whether President Trump actually violated the Emoluments Clauses. Still, it's a significant victory for the plaintiffs. It also splits with the Fourth Circuit, which dismissed an emoluments case in July for lack of standing.

The plaintiffs in the case, Eric Goode, a restauranteur and hotelier, and the Restaurant Opportunities Center United ("ROC"), a non-partisan, member-based organization of restaurants and restaurant workers, alleged that President Trump's properties siphon off business from the plaintiffs' operations when foreign and domestic government entities choose the President's properties over the plaintiffs' in order to enrich the President and gain his favor--all in violation of the Foreign and Domestic Emoluments Clauses. In particular, the plaintiffs allege (1) that they compete with the President's properties, (2) that the President implicitly solicits the patronage of government officials and acknowledged that, in making decisions, he favors governments that patronize his businesses, and (3) that governments have taken note of this, and been influenced by it, in deciding which properties to patronize.

The district court dismissed the case, holding that the plaintiffs lacked standing, that they fall outside the zone of interests of the Emoluments Clauses, that their claims aren't ripe, and that the case raises nonjusticiable political questions.

The Second Circuit reversed. As to standing, the court ruled that the plaintiffs sufficiently pleaded injury, causation, and redressability under competitor-standing theory: "[t]he complaint, supported by expert declarations, alleges that . . . unlawful market conduct skew has caused Plaintiffs economic harm in the form of lost patronage from government entities, and that such harm will continue in the future"; "[t]he complaint adequately pleads a competitive injury of lost patronage directly traceable to the fact that the President's allegedly illegal conduct induces government patrons of the hospitality industry . . . to patronize Trump establishments in favor to Plaintiffs' establishments"; and "[b]ecause Plaintiffs have successfully alleged a plausible likelihood that President Trump's conduct caused their injuries, and the injury is ongoing, it logically follows that [injunctive relief] would redress their injury--at least to some extent, which is all that Article III requires."

As to the zone of interests, the court first held that the Supreme Court recently ruled that zone of interests is not a test of Article III standing. But the court said that in any event, the plaintiffs fell within it: "Without exception, the Court has held that a plaintiff who sues to enforce a law that limits the activity of a competitor satisfies the zone of interests test even though the limiting law was not motivated by an intention to protect entities such as plaintiffs from competition."

As to the political question issue (which the President did not argue at the Second Circuit), the court said that the district court erred in holding that under the Emoluments Clauses "Congress is the appropriate body to determine whether, and to what extent, [the President's] conduct unlawfully infringes on that power." Instead, the court held that under the plain language of the Emoluments Clauses, if Congress doesn't consent to an emolument, it's a violation. And it's the role of the courts to judge just such violations.

As to ripeness (which the President also did not argue), the court said that the district court erred in relying on the prospect of future congressional action and on the reasoning of Justice Powell's concurrence in Goldwater v. Carter. The court held that this case is distinguishable: Goldwater involved an inter-branch dispute over inter-branch powers; but this case simply involves an allegation that the President's private conduct is illegal. "There is no claim on the part of the Congress, or any of its members, that the President's private conduct of his business affairs usurps power allocated to Congress by the Constitution."

Judge Walker dissented, arguing that the plaintiffs lacked standing, consistent with the Fourth Circuit's approach.

D.C. Circuit Says Palestinians' Genocide Claims Against Americans Can Move Forward

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit ruled in al-Tamimi v. Adelson that claims by Palestinians that pro-Israeli American individuals and entities conspired to support genocide in disputed territories does not present a non-justiciable political question. The court remanded the case so that it can move forward.

The case involves Palestinian nationals' and Palestinian-Americans' claims that certain pro-Israeli American individuals and organizations funneled money to Israeli settlements, which then used the funds to train a militia of Israeli settlers to kill Palestinians and confiscate their property. In particular, the plaintiffs alleged that some or all of the defendants (1) engaged in civil conspiracy to rid the disputed territory of all Palestinians, (2) committed or sponsored genocide and other war crimes, (3) aided and abetted the commission of genocide and other war crimes, and (4) trespassed on Palestinian property. The plaintiffs brought their claims under the Alien Tort Statute and the Torture Victims Protection Act.

The district court held that the case raised non-justiciable political questions and dismissed the complaint.

The D.C. Circuit reversed. The court said that the plaintiffs' complaint reduced to two questions for the court: (1) Who has sovereignty over the disputed territory?; and (2) Are Israeli settlers committing genocide? The court ruled that the first question raised a political question, because it "plainly implicates foreign policy and thus is reserved to the political branches." But it ruled that the second question didn't:

An ATS claim, then, incorporates the law of nations. And it is well settled that genocide violates the law of nations. Genocide has a legal definition. Thus, the ATS--by incorporating the law of nations and the definitions included therein--provides a judicially manageable standard to determine whether Israeli settlers are committing genocide. . . . We are well able, however, to apply the standards enunciated by the Supreme Court to the facts of this case. . . .

In light of the statutory grounds of plaintiffs' claims coupled with Zivotofsky I's muteness regarding Baker's four prudential factors, we believe that whether Israeli settlers are committing genocide is not a jurisdiction-stripping political question. Accordingly, although the question who has sovereignty over the disputed territory does present a "hands-off" political question, the question whether Israeli settlers are committing genocide does not.

The court held that the first question was extricable from the rest of the case, and therefore the lower court could move forward on the second question. (The second question doesn't require resolution of sovereignty over the disputed territories; it only asks whether Israeli settlers are committing genocide in the disputed territories.)

District Court Lets Drone-Strike-List Case Move Forward

Steven D. Schwinn, John Marshall Law School

Judge Rosemary Collyer (D.D.C.) ruled yesterday that a journalist's due process claim against the government for including him on a drone-strike kill list can move forward. Judge Collyer ruled that the journalist had standing, and that his due process challenge did not present a non-justiciable political question.

The ruling in Zaidan v. Trump stands in contrast to other similar cases, and is a significant (though preliminary) victory for the plaintiff.

The case originally involved two journalists who challenged their inclusion on the government's drone-strike kill list. They lodged a series of challenges, including violation of the Administrative Procedure Act (because inclusion violated the government's criteria for inclusion, adopted under President Obama); violations of the EO banning assassinations, the Geneva Conventions, the International Covenant on Civil and Political Rights, and federal law; and violations of due process.

The government moved to dismiss the case for lack of standing and because it raised a non-justiciable political question. The court granted the motion in part and denied it in part.

The court ruled that one of the plaintiffs lacked standing, because he failed sufficiently to allege a harm. The court said that the other plaintiff demonstrated harm (and causation and redressability), but that claims based on the APA, the EO, the Geneva Conventions, the ICCPR, and related federal law all raised a political question. As to the APA claim, the court said that it had no judicially manageable standards for resolving it. The court said that the presidential guidance for inclusion on the kill list didn't provide sufficiently determinate standards for judicial review. (The more vague a government policy, the less likely a plaintiff can challenge it under the APA.) As to the other claims, the court merely said that "the process of determining whether Defendants exceeded their authority or violated any of the statutes referenced in the Complaint would require the Court to make a finding on the propriety of the alleged action, which is prohibited by the political question doctrine."

But as to the due process claim, the court concluded that there was no political-question-doctrine bar to moving forward. The court emphasized that the plaintiff's claim was against his inclusion on the kill list, and not that a drone strike was invalid (which might have raised a political question):

[The plaintiff] does not seek a ruling that a strike by the U.S. military was mistaken or improper. He seeks his birthright instead: a timely assertion of his due process rights under the Constitution to be heard before he might be included on the Kill List and his First Amendment rights to free speech before he might be targeted for lethal action due to his profession.

The ruling does not touch on the merits; it merely allows the due process portion of one plaintiff's case to move forward. Still, getting over the political question doctrine in a case like this is a significant victory for the plaintiff.

D.C. Circuit Tosses Drone Strike Case

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit on Friday dismissed a challenge to the government's drone strike program by the family of unintended, innocent victims. The court ruled that the case raised a political question.

The ruling was unsurprising, given the state of the law. But one judge on the panel concurred in order to lodge a harsh criticism.

The case involves the family members of Salem and Waleed bin Ali Jaber, the unintended, innocent victims of a drone strike in Yemen. They sought a declaratory judgment that the strike violated the Torture Victims Protection Act and the Alien Tort Statute.

The D.C. Circuit upheld a lower court ruling that the case raised a nonjusticiable political question. Drawing on circuit precedent, the El-Shifa case, the court wrote:

It would be difficult to imagine precedent more directly adverse to Plaintiff's position. While Plaintiffs clearly assert claims under the TVPA and ATS, the precise grounds they raise in their Complaint call for a court to pass judgment on the wisdom of [the] Executive's decision to commence military action--mistaken or not--against a foreign target. . . .

Plaintiffs will no doubt find this result unjust, but it stems from constitutional and pragmatic constraints on the Judiciary. In matters of political and military strategy, courts lack the competence necessary to determine whether the use of force was justified.

Judge Brown, who also wrote the majority opinion, concurred with a scathing critique of the application of the political question doctrine to cases like this, especially given the lack of oversight in the other two branches:

Of course, this begs the question: if judges will not check this outsized power, then who will? . . . The President is the most equipped to police his own house. But, despite an impressive number of executive oversight bodies, there is pitifully little oversight within the Executive. Presidents are slow to appoint members to these boards; their operations are shrouded in secrecy; and it often seems the board's are more interested in protecting and excusing the actions of agencies than holding them accountable. Congress perhaps? But congressional oversight is a joke--and a bad one at that. . . .

Our democracy is broken. We must, however, hope that it is not incurably so. . . . The Court's opinion . . . is all a Judiciary bound by precedent and constitutional constraints may permissibly claim. It is up to others to take it from here.

Third Circuit Tosses Election Qualifications Case in Virgin Islands

Steven D. Schwinn, John Marshall Law School

The Third Circuit last week dismissed a case challenging an elected candidate's qualifications for the Virgin Islands legislature. The ruling means that the elected candidate will not be seated.

The case arose when Kevin Rodriguez was elected to serve in the Virgin Islands Legislature. After the election, but before the swearing-in, a rival candidate, Janelle Sarauw, challenged Rodriguez's qualifications to serve, based on Rodriguez's prior representation in a bankruptcy case that he lived in Tennessee. (The VI Revised Organic Act requires that a person serving in the VI legislature reside in the VI for at least three years preceding the date of his or her election.) Sarauw sued in the VI courts and sought an injunction compelling the Board of Elections to de-certify Rodriguez as a qualified candidate, thus preventing him from taking a seat in the 32nd Legislature. (The Board, an independently elected body outside the legislature and judiciary, has authority under the ROA to determine qualifications of candidates before swearing in.)

While that case was moving up and down the VI courts, the 32nd Legislature was sworn in (without Rodriguez, because the courts were still working out how to deal with his qualification). Rodriguez then removed the case to federal court (remember, this is all federal law, including the ROA, because of the VI's status in relation to the US), asking for an injunction directing the 32nd Legislature to seat him.

The Third Circuit tossed the case. The court ruled that the courts lacked authority to rule a candidate qualified after the swearing in, because the ROA says that the legislature shall have the sole power to determine the qualifications of its members. In other words, the issue was textually committed to a coordinate branch of government--a political question. (The court ruled that the ROA contains separation-of-powers principles, which form the basis of the political question doctrine.) The court noted that separation-of-powers and the ROA would not prohibit the courts from ruling on a candidate's qualifications before swearing in, when the Board has authority to make such a determination, because the separation of powers don't apply to the Board, "a popularly elected and independent entity" that's not a part of the legislative or judicial branches. But Rodriguez only removed his case after the swearing-in, so his case was always a political question.

The court also ruled that the portion of the case brought by Sarauw, the "removed case," was moot, because the legislature had already been sworn in.

Along the way, the governor ordered a special election, and Sarauw won.

Court Punts on President's Authority to Fight ISIS

Steven D. Schwinn, John Marshall Law School

Judge Colleen Kollar-Kotelly today dismissed Smith v. Obama, a case by a service-member challenging President Obama's authority to fight ISIS. The ruling ends the case, with little chance of a successful appeal, and frustrates anyone waiting for a court ruling on whether President Obama can use the AUMF to fight ISIS.

The plaintiff, a U.S. Army Captain, sued President Obama, arguing that neither the 2001 AUMF nor the 2002 AUMF authorized the President to order a military campaign against ISIS (Operation Inherent Resolve), and that the President violated the War Powers Resolution and the Take Care Clause in ordering the campaign.

The plaintiff, a supporter of Operation Inherent Resolve (not an opponent of the campaign, as is more usually the case in these kinds of challenges) who was deployed as part of that campaign, argued that he had standing, because President Obama's orders forced him to choose between two untenable options--following illegal orders (on the one hand) and disobey orders (on the other). The court rejected this claim. The court said that the plaintiff could follow orders without fear of punishment, even if the President acted illegally in ordering the campaign. The court also rejected the plaintiff's oath claim (that he'd violate his oath to protect the constitution by complying with illegal orders), again because he'd face no punishment.

The court went on to rule that the case raised a nonjusticiable political question:

Resolving this dispute would require the Court to determine whether the legal authorizations for the use of military force relied on by President Obama--the 2001 and 2002 AUMFs--in fact authorize the use of force against ISIL. With regard to the 2001 AUMF, the Court would have to determine whether the President is correct that ISIL is among "those nations, organizations, or persons" that "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons," and that Operation Inherent Resolve represents "necessary and appropriate force" against that group. With regard to the 2002 AUMF, the Court would have to determine whether the President is correct that operations against ISIL are "necessary and appropriate in order to . . . defend the national security of the United States against the continuing threat posed by Iraq." For the reasons set out below, the Court finds that these are political questions under the first two Baker factors: the issues raised are primarily ones committed to the political branches of government, and the Court lacks judicially manageable standards, and is otherwise ill-equipped to resolve them.

The belt-and-suspenders ruling (dismissing for lack of standing and political question) seems unnecessary, given that the standing problems alone would seem to comfortably support dismissal. Moreover, the application of the political question doctrine seems at odds with the D.C. Circuit's post-Boumediene habeas cases. The court had something to say about this, in footnote 17:

Those courts were not asked to declare that an ongoing military operation, about which there appears to be no dispute between Congress and the President, was "illegal." They were asked to determine whether an individual should be accorded habeas corpus relief because his detainment had become illegal. This is a far more traditional and appropriate judicial role, which does not raise the same separation of powers issues present in this case.

No Political Question Bar for Abu Ghraib Torture Victims

Steven D. Schwinn, John Marshall Law School

The Fourth Circuit ruled today that victims of torture at the hands of a private military contractor are not barred by the political question doctrine from pressing their case in federal court.

The ruling is a significant victory for the plaintiff-victims and for access to justice in general. It means that some portion of this case (and maybe all of it) can move forward on the merits.

The case arose when former prisoners at Abu Ghraib sued a private military contractor, CACI, for torture and mistreatment under the Alien Tort Statute. After some up-and-down on different issues, the district court ruled that the case raised a non-justiciable political question and dismissed it. In particular, the district court said (1) that CACI was under the control of the military, (2) that the case raised questions of "sensitive judgments made by the military," and (3) that the court lacked judicially manageable standards for resolving the dispute.

The Fourth Circuit reversed and remanded. As to the district court's first two grounds, the Fourth Circuit said that they don't apply when a plaintiff alleges illegal behavior under international law or criminal law. "Accordingly, when a military contractor acts contrary to settled international law or applicable criminal law, the separation of powers rationale underlying the political question doctrine does not shield the contractor's actions from judicial review."

More particularly, as to the first ground (under the control of the military), the Fourth Circuit said that "when a contractor has engaged in unlawful conduct, irrespective of the nature of control exercised by the military, the contractor cannot claim protection under the political question doctrine." The court said that the district court improperly analyzed the under-the-control-of-the-military question and remanded for further consideration of the question of illegal conduct. (The court was quite clear, however, that there was some illegal behavior. The question on remand is just how much.)

As to the second ground (sensitive judgments of the military), the Fourth Circuit again looked to the legality of the conduct: "to the extent that the plaintiffs' claims rest on allegations of unlawful conduct in violation of settled international law or criminal law then applicable to the CACI employees, those claims fall outside the protection of the political question doctrine." The court said that the district court improperly analyzed the sensitive-judgments-of-the-military question and remanded this, too. (Again, the court was quite clear that there was some illegal behavior.)

In short:

Any conduct of the CACI employees that occurred under the actual control of the military or involved sensitive military judgments, and was not unlawful when committed, constituted a protected exercise of discretion under the political question doctrine. Conversely, any acts of the CACI employees that were unlawful when committed, irrespective whether they occurred under actual control of the military, are subject to judicial review. Thus, the plaintiffs' claims are justiciable to the extent that the challenged conduct violated settled international law or the criminal law to which the CACI employees were subject at the time the conduct occurred.

As to the third ground (that the court lacked judicially discoverable and manageable standards for adjudicating the case), the Fourth Circuit said that "torture" and "war crimes" are well defined in the U.S.C. The court said that it may be a hard question, but it's not one that lacks standards. No remand on this question.

In all, under the Fourth Circuit's ruling, some portion of this case (and maybe all of it) can move forward. It all depends on how much CACI behavior was clearly illegal.

District Court Says Drone Strike Case Raises a Political Question

Steven D. Schwinn, John Marshall Law School

Judge Ellen Segal Huvelle (D.D.C.) dismissed a complaint by the estates of two persons killed in a drone strike in Yemen. Judge Huvelle ruled that the complaint, which sought a declaration that the strike violated the Torture Victim Protection Act and customary international law, raised a non-justiciable political question.

The case, Bin Ali Jaber v. U.S., grew out of a drone strike that killed five individuals in Yemen. The estates of two of the victims sued, seeking a declaration that the U.S. violated the TVPA and international law. The government moved to dismiss the case as a non-justiciable political question.

Judge Huvelle granted the motion. She wrote that the court lacked judicially manageable standards for judging the legality of a drone strike, and that the decision to order the strike was a "policy determination of a kind clearly for nonjudicial discretion."

Judge Huvelle distinguished Comm. of U.S. Citizens Living in Nicaragua v. Reagan and Al-Aulaqi v. Panetta--cases in which the courts held that tort claims arising from foreign policy decisions were justiciable--because the plaintiffs in those cases raised constitutional claims. "Because the judiciary is the ultimate interpreter of the Constitution, constitutional claims can require a court to decide what would otherwise be a political question, but no such claims have been made here."

Judge Huvelle recognized that her ruling was in tension with Judge Weinstein's decision in In re Agent Orange Product Liability Litigation--with claims "not materially distinguishable from plaintiffs'." But she said, "[O]f course, this Court is bound by the decisions of the D.C. circuit, not the Eastern District of New York."

House Republicans Authorize Suit Against President Obama

Steven D. Schwinn, John Marshall Law School

The House of Representatives voted along party lines this afternoon to authorize a federal lawsuit against President Obama for alleged constitutional overreach in implementation of the Affordable Care Act. 

Here's the resolution, H. Res. 676. 

The case will have several problems right out of the gate, most notably standing.  Here's our last post on the suit, with links to earlier posts.

Muller on Standing and Political Question in Kerr

Derek Muller (Pepperdine) argues over at Jurist.org that the Tenth Circuit dramatically overreached in its recent ruling in Kerr v. Hickenlooper.  Recall that the court ruled in that case that a group of state legislator had standing to challenge under the Guaranty Clause the state's Taxpayer Bill of Rights, or TABOR, which requires a popular vote before the legislature can raise taxes, and that the case did not raise a political question.  We posted here.

Muller says that court's conclusions on both standing and political question are out of step with longstanding Supreme Court jurisprudence and, if upheld, would result in "extraordinary consequences":

It would create many more opportunities for individual legislators in each state--and perhaps those in both houses of Congress--to sue on generalized grounds of political disempowerment, or even compel the executive to act pursuant to legislative demands.  Such would bring about serious judicial inquiries into the validity of the initiative and referendum processes themselves--which has been a large part of most states' governance for the past hundred years.  Moreover, it would focus judicial scrutiny on the manner in which each state governs themselves--effectively ushering in a power shift away from the people--and their ability to enact policy objectives via popular vote--and towards the federal court system.

The Tenth Circuit remanded the case, and the district court is preparing for trial.  We'll surely see this one again.

Court Dismisses Rangel's Censure Case

Judge John D. Bates (D.D.C.) earlier this week dismissed Rep. Charles Rangel's suit against House Speaker John Boehner and others growing out of Rangel's censure in 2010 for a variety of improprieties.

Rangel sued Boehner and others after politico.com posted a memo purportedly written by the chief counsel of the House Ethics Committee.  Rangel argued that that memo undermined the integrity of his censure proceeding--so much so that he had a cause of action.

The defendants moved to dismiss the case, arguing that Rangel lacked standing, the case raised a political question, the defendants enjoyed immunity from suit under the Speech and Debate Clause, Rangel's complaint failed to state a claim upon which relief could be granted, and even if the court had jurisdiction it should exercise its discretion not to reach the merits.

Judge Bates agreed.  He concluded that Rangel lacked standing based on injury to his reputation (causation was too attenuated), his loss of status on the House Ways and Means Committee (again, no causation, because the Democrats lost seats on the Committee after the 2010 election, and it wasn't clear that Rangel's censure caused him to lose a subcommittee seat), the political exploitation of his censure by a primary opponent (because that's not an injury), or a due process injury (again, no injury).

Judge Bates also concluded that Rangel's claims were political questions, and that each defendant is immune under the Speech or Debate Clause.

Judge Sullivan Dismisses Filibuster Challenge

Judge Emmet G. Sullivan (D.D.C.) on Friday dismissed Common Cause v. Biden, the legal challenge to the Senate's filibuster rule.  Recall that Judge Sullivan heard oral arguments in the case earlier this month, and that standing was front and center.  it wasn't surprising then that Judge Sullivan's ruling on Friday turned on standing, and on separation of powers.

The ruling ends the case, unless and until the plaintiffs appeal.  It seems unlikely that the D.C. Circuit would rule differently.  In any event, if the Senate Democrats succeed in reforming the filibuster at the beginning of the next Congress, the case may become moot.

Judge Sullivan ruled that the plaintiffs lacked standing.  As to the House members: he wrote that he was "not persuaded that their alleged injury--vote nullifcation--falls into a narrow exception enunciated by the Supreme Court in Raines v. Byrd."  Op. at 2.  As to the other plaintiffs: they failed to "demonstrate[] that this Court can do anything to remedy the alleged harm they have suffered: the inability to take advantage of the opportunity to benefit from proposed legislation [the DREAM Act] that was never debated, let alone enacted."  Op. at 2.

On separation of powers, Judge Sullivan said that Article I reserves to each House the power to determine its own rules, and there's nothing in the Constitution constraining the Senate from allowing debate to continue absent a super-majority vote.  "[A]bsent a rule's violation of an express constraint in the Constitution or an individual's fundamental rights, the internal proceedings of the Legislative Branch are beyond the jurisdiction of this Court."  Op. at 3.

SDS

Government Moves to Dismiss Targeted Killings Case

The government late last week moved to dismiss Al-Aulaqi v. Panetta, the case for civil damages brought by family members of those killed in the government's targeted killing of Anwar al-Aulaqi.  We covered the complaint here; the ACLU, which represents the plaintiffs, has a case page here.

The government's motion isn't a surprise.  It raises all the expected separation-of-powers arguments, plus a couple others.  As the motion notes, the tide of recent circuit rulings is behind it--at least insofar as several circuits have dismissed similar torture cases against high-level government officials because they raised "special factors" under a Bivens analysis.  That seems the likely result here, too.

This excerpt from the introduction pretty well summarizes the government's position:

But courts have recognized that the political branches, with few exceptions, have both the responsibility for--and the oversight of--the defense of the Nation and the conduct of armed conflict abroad.  The Judiciary rarely interferes in such arenas.  In this case, Plaintiffs ask this Court to take the extraordinary step of substituting its own judgment for that of the Executive.  They further ask this Court to create a novel damages remedy, despite the fact that--based on Plaintiffs' own complaint--their claims are rife with separation-of-powers, national defense, military, intelligence, and diplomatic concerns.  Judicial restraint is particularly appropriate here, where Plaintiffs seek non-statutory damages from the personal resources of some of the highest officials in the U.S. defense and intelligence communities.  Under these weighty circumstances, this Court should follow the well-trodden path the Judiciary--and particularly the D.C. Circuit--have taken in the past and should leave the issues raised by this case to the political branches.

Memo at 1.

More particularly, the government argues that the political question doctrine bars the court from hearing this case; that "special factors" counsel against a judicial remedy under Bivens; and that the defendants enjoy qualified immunity.

The government also argues that the plaintiffs failed to plead that they had capacity to sue as representatives of the killed.  Under Federal Rule of Civil Procedure 17(b), the plaintiffs can act as representatives of an estate only if the law of the jurisdiction where the court sits allows.  Here, the government says that they didn't comply with the requirements of D.C. law.

Finally the government claims that the plaintiffs' bill of attainder claim fails, because the Bill of Attainder Clause doesn't apply to executive actions (it only applies to bills).

Circuits that have ruled on government actor liability for torture have announced the courts closed for this kind of case.  If this recent history is any guide, this case, too, will have a hard time getting off the ground.

SDS

DOJ Moves to Dismiss Fast and Furious Suit

Earlier this week the Justice Department filed its motion to dismiss and supporting memorandum in Committee on Oversight and Government Reform v. Holder.  The motion was expected, and the arguments are not a surprise.

Recall that the Committee brought the case seeking a declaration that the administration's assertion of executive privilege was without merit and that its failure to turn over certain documents to the Committee in its investigation of the "Fast and Furious" program was without justification.  The Committee seeks an order requiring the government to turn over these documents.

Recall also that since the Committee filed its suit, the DOJ Inspector General issued its report into the program and testified before Congress on it.

DOJ argues that the court lacks Article III jurisdiction because the case presents a political question and that separation-of-powers principles counsel against the case moving forward.  In short, DOJ says that the political branches should work this out.  According to the Department, this is especially so with regard to material on internal deliberations regarding the Department's responses to congressional inquiries for substantive material on the program.

DOJ also argued that the court lacks subject matter jurisdiction and that the Committee has no cause of action.  It says that the Committee brought the case under 28 U.S.C. Sec. 1331, but that given the history of that provision and 28 U.S.C. Sec. 1365, the court lacks jurisdiction.  In particular, DOJ argues that Congress enacted 1365, giving the court jurisdiction over Senate subpoena enforcement actions, after Congress was foiled by the old amount-in-controversy in 1331.  (Congress asserted no claim for monetary damages in that case.)  Congress later removed the amount-in-controversy requirement, but DOJ argues that 1365, with its careful language limiting jurisdiction to cases brought by the Senate (not the House), trumps.  (Otherwise 1365 would be a nullity.)  If so, the court lacks jurisdiction over the House Committee's suit.  Morever, DOJ says that the Committee has no cause of action, because the Declaratory Judgment Act contains no independent cause of action (contrary to the D.C. District court's own relatively recent prior ruling in Miers) and because the Constitution grants no independent cause of action.

Now we wait for the Committee's response.

SDS

Suit Seeks Damages for Targeted Killing

The ACLU and the Center for Constitutional Rights filed suit in the D.C. District on behalf of relatives of victims of the government's targeted killing program.  The plaintiffs, parents of Samir Khan and Anwar al-Aulaqi and grandfather of Abdulrahman al-Aulaqi (Anwar's son), seek money damages against high-level government officials for authorizing targeted killings in violations of the Fourth and Fifth Amendments and the Bill of Attainder Clause.

The case comes 19 months after Judge Bates (D.D.C.) dismissed an earlier suit by Anwar al-Aulaqi's father, seeking to stop the government from killing his son in the first place.  Judge Bates ruled that al-Aulaqi's father lacked standing and failed to allege a violation of the Alien Tort Statute, and that the case raised non-justiciable political questions.  (Judge Bates didn't rule on the government's state secrets claim.)

The case also comes on the heels of a couple of dismissed torture suits against high-level officials--Doe v. Rumsfeld (rejected because special factors counseled against a Bivens remedy) and Lebron v. Rumsfeld (same, and cert. denied).

All this is to say that the case faces some hurdles--political question, state secrets, Bivens special factors, and qualified immunity, to name a few.

The plaintiffs in the most recent case argue that the targeted killing were illegal under the laws of war, because the plaintiffs were not engaged in activities that presented a concrete, specific, and imminent threat of death of serious physical injury; because something short of lethal force could have been used to neutralize any threat that they posed; because they were not directly participating in hostilities; because the government failed to take steps to avoid harm to bystanders; and because the killings didn't meet the requirements of distinction and proportionality.

We covered the government's likely justification for targeted killing here, here, here, and here (among other places, linked in these posts).  We still don't have a complete legal justification from the government for the targeted killing program.

SDS