Thursday, October 4, 2018

District Judge Enjoins Termination of TPS Designations

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.

440px-Kirstjen_Nielsen_official_photoAfter reciting specific incidences of animus for several pages, Judge Chen additionally stated that there were departures from the usual procedures which dovetailed with this animus:

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.

[footnote omitted].

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]

October 4, 2018 in Equal Protection, Fifth Amendment, Opinion Analysis, Race, Recent Cases | Permalink | Comments (0)

Friday, September 28, 2018

District Judge Denies Cross-Motions for Summary Judgment in Harvard Affirmative Action Case

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.

360px-Harvard_shield_wreath.svgAfter 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.

September 28, 2018 in Affirmative Action, Equal Protection, Mootness, Race, Recent Cases | Permalink | Comments (0)

Thursday, September 6, 2018

Supreme Court of India Finds Criminalization of "Homosexuality" Unconstitutional

In its unanimous judgment and opinions in Johar v. Union of India, the Supreme Court of India has declared that §377 of the Indian Penal Code, which prohibited "carnal intercourse against the order of nature" is unconstitutional.  The Court overruled the 2013 judgment in Koushal v. NAZ Foundation which we discussed here.

The opinions of the Court, totaling just short of 500 pages, rest the decision on Articles

  • 14 (equality)
  • 15 (prohibition of discrimination, including sex)
  • 19 (protection of speech and association) and
  • 21 (protection of liberty against deprivation without due process)

of the Constitution of India.  The opinions include extensive discussions of cases from other nations and jurisdictions finding that criminalization of same-sex relations is unconstitutional, including Lawrence v. Texas (2003) in the United States, overruling Bowers v. Hardwick (1986).

The opinion by Justice Indu Malhotra (image right) has an interesting passage regarding the opinion's INDUNEWtiming:

History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality. The mis-application of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article 21. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’.

The choice of "history" as being held accountable rather than the Court (and its previous opinion) may be deflective, but it is more of an acknowledgement that the United States Supreme Court gave in Lawrence (and which would have been arguably very appropriate).

[image via]

September 6, 2018 in Fundamental Rights, International, Opinion Analysis, Recent Cases, Sexual Orientation, Sexuality | Permalink | Comments (0)

Saturday, August 4, 2018

Federal Judge Reaffirms Injunction of DACA Rescission

In his opinion in NAACP v. Trump, United States District Judge for the District of Columbia John Bates reaffirmed his earlier decision that the Presidential Order rescinding the DACA program was unlawful. Recall that Judge Bates' decision in April rested on an application of the Administrative Procedure Act (APA) finding that the decision by DHS to rescind DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood, was "arbitrary and capricious" because the Department failed adequately to explain its conclusion that the program was unlawful. Judge Bates stated that "neither the meager legal reasoning nor the assessment of litigation risk provided by DHS to support its rescission decision is sufficient to sustain termination of the DACA program." 

 

Judge Bates stayed the ruling, providing the United States Government 90 days to remedy the inadequacies of its rescission decision. The Government relied on a new Memorandum from Secretary Kirstjen M. Nielsen, but Judge Bates found that while the “Nielsen Memo” 

purports to offer further explanation for DHS’s decision to rescind DACA, it fails to elaborate meaningfully on the agency’s primary rationale for its decision: the judgment that the policy was unlawful and unconstitutional. And while the memo offers several additional “policy” grounds for DACA’s rescission, most of these simply repackage legal arguments previously made, and hence are “insufficiently independent from the agency’s evaluation of DACA’s legality” to preclude judicial review or to support the agency’s decision. Finally, the memo does offer what appears to be one bona fide (albeit logically dubious) policy reason for DACA’s rescission, but this reason was articulated nowhere in DHS’s prior explanation for its decision, and therefore cannot support that decision now.

The "bona fide" but "logically dubious" rationale is a sentence in Secretary Nielsen's Memo that expresses a

judgment that DACA’s benefits—whatever they may be—are outweighed by the fact that, in Secretary Nielsen’s view, the policy encourages noncitizen children and their parents to enter the United States illegally. Of course, this rationale is not without its logical difficulties: after all, DACA is available only to those individuals who have lived in the United States since 2007,  so the “tens of thousands of minor aliens” who Secretary Nielsen asserts have illegally entered the United States “in recent years” would not even be eligible under the program.

Yet for Judge Bates, this is improperly post-hoc and cannot rescue the DACA rescission from being arbitrary and capricious under the APA.

While other judges have reached the constitutional issues ( Recall that in February Judge Nicholas Garaufis of the Eastern District of New York granted a preliminary injunction against the rescission of DACA and also recall that Judge Alsup of the Northern District of California issued a preliminary injunction in January which the government is appealing), Judge Bates explicitly does not, stating that the decision does not hold "that DHS lacks the statutory or constitutional authority to rescind the DACA program," but only if it does so, it must provide a "rational explanation for its decision" under the APA rather than a "conclusory assertion that a prior policy is illegal, accompanied by a hodgepodge of illogical or post hoc policy assertions." 

In an interesting footnote, Judge Bates notes there is an ongoing debates regarding "the propriety of so-called nationwide injunctions," but then states that this "debate is not implicated here" because the court "is vacating an agency action pursuant to the APA, as opposed to enjoining it as a violation of the Constitution or other applicable law. "  Judge Bates did continue the stay of the injunction, however, for an additional 20 days to allow the government to appeal.

August 4, 2018 in Executive Authority, Opinion Analysis, Recent Cases | Permalink | Comments (0)

Thursday, July 26, 2018

Federal Judge Declines to Dismiss Challenges to Citizenship Question on 2020 Census

In an extensive and scholarly opinion in New York v. United States Department of Commerce consolidated with New York Immigration Coalition v. United States Department of Commerce, federal judge Jesse Furman has denied in part motions to dismiss and allowed the case to proceed.

Recall that the United States Commerce Department's announcement that the 2020 Decennial Census Questionnaire will include a citizenship question, which the census has not included since 1950, has provoked several challenges including the one filed in the Southern District of New York, New York v. United States Department of Commerce, raising constitutional objections on behalf of seventeen state plaintiffs, the District of Columbia, as well as six cities and the United States Conference of Mayors. The first count of the complaint is based on the "actual enumeration" requirement and avers that adding a citizenship question will "deter participation." The allegations in the complaint regarding the link between a citizenship demand and lower participation interestingly rely on the Census Bureau's own arguments and findings. The complaint alleges that consequences of lower participation is "an undercount" that will not reflect the accurate population of the plaintiffs, effecting their representation in the House of Representatives and the Electors.  Two additional counts are based on the Administration Procedure Act. 

The New York Immigration Coalition complaint has "five nongovernmental organizations" as plaintiffs, challenging the Secretary’s decision on the same grounds as the states' complaint but importantly on the additional ground of equal protection.

Judge Furman first found that the "government plaintiffs" and well as the "NGO plaintiffs" had standing and then rejected that the lawsuits were political questions barred from judicial review. As Judge Furman concluded:

the Court rejects Defendants’ attempts to insulate Secretary Ross’s decision to reinstate a question about citizenship on the 2020 census from judicial review. Granted, courts must give proper deference to the Secretary, but that does not mean that they lack authority to entertain claims like those pressed here. To the contrary, courts have a critical role to play in reviewing the conduct of the political branches to ensure that the census is conducted in a manner consistent with the Constitution and applicable law.

However, Judge Furman concluded that the Plaintiffs' claims under the Enumeration Clause must be dismissed. For Judge Furman, the constitutional text's broad language combined with a historical practice that has allowed many demographic questions and once included citizenship questions leads to the result that the Secretary has power to include a citizenship query. But as Judge Furman repeatedly emphasized, this does not end the issue. For example, as Judge Furman wrote:

to say that the Secretary has authority under the Enumeration Clauseto ask about citizenship on the census is not to say that the particular exercise of that authority here was constitutional or lawful. The Secretary cannot exercise his authority in a manner that would violate individual constitutional rights, such as the right to equal protection of the laws. [citations omitted]. Nor, under the APA, may he exercise his authority in a manner that would be “arbitrary” and “capricious.” 5 U.S.C. § 706(2)(A);[citation omitted]. Plaintiffs here make both kinds of claims, and the Court’s holding that the Secretary’s decision was consonant with the Enumeration Clause does not resolve those claims.

In his discussion of the equal protection claim (under the Fifth Amendment's inclusion of equal protection), Judge Furman relegated the animus argument to a footnote stating that it need not be discussed because he found that there was a sufficient claim for a denial of equal protection on the basis of Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997).  Judge Furman concluded that the allegations of discriminatory effect — that inclusion of the citizenship question for all respondents will bear, in the form of diminished political representation and reduced federal funding, more heavily on “Latinos, Asian-Americans, Arab-Americans, and other immigrant communities of color” because the non-response rate is likely to be higher in such communities — were sufficient.

As to the required intent, Judge Furman listed the Arlington Heights factors:

 (1) “[t]he historical background of the decision . . . particularly if it reveals a series of official actions taken for invidious purposes”; (2) “[t]he specific sequence of events leading up the challenged decision”; (3) “[d]epartures from the normal procedural sequence”; (4) “[s]ubstantive departures . . . , particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached”; and (5) “[t]he legislative or administrative history . . . especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.”

and then discussed each one, focusing on departures from normal procedures (which "include overruling career staff who strongly objected to including the citizenship question, failing to extensively test reintroduction of the question, and ignoring the recommendation of the Census Bureau’s advisory committee") and specific statements, including statements of the President. Judge Furman rejected the federal goverment's argument that consideration of such statements was improper after Trump v. Hawaii, writing that the government's invocation of the case "falls somewhere between facile and frivolous," especially given its practice of truncated quotation. Instead, Judge Furman found 

There is nothing in the Court’s opinion [in Trump v. Hawaii] to indicate that its deferential review applies outside of the “national security and foreign affairs context,”  let alone that the Court meant to unsettle decades of equal protection jurisprudence regarding the types of evidence a court may look to in determining a government actor’s intent. In fact, even with its “circumscribed judicial inquiry,” the Hawaii Court itself considered “extrinsic evidence” — namely, President Trump’s own statements.  If anything, therefore, Hawaii cuts against Defendants’ arguments rather than in their favor.

[citations omitted].

Judge Furman thus directed the parties to proceed with discovery, inform the court whether the cases should be consolidated, and whether a trial or summary judgment would be more appropriate.

  Schedule-closeup-l

July 26, 2018 in Elections and Voting, Equal Protection, Fifth Amendment, Fourteenth Amendment, Opinion Analysis, Race, Recent Cases, Standing | Permalink | Comments (0)

Monday, June 25, 2018

SCOTUS Remands Arlene's Flowers on Same-Sex Wedding Refusal

The Court, without opinion, in Arlene's Flowers v. Washington, granted the petition for writ of certiorari, vacated the judgment of the Washington Supreme Court, and remanded the case for consideration in light of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n.

Recall that in 2017 the Washington Supreme Court unanimously upheld the Washington Law Against Discrimination including sexual orientation as applied to a business that refused to provide wedding flowers for a same-sex wedding. Artlene's Flowers had several First Amendment claims and on the Free Exercise claim, the court rejected Arlene's Flowers' argument that the Washington ant-discrimination law was not a neutral one of general applicability and should therefore warrant strict scrutiny.  Instead, the court applied the rational basis standard of Employment Division, Department of Human Resources of Oregon v. Smith, which the Washington anti-discrimination easily passed. 

Philippe_de_Marlier_Nelkenstrauss_in_GlasvaseShortly after the Court's decision in Masterpiece Cakeshop, in which the Court found that the Colorado  Civil Rights Commission’s treatment of the case had "some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his [the cakemaker's] objection," the florist in Arlene's Flowers, Baronnelle Stutzman, filed a Supplemental Brief seeking "at least" remand and alleging:

in ruling against Barronelle, the state trial court—at the urging of Washington’s attorney general—compared Barronelle to a racist “owner of a 7-Eleven store” who had “a policy” of refusing “to serve any black[]” customers. Pet. App. 107a–109a & 108a n.16 (emphasis added). The state, in short, has treated Barronelle with neither tolerance nor respect.

Thus the Washington Supreme Court is now tasked with determining whether there was hostility towards the Arlene's Flowers woner's religion, and if so, applying strict scrutiny.

Relatedly, in a challenge to Arizona's non-discrimination statute by a company, Brush & Nib, that sells "pre-fabricated and design artwork for home décor, weddings, and special events," an Arizona Court of Appeals found that there would be no Free Exercise claim in its opinion in Brush & Nib Studio v. City of Phoenix. Yet because Brush & Nib was a pre-enforcement challenge, the emphasis was on the statute rather than on Brush & Nib's actions.

 

 

June 25, 2018 in Courts and Judging, First Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Recent Cases, Religion, Supreme Court (US) | Permalink | Comments (0)

Tuesday, April 24, 2018

SCOTUS Hears Oral Arguments in Texas Redistricting Case Abbott v. Perez

The United States Supreme Court heard oral arguments in Abbott v. Perez, regarding the constitutionality under the Equal Protection Clause and the validity under the Voting Rights Act of the redistricting plan enacted by the Texas Legislature in 2013.  Recall that in an extensive opinion in August 2017,  the three judge court made detailed findings, one of which was that the Texas legislature engaged on intentional racial discrimination violating the Fourteenth Amendment.

Much of the argument centered on the acts of the Texas legislature in 2013 adopting maps which had previously been found invalid because of racial discrimination. Arguing for Texas, Scott Keller, the Texas Solicitor General, argued that the Texas legislature was entitled to a presumption of good faith and that the "taint" did not carry forward, and Edwin Kneedler, from the United States Solicitor General's Office, likewise stressed that the "taint" should not carry forward. Arguing for various challengers to the redistricting, Max Hicks and Allison Riggs, both stressed the standard of Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997), contending that the taint does not end, and stressing the extensive findings by the three judge court.

The question of how long a discriminatory intent taint persists sometimes seemed as if it was a preview of the next oral argument, that in Hawai'i v. Trump.

Map_of_Texas_1718Yet the oral arguments in Abbott v. Perez were also preoccupied with the "jurisdictional" question; Chief Justice Roberts at several points directed the parties to move to the merits.  This jurisdictional question involves the status of the three judge court order and whether it is actually a reviewable order. Recall that the order was not a preliminary injunction, but instead the court directed the Texas Attorney General to provide a "written advisory within three business days stating whether the Legislature intends to take up redistricting in an effort to cure these violations and, if so, when the matter will be considered." Justice Breyer suggested that the operable "piece of paper" in the case was not a judgment or preliminary injunction, but only a direction to come to court.

While jurisdictional issues are always important to the Court, when the jurisdiction involves appeals as of right from three judge court decisions, the stakes are higher in terms of workload. As Justice Sotomayor asked, what distinguishes this case from the  "millions of others - - - not millions, I'm exaggerating greatly - - - the hundreds of these . . . ." 

 

 

April 24, 2018 in Courts and Judging, Elections and Voting, Equal Protection, Fourteenth Amendment, Oral Argument Analysis, Race, Recent Cases, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0)

Thursday, April 19, 2018

Sixth Circuit Strikes Ohio Statute Defunding Planned Parenthood

In its opinion in Planned Parenthood of Greater Ohio v. Himes, a unanimous Sixth Circuit panel, affirming the district judge, found Ohio 's Revised Code § 3701.034 unconstitutional under the unconstitutional conditions doctrine. The Ohio statute prohibited all funds it receives through six non-abortion-related federal health programs, such as the Violence Against Women Act, from being used to fund any entity that performs or promotes nontherapeutic abortions, or becomes or continues to be an affiliate of any entity that performs or promotes nontherapeutic abortions. The statute was aimed at Planned Parenthood and similar organizations.

The state relied upon cases such as Maher v. Roe and Rust v. Sullivan, but the court's opinion, authored by Judge Helene White, stated:

Plaintiffs do not claim an entitlement to government funds. They acknowledge the government’s right to define the parameters of its own programs, and have complied with all program requirements. What they do claim is a right not to be penalized in the administration of government programs based on protected activity outside the programs.

Instead, Judge White wrote, the correct precedent was Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (AOSI) (2013). Recall that in the "prostitution-pledge" case, the United States Supreme Court held unconstitutional under the First Amendment a provision of a federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work. For the Sixth Circuit, AOSI "reiterated that the government may not require the surrender of constitutional rights as a condition of participating in an unrelated government program." In short,

the government cannot directly prohibit Plaintiffs from providing and advocating for abortion on their own time and dime, [ and thus ] it may not do so by excluding them from government programs for which they otherwise qualify and which have nothing to do with the government’s choice to disfavor abortion.

The Sixth Circuit found that the Ohio statute violated unconstitutional conditions based on constitutional infringements of both the Due Process Clause and the First Amendment. On the due process issue, the court found that the due process right to an abortion was at issue. The court rejected the "importation" of the undue burden standard into this analysis, but also reasoned that even under the undue burden analysis, especially in the United States Supreme Court's most recent abortion ruling in Whole Woman's Health v. Hellerstedt (2016), the statute violated due process.

On the First Amendment claim, relating to the Ohio statute's denial of funds to any organization that promotes abortions, again the Sixth Circuit quoted Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (AOSI): the government does not "have the authority to attach ‘conditions that seek to leverage funding to regulate speech outside the contours of the program itself.’ "

While there is some potential for a circuit split given the Seventh Circuit's opinion in Planned Parenthood of Indiana, Inc. v. Commissioner of Indiana State Department of Health, 699 F.3d 962 (7th Cir. 2012), cert. denied, 569 U.S. 1004 (2013), the Sixth Circuit extensively analyzes the Seventh Circuit's opinion and concludes that because it was decided before Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (AOSI), it is no longer persuasive.

 

April 19, 2018 in Abortion, Due Process (Substantive), First Amendment, Fundamental Rights, Medical Decisions, Opinion Analysis, Recent Cases | Permalink | Comments (0)

Tuesday, April 17, 2018

SCOTUS Finds INA Deportation Provision for "Crime of Violence" Unconstitutionally Vague

In its opinion in Sessions v. Dimaya, the United States Supreme Court held that a portion of the definition of "crime of violence" in 18 U.S.C. §1, as applied in the deportation scheme of the Immigration and Nationality Act,  see 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C), is unconstitutionally vague.

The Court's somewhat fractured opinion concluded that the residual clause, §16(b), which defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense" is unconstitutionally vague.

Justice Kagan's opinion was joined in its entirety by Justices Ginsburg, Breyer, and Sotomayor. Justice Gorsuch joined only Parts I, III, IV–B, and V, thus making these sections the opinion of the Court.

The Court's opinion relied on Johnson v. United States (2015), authored by Justice Scalia, in which the Court found a similar residual clause in the Armed Career Criminal Act (ACCA), defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B) unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause.

The Court in Dimaya ruled that

§16(b) has the same “[t]wo features” that “conspire[d] to make [ACCA’s residual clause] unconstitutionally vague" {in Johnson}.  It too “requires a court to picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that abstraction presents” some not-well-specified-yet-sufficiently- large degree of risk. The result is that §16(b) produces, just as ACCA’s residual clause did, “more unpredictability and arbitrariness than the Due Process Clause tolerates.”

The United States and the dissenting opinions attempted to distinguish the INA provision from the ACCA provision in several ways. Kagan, writing for the Court in Part IV that "each turns out to be the proverbial distinction without a difference." 

34033716420_bd72e5fd56_zGiven Gorsuch's joining with the perceived more liberal-leaning Justices on the Court, his concurring opinion is sure to attract attention.  Gorsuch's substantial opinion (18 textual pages to Kagan's 25 page opinion for the Court and plurality), leans heavily on the foundations of due process, beginning

Vague laws invite arbitrary power. Before the Revolu­tion, the crime of treason in English law was so capa­ciously construed that the mere expression of disfavored opinions could invite transportation or death.

More importantly, Gorsuch disavows any notion that the context of immigration deportation merits any special consideration and that the Court's holding is narrow, stressing that the problem with the statute is the procedural one of failing to provide notice (and standards for judges) rather than the substantive choice by Congress.

Taken together with Johnson, the holding in Dimaya means that statutes must be much more precise when defining a "crime of violence" or risk being held unconstitutionally vague.

[image: caricature of Justice Neil Gorsuch by Donkey Hotey via]

April 17, 2018 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Fifth Amendment, Interpretation, Opinion Analysis, Procedural Due Process, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Wednesday, March 28, 2018

SCOTUS Hears Oral Arguments in Challenge to Maryland's Partisan Gerrymandering

In oral arguments in Benisek v. Lamone, the United States Supreme Court again confronted the the constitutionality of gerrymandering on the basis of political party. Recall that the Court heard arguments earlier in this Term in Gill v. Whitford involving the state of Wisconsin and centering on the Equal Protection Clause challenge. In Benisek, involving Maryland, recall that a divided three judge court denied the motion for preliminary injunction, but with Fourth Circuit Judge Paul Niemeyer arguing that the redistricting of Maryland's Sixth District diluted the votes of Republicans in violation of the First Amendment.

The Benisek argument before the Supreme Court did center the First Amendment, but equal protection doctrine did surface in the context of comparing racial gerrymandering which is analyzed under the Equal Protection Clause. Arguing for Maryland, Steve Sullivan sought to distinguish the two doctrines, with Justice Kagan responding:

JUSTICE KAGAN:  But we would be looking at the same things.  We would be looking at the same kind of direct evidence, the same kind of statements.  We would be looking at the same circumstantial evidence that has to do with where the lines were drawn and how they were drawn.  So it's -- it's all the same kind of evidence, isn't it?

Sullivan sought to distinguish the two doctrines and stated that while there may be similar types of evidence, the Court had not applied "the First Amendment retaliation rubric to that analysis," as the challengers suggested. However, Chief Justice Roberts offered another comparison:

CHIEF JUSTICE ROBERTS: Well, one difference between -- one difference between the race and partisanship is that we've always recognized that a certain degree of partisanship is acceptable.  We've never recognized that a certain degree of racial discrimination is acceptable.

2048px-Maryland_regions_map
The earliest moments of the oral argument offered a possible procedural escape hatch. The three judge court had denied the preliminary injunction and the possibility that any remedy could occur before the 2018 election seemed unlikely.  Moreover, the Justices questioned Michael Kimberly, attorney for the plaintiffs-challengers, regarding the lateness of the challenge, with Chief Justice Roberts asking about the elections that have been held in 2012, 2014, and 2016 before the challenge - - - relevant to the preliminary injunction factor of irreparable harm.

Justice Breyer offered a strategy for determining whether there are manageable standards and if so, what the standard should be.  (Recall that Justice Breyer outlined a several-step possible standard in the oral argument in Gill v. Whitford).  Justice Breyer noted that there are three cases - - - Wisconsin (Gill v. Whitford); Maryland (Benisek); and "the one we are holding, I think, is North Carolina" - - - with different variations. He began by asking the attorney for the challengers what he thought of reargument for the three cases:

JUSTICE BREYER:  * * * * What would you think of taking the three cases and setting them for reargument on the question of standard and there we'd have all three variations in front of us and we would enable people who have an interest in this subject generally to file briefs, and we'd see them all together and they could attack each other's standards or they could support each other's standards or they could attack any standard?  But there we'd have right in front of us the possibilities as -- as -- as thought through by lawyers and others who have an interest in this subject.

****
Winslow_Homer_-_Blackboard_(1877)I raise it because I want to think if there's some harm in doing that that I haven't thought of.  Is there some reason - would it be harmful to somebody? Because I do see an advantage.  You could have a blackboard and have everyone's
 theory on it, and then you'd have the pros and cons and then you'd be able to look at them all and then you'd be able see perhaps different ones for different variations and, you know, that's -- maybe there are different parts of gerrymandering that rises in different circumstances, dah-dah-dah. You see the point.

Later, in a colloquy with the attorney for Maryland, Justice Breyer again surfaced his proposal:

That's why I was thinking you've got to get all these standards lined up together, you know, and you have to have people criticizing each one back and forth and see if any of them really will work or some work in some cases and some work in other cases and it depends on the type you have.I -- I mean, that isn't squarely addressed by the lawyers because they're focused on their one case, et cetera.

Will there be a reargument?  It's difficult to tell.  But if there is, one might expect more than one brief that outlines the possible standards, with their advantages, disadvantages, and possible results in different cases, suitable for a "blackboard."

[image: Winslow Homer, Blackboard, 1877, via

March 28, 2018 in Association, Courts and Judging, Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, Oral Argument Analysis, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Wednesday, March 14, 2018

Federal District Judge: Equal Protection Prohibits Policy Banning Transgender Student from Facilities

In his opinion in M.A.B. v. Board of Education of Talbot County, United States District Judge George Russell, III of the District of Maryland denied the motion to dismiss by the school board of a challenge to its decision to require M.A.B., a transgender boy, to use restrooms and locker rooms for girls.

Judge Russell first found that the school's decision violated Title IX, 20 U.S.C. § 1681(a), entering the murky waters left by the United States Supreme Court's stay and vacation of the Fourth Circuit's decision in G.G. v. Glouster County School Board after the Trump Administration change interpretation of the anti-discrimination policy.

Judge Russell also decided that the school's decision violated the Equal Protection Clause, in an extensive discussion relying upon the developing transgender equal protection doctrine, including the Seventh Circuit's 2017 decision in Whitaker v. Kenosha Unified School District as well as the Eleventh Circuit's decision in Glenn v. Brumby, the only two circuits to have ruled on the issue, and district court cases in the school context such as Evanacho v. Pine-Richland School District and those regarding the transgender military ban such as Doe v. Trump and Stone v. Trump

Judge Russell found that classifications based on transgender status merit intermediate scrutiny for two reasons. First, he found that transgender classifications were tantamount to sex classifications, specifically discussing sex-stereotyping.

Second, he found that "transgender individuals are, at minimum, a quasi-suspect class," under a four-factor test similar to that first articulated in Carolene Products footnote 4:

  • whether the class has been historically “subjected to discrimination;”
  • whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society;"
  • whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group;”  and
  • whether the class is “a minority or politically powerless.” 

FootnoteJudge Russell then analyzed each of these factors, with an interesting reference in a footnote, and found them satisfied, concluding that intermediate scrutiny was appropriate, and quoting the standard as that articulated in United States v. Virginia (VMI). 

While Judge Russell's opinion seemed to cast some doubt on whether the school board's proffered privacy rationale could satisfy the "important" prong, especially as described in VMI, he noted that the procedural posture of the decision was a motion to dismiss. However, even assuming privacy was an important interest, he concluded that the means chosen - - - the banning of the transgender male student from male bathrooms and locker rooms - - - was not substantially related to the privacy interest. Again, Judge Russell quoted Whitaker rejecting the school board's attempt to distinguish it on the basis that locker rooms were not at issue in the Seventh Circuit case and stated that Whitaker's "reasoning applies with similar force."Judge Russell then countered the school board's argument that "if M.A.B. changing clothes in the designated restrooms makes him feel humiliated and embarrassed, as well as alienated from his peers, then students who use those restrooms for greater privacy will feel the same way," with four separate reasons why the argument was flawed. For example, Judge Russell wrote that the school board's argument "overlooks the entire context surrounding the Policy:  "It singles M.A.B. out, quite literally because it does not apply to anyone else at the High School, and marks him as different for being transgender."  On the contrary, Judge Russell wrote, "a boy who makes the personal choice to change clothes in a single-use restroom or stall does not experience any such singling out at the hands of his school."

Judge Russell, however, did not grant M.A.B.'s motion for preliminary injunction, given M.A.B.'s status for the current school year, but "aware that the parties likely hope for a resolution to this case before the following school year," directed "the parties to confer and submit to the Court a joint proposed scheduling order." 

March 14, 2018 in Equal Protection, Fourteenth Amendment, Gender, Opinion Analysis, Recent Cases, Sexuality | Permalink | Comments (0)

Thursday, February 15, 2018

Fourth Circuit En Banc Affirms Injunction Against Trump's Travel Ban 3.0

In its 285 page opinions in IRAP v. Trump, the Fourth Circuit en banc majority has found that the so-called Travel Ban 3.0,  Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of  September 24, 2017, is essentially intended as a Muslim Ban and thus there is a likelihood of success on the merits of the First Amendment Establishment Clause challenge meriting a preliminary injunction. 

The majority is composed of nine judges, with four judges (including a Senior Judge) dissenting. Some judges in the majority also wrote concurring opinions that would also grant relief on the statutory claims.

Recall that in October, Maryland District Judge Theodore Chuang has issued a nationwide injunction against the so-called "Muslim Ban 3.0" in an almost 100 page opinion, shortly after Hawai'i District Judge Derrick Watson had issued a nationwide injunction based largely on statutory grounds, which the Ninth Circuit affirmed. 

Recall also that SCOTUS granted certiorari to the Ninth Circuit's opinion, adding the Establishment Clause issue to the questions to be considered.  Most likely this case will be added to the SCOTUS docket.

The majority opinion by Chief Judge Gregory, after setting out the litigation history and preliminary injunction standard, delves into the Establishment Clause issue. Chief Judge Gregory begins by finding both that there is standing and that the case is ripe.

On the merits, Chief Judge Gregory's opinion first considers whether the proffered reason for the government act is "facially legitimate and bona fide" under Kleindienst v. Mandel (1972). The court assumes without deciding that the reason is facially legitimate, but holds that it is not bona fide:

here the Government’s proffered rationale for the Proclamation lies at odds with the statements of the President himself. Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President. This evidence includes President Trump’s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this “Muslim” ban by targeting “territories” instead of Muslims directly; the issuance of EO-1 and EO-2, addressed only to majority-Muslim nations; and finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but which President Trump and his advisors described as having the same goal as EO-1 and EO-2.

The President’s own words—publicly stating a constitutionally impermissible reason for the Proclamation—distinguish this case from those in which courts have found that the Government had satisfied Mandel’s “bona fide” prong.

Chief Judge Gregory then found that the Travel Ban 3.0 failed the Lemon v. Kurtzman (1971) test which requires the government to show that its challenged action has a primary secular legislative purpose, and then, even if it does that its principal or primary effect neither advances nor inhibits religion and which does not foster ‘an excessive government entanglement with religion. Chief Judge Gregory's majority opinion concludes that Travel Ban 3.0 did not have a primary secular purpose but, like its previous incarnations, was motivated by anti-Muslim bias. Chief Judge Gregory noted the government's argument to disregard the President's pre-election statements was a difficult one to make, but stated it did not need to rely on any campaign statements "because the President’s inauguration did not herald a new day."

Among the incidents Chief Judge Gregory recounts is this one from November 28, 2017 (after the Travel Ban 3.0 September 24, 2017 Proclamation):

President Trump retweeted three disturbing anti-Muslim videos entitled: “Muslim Destroys a Statue of Virgin Mary!” “Islamist mob pushes teenage boy off roof and beats him to death!” and “Muslim migrant beats up Dutch boy on crutches!” The three videos were originally tweeted by an extremist political party whose mission is to oppose “all alien and destructive politic or religious doctrines, including . . . Islam.” When asked about the three videos, President Trump’s deputy press secretary Raj Shah responded by saying that the “President has been talking about these security issues for years now, from the campaign trail to the White House” and “the President has addressed these issues with the travel order that he issued earlier this year and the companion proclamation.” The Government does not—and, indeed, cannot—dispute that the President made these statements.

 Thus, the question of how long a "taint" of impermissible motive should persist was acknowledged and then quickly dispatched: "President Trump could have removed the taint of his prior troubling statements; for a start he could have ceased publicly disparaging Muslims." Moreover, the government initially relied on the months-long agency review to remove the taint, but

chose not to make the review publicly available and so provided a reasonable observer no basis to rely on the review. Perhaps in recognition of this, at oral argument before us the Government expressly disavowed any claim that the review could save the Proclamation. Instead, the Government conceded that the Proclamation rises and falls on its own four corners.

For the majority, then,

The contradiction between what the Proclamation says—that it merely reflects the results of a religion-neutral review—and what it does “raises serious doubts” about the Proclamation’s proffered purpose, and undermines the Government’s argument that its multi-agency review cured any earlier impermissible religious purpose.

Chief Judge Gregory's majority opinion summed up its reasoning:

Our constitutional system creates a strong presumption of legitimacy for presidential action and we often defer to the political branches on issues related to immigration and national security. But the disposition in this case is compelled by the highly unusual facts here. Plaintiffs offer undisputed evidence that the President of the United States has openly and often expressed his desire to ban those of Islamic faith from entering the United States. The Proclamation is thus not only a likely Establishment Clause violation, but also strikes at the basic notion that the government may not act based on “religious animosity.”

Finally, on the scope of the injunction, the majority opinion arguably broadened it:

To the extent that the district court held that IRAP, HIAS, and similar organizations categorically lack a qualifying bona fide relationship with their clients, we conclude that this would be an abuse of discretion. We see no need to read more into the Supreme Court’s grant of a stay than what it held: that refugees with formal assurances do not categorically enjoy a bona fide relationship with a U.S. entity. Instead, IRAP, HIAS, and other organizations that work with refugees or take on clients are subject to the same requirements as all other entities under the Supreme Court’s bona fide relationship standard: a relationship that is “formal, documented, and formed in the ordinary course, rather than for the purpose” of evading the travel restrictions imposed by the Proclamation.

Nevertheless, the Fourth Circuit stayed its decision, in light of the Supreme Court’s order staying the district judge's injunction pending “disposition of the Government’s petition for a writ of certiorari, if such writ is sought."

 

February 15, 2018 in Courts and Judging, Establishment Clause, Executive Authority, First Amendment, Opinion Analysis, Recent Cases, Religion, Supreme Court (US) | Permalink | Comments (0)

Friday, January 19, 2018

SCOTUS to Hear Trump v. Hawai'i on Travel Ban 3.0

The United States Supreme Court has granted the Trump Administration's petition for certiorari to the Ninth Circuit's opinion in Hawai'i v. Trump regarding Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of  September 24, 2017, also known as Travel Ban 3.0, or Muslim Ban 3.0. The Ninth Circuit, affirming a district judge, found Travel Ban 3.0 unlawful under the Immigration and Nationality Act. 

The United States Supreme Court will also be considering the Establishment Clause issue. Recall that the Ninth Circuit did not reach the Establishment Clause issue. However, the United States Supreme Court's grant of certiorari states that the parties are directed to brief and argue Question 3 presented by the opposition brief of Hawai'i.  That question presented is simply phrased: "Whether Proclamation 9645 violates the Establishment Clause."

Recall that the United States Supreme Court previously granted certiorari in Hawai'i v. Trump, as well as IRAP v. Trump from the Fourth Circuit regarding Travel Ban 2.0, but then remanded the cases to be dismissed as moot when that Executive Order was replaced by the current incarnation.

Africa-mapOne important issue in the Establishment Clause litigation is whether the travel ban "targets" a particular religion. Somewhat similarly, an important issue under the Immigration and Nationality Act is whether the travel ban constitutes "nationality discrimination."

These issues have involved consideration of whether the "taint" of statements from candidate Trump and President Trump during the earliest days of the Administration would continue to be viable to this third iteration of the travel ban. It is also likely that much more recent statements allegedly made by the President regarding immigration will be raised.


 

 

 

January 19, 2018 in Executive Authority, Family, First Amendment, Race, Recent Cases, Religion, Supreme Court (US), Travel | Permalink | Comments (0)

Wednesday, January 17, 2018

Daily Read: Was Marbury v. Madison Right? Justice Kennedy Wants to Know

The United States Supreme Court heard oral arguments in Dalmazzi v. United States in which the complicated issue is whether 10 U.S.C. § 973(b)(2)(A)(ii), the so-called dual-officeholding ban, prohibits military officers from holding or exercising the functions of a “civil office” requiring a presidential nomination and Senate confirmation “except as otherwise authorized by law.”  The case is made more complicated by the threshold issue of whether the Court has power to review the case.  Amy Howe has a good discussion of the oral argument on SCOTUSblog.

A notable highlight of the argument was when Justice Kennedy asked ConLawProf Stephen Vladeck, arguing for the petitioners, whether Chief Justice John Marshall was correct in  Marbury v. Madison.

Lossy-page1-762px-Chief_Justice_Marshall_(NYPL_Hades-256630-EM14964).tiffJUSTICE KENNEDY:  Do you think Marbury versus Madison is right?

(Laughter.)

JUSTICE KENNEDY:  Particularly as to the interpretation with such exceptions as Congress may make.

VLADECK: So, I will confess, Justice Kennedy, that I may perhaps belong in the school of scholars who thinks that Chief Justice Marshall read both the statute and the Constitution to reach the constitutional questions he wanted to reach. I'm not sure that he nevertheless didn't end up with the right -- with the wrong answer. And, again, I think, for purposes of the question presented in this case on this Court's jurisdiction, the more relevant case is not Marbury but [Ex Parte] Bollman [1807].

And if I may, Mr. Chief Justice, I'd like to reserve my time.

 

 

ConLawProfs and ConLaw students engaging with Marbury v. Madison could not ask for a more current example of the continuing relevance of the case.  And for enhanced learning, try the CALI Lesson on the case or these ideas.

January 17, 2018 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, Oral Argument Analysis, Profiles in Con Law Teaching, Recent Cases, Supreme Court (US), Teaching Tips | Permalink | Comments (0)

Friday, January 12, 2018

SCOTUS to Hear Texas Redistricting Case

The United States Supreme Court has announced it will hear Abbott v. Perez, a redistricting case decided by a three judge court in Texas.

Recall that the lengthy opinion under both the Equal Protection Clause and the Voting Rights Act included a finding of intentional racial discrimination by the Texas legislature.  The three judge court found that the plaintiffs could demonstrate "either through direct or circumstantial evidence that the government body adopted the electoral scheme with a discriminatory purpose, that the body maintained the scheme with discriminatory purpose, or that the system furthered pre-existing intentional discrimination." 

Texas_counties_map

The addition of Abbott v. Perez to the Court's docket heralds the 2017-2018 Term as a major one for redistricting, adding to the partisan gerrymandering cases of Gill v. Whitford (argued in October) and Benisek v. Lamone, and continuing to confront issues of racial gerrymandering as in last term's cases of Bethune-Hill v. Virginia State Board of Elections and Cooper v. Harris.

 

January 12, 2018 in Elections and Voting, Equal Protection, Fifteenth Amendment, Fourteenth Amendment, Race, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Thursday, January 4, 2018

Second Circuit Finds Denial of Permit to "Wandering Dago" Food Truck Unconstitutional

In its unanimous panel opinion in Wandering Dago, Inc. v. DeSito, the Second Circuit reversed the district court and held that the the denial of a permit to operate a food truck at the Empire State Plaza in Albany violated the First Amendment as well as the Equal Protection Clause. 

Recall from our discussion of the district court's 2016 decision that the issue involved a program in a facility owned by the state of New York and operated by the state Office of General Services (OGS) under Commissioner RoAnn Desito. In the summers of 2013 and 2014, OGS administered "The Empire State Plaza Summer Outdoor Lunch Program," permitting vendors to operate food trucks for limited hours on the plaza, intended to provide "lunch options to the approximately 11,000 State employees who work at Empire State Plaza, as well as for visitors to the Capitol, State Museum, performing arts center" and various monuments and memorials in New York's capital city.

WD Food TruckAs the list of applicants was being processed, the application for "Wandering Dago" attracted attention of OGS employees, one who "recognized the term 'dago' as 'a highly offensive term for Italians,'" and after conducting a "computer search" to determine whether this was true, his conclusion was not only "confirmed" but it was "revealed" that the term has been "used to refer to people of Spanish and Portuguese descent, as well as Italians." OGS denied the application "on the grounds that its name contains an offensive ethnic slur and does not fit with OGS' policy of providing family-friendly policy." Wandering Dago's application the next year was similarly rejected.

The Second Circuit's opinion, authored by Judge Susan Carney, concluded that the case was clearly governed by the United States Supreme Court's recent decision in Matal v. Tam ("The Slants" case) finding that the "disparagement" provision in the trademark statute constituted viewpoint discrimination and failed strict scrutiny.  The district judge's decision was rendered before the Supreme Court's opinion, but she had rejected the applicability of the en banc Federal Circuit's  opinion in  In Re Simon Shiao Tam because she concluded the lunch program was a nonpublic forum.  For the Second Circuit, however, the rejection of Wandering Dago's application based on viewpoint merited strict scrutiny under the First Amendment whether or not that "speech is categorized as commercial speech, speech in a public forum, or speech in a nonpublic forum."

Moreover, the Second Circuit held that the government's rejection of the lunch truck was not shielded by the doctrines of government speech (or government contractor speech).  The district judge had held that the lunch program was "government speech," relying on Walker v. Texas Sons of Confederate Veterans in which the Court found that Texas's program of specialty license plates was government speech and therefore not subject to the First Amendment. The Second Circuit opinion contains a full discussion of the record, but ultimately finds it "implausible" that the public would view the Wandering Dago truck as New York's speech. The Second Circuit again analogized to Matal v Tam, in which the Court rejected a government speech claim.  As in Matal, the United States government did not "dream up" the trademarks, it "merely registered them," and similarly here, the New York Office of Government Services did not "dream up" the food truck's branding.

The Second Circuit applied strict scrutiny, even while noting that New York did not argue it could satisfy the standard, in order to "complete the analytical picture."  Not surprisingly, the court found that the denial of the permit failed strict scrutiny.

More surprisingly, the Second Circuit also reversed the district judge's grant of summary judgment to the government on the Equal Protection Clause claim.  In a brief passage, the court found that there was selective enforcement of the permit scheme with "intent to inhibit or punish the exercise of constitutional rights." This finding rested on New York's granting of permits to other vendors applying to participate in the Lunch Program, including the “Slidin’ Dirty” truck. Thus, the court concluded that Wandering Dago was being discriminated against for its free speech constitutional rights "in branding itself and its products with ethnic slurs."

While it is possible that New York will seek certiorari, it seems more likely that the state will accede to the decision and perhaps change its lunch program to make it less a permit scheme and more a government-sponsored "speech" event.

 

January 4, 2018 in Equal Protection, First Amendment, Food and Drink, Fourteenth Amendment, Opinion Analysis, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Friday, December 22, 2017

Ninth Circuit Finds Presidential Travel Ban 3.0 Unlawful

In the latest installment in the continuing saga of President Trump's various efforts to promulgate a travel ban, often called a Muslim Ban, the Ninth Circuit opinion in Hawai'i v. Trump has largely affirmed the preliminary injunction issued by District Judge Derrick Watson enjoining the Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of September 24, 2017.

Recall that the United States Supreme Court, over the stated disagreement of Justices Ginsburg and Sotomayor, issued a stay of the district judge's opinion earlier this month, as well as a stay in the related proceedings in the Fourth Circuit in IRAP v. Trump. 

The unanimous Ninth Circuit panel does not disturb the status quo: "In light of the Supreme Court’s order staying this injunction pending 'disposition of the Government’s petition for a writ of certiorari, if such writ is sought,' we stay our decision today pending Supreme Court review."   The Ninth Circuit does, however, narrow the district judge's injunction, to "give relief only to those with a credible bona fide relationship with the United States."

On the merits, the Ninth Circuit does not reach the constitutional claims including the Establishment Clause, unlike the Fourth Circuit in IRAP v. Trump, because it finds that the plaintiffs' statutory claims are sufficient to grant relief.

Yet the complex statutory framework of the Immigration and Nationality Act, INA, does implicitly invoke the scope of executive powers.  In short, the Ninth Circuit finds that the Presidential Proclamation’s indefinite entry suspensions constitute nationality discrimination in the issuance of immigrant visas and therefore (in likelihood sufficient for the preliminary injunction) run afoul of 8 U.S.C. § 1152(a)(1)(A)’s prohibition on nationality-based discrimination. As the Ninth Circuit opinion observes:

the Proclamation functions as an executive override of broad swaths of immigration laws that Congress has used its considered judgment to enact. If the Proclamation is—as the Government contends—authorized under [8 U.S.C.] § 1182(f), then § 1182(f) upends the normal functioning of separation of powers. Even Congress is prohibited from enabling “unilateral Presidential action that either repeals or amends parts of duly enacted statutes.” Clinton v. City of New York, 524 U.S. 417, 439 (1998). This is true even when the executive actions respond to issues of “first importance,” issues that potentially place the country’s “Constitution and its survival in peril.” Id. at 449 (Kennedy, J., concurring). In addressing such critical issues, the political branches still do not “have a somewhat free hand to reallocate their own authority,” as the “Constitution’s structure requires a stability which transcends the convenience of the moment” and was crafted in recognition that “[c]oncentration of power in the hands of a single branch is a threat to liberty.” Id. at 449–50.

And the Proclamation’s sweeping assertion of authority is fundamentally legislative in nature. . . .

Recall that a few months ago, after granting certiorari in Hawai'i v. Trump, the United States Supreme Court instructed the Ninth Circuit to dismiss as moot the challenge to Travel Ban 2.0.  It looks as if the Court will now have its chance to consider version 3.o.

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December 22, 2017 in Cases and Case Materials, Congressional Authority, Courts and Judging, Establishment Clause, Executive Authority, First Amendment, International, Opinion Analysis, Race, Recent Cases, Religion | Permalink | Comments (0)

Monday, December 11, 2017

Another District Judge Issues Preliminary Injunction Against Transgender Military Ban

 A third district judge has issued a preliminary injunction against the President's ban on transgender troops in the military.  In her opinion in Karnoski v. Trump, United States District Judge Marsha Pechman of the Western District of Washington issued a preliminary injunction on the basis of the plaintiffs' likelihood to succeed on the merits of their Equal Protection, Due Process, and First Amendment claims.

Recall that after several tweets this past July, embedded President Trump issued a Memorandum for the Secretary of Defense and Secretary of Homeland Security through the Office of the Press Secretary directing the halt of accession of transgender individuals into the military and the halt of all resources "to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex." Recall that in October, United States District Judge for the District of Columbia Colleen Kollar-Kotelly in Doe v. Trump partially enjoined the president's actions denying the motion for preliminary injunction regarding the Sex Reassignment Directive based on a lack of standing and granting the motion for preliminary injunction regarding the Accession and Retention Directives. Recall that in November, United States District Judge Marvin Garvis of the District of Maryland in Stone v. Trump issued a preliminary injunction against the United States military's ban on transgender troops and resources for "sex-reassignment" medical procedures. 

In Karnoski, Judge Pechman finds that the individual plaintiffs, the organizational plaintiffs, and the State of Washington all have standing to challenge the Presidential Memorandum and that the claims are ripe. She does grant the motion to dismiss as to the procedural due process claim.

On the merits, Judge Karnoski's analysis is succinct.  She concludes that the policy "distinguishes on the basis of transgender status, a quasi-suspect classification, and is therefore subject to intermediate scrutiny." She then states that while the government defendants "identify important governmental interest including military effectiveness, unit cohesion, and preservation of military resources, they failed to show that the policy prohibiting transgender individuals from serving openly is related to the achievements of those interests." Indeed, she concludes, the reasons proffered by the President are actually contradicted by the studies, conclusions, and judgment of the military itself," quoting and citing Doe v. Trump.

Departing from the earlier cases, Judge Pechman also finds the plaintiffs have a likelihood of success on a substantive due process claim based on a fundamental liberty interest:

The policy directly interferes with Plaintiffs' ability to define and express their gender identity, and penalizes plaintiffs for exercising their fundamental right to do so openly by depriving them of employment and career opportunities.

On the First Amendment claim, Judge Pechman concludes that the "policy penalizes transgender service members but not others for disclosing their gender identity, and is therefore a content based restriction."

She then quickly finds that on balance, the equities weigh in favor of the preliminary injunction.

With this third court finding the Presidential Memorandum has constitutional deficiencies, the transgender ban is unlikely to go into effect by January 1.  Additionally, the Pentagon has reportedly announced that the ban will not take effect.

 

 

December 11, 2017 in Due Process (Substantive), Equal Protection, Executive Authority, First Amendment, Gender, Opinion Analysis, Recent Cases, Ripeness, Standing | Permalink | Comments (0)

Friday, December 8, 2017

SCOTUS Takes on (Another) Partisan Gerrymandering Case

 Adding to its docket on the issue of partisan gerrymandering, the Court agreed to hear the merits of Benisek v. Lamone, regarding Maryland's redistricting law, decided by a three judge court in August 2017.

Recall that the Court heard oral arguments in Gill v. Whitford on October 3, 2017.  In Gill, arising in Wisconsin, the question of whether partisan gerrymandering is best analyzed under the Equal Protection Clause or under the First Amendment inflected the oral arguments. 

The three judge court opinion in Benisek deciding on the application of a preliminary injunction was divided. A majority of the  found that the case essentially rejected the challengers' arguments, seemingly finding that the claims were not justiable and that they did not have merit, but ultimately resting on a decision that the matter should be not be decided pending the outcome in Gill v. Whitford and thus denying the motion for preliminary injunction.  In an extensive dissenting opinion, Fourth Circuit Judge Paul Niemeyer makes a compelling argument that the redistricting of Maryland's Sixth District by the Democratic leadership diluted the votes of Republicans. Judge Niemeyer advanced a First Amendment standard to redressing unconstitutional partisan gerrymandering as:

 (1) “those responsible for the map redrew the lines of his district with the specific intent to impose a burden on him and similarly situated citizens because of how they voted or the political party with which they were affiliated,”
(2) “the challenged map diluted the votes of the targeted citizens to such a degree that it resulted in a tangible and concrete adverse effect,” and
(3) “the mapmakers’ intent to burden a particular group of voters by reason of their views” was a but-for cause of the “adverse impact.”

Applying that standard, Judge Niemeyer would have found it clearly violated by the Sixth District.

United_States_House_of_Representatives _Maryland_District_6_map

[image via]

While both the majority and Judge Niemeyer's dissent agree that partisan gerrymandering is "noxious" and destructive, the panel clearly divides on what the judiciary can or should do.  For Niemeyer, judicial abdication "would have the most troubling consequences":

If there were no limits on the government’s ability to draw district lines for political purposes, a state might well abandon geographical districts altogether so as to minimize the disfavored party’s effectiveness. In Maryland, where roughly 60% of the voters are Democrats and 40% Republicans, the Democrats could create eight safe congressional districts by assigning to each district six Democrats for every four Republicans, regardless of the voters’ geographical location. In a similar vein, a Republican government faced with these same voters could create a map in which two districts consisted entirely of Democrats, leaving six that would be 53% Republican. Such a paradigm would be strange by any standard. A congressman elected in such a system could have constituents in Baltimore City, others in Garrett County, and yet others in the suburbs of Washington, D.C., preventing him from representing any of his constituents effectively. Similarly, members of a single household could be assigned to different congressional districts, and neighbors would be denied the ability to mobilize politically. Such partisan gerrymandering, at its extreme, would disrupt the “very essence of districting,” which “is to produce a different ... result than would be reached with elections at large, in which the winning party would take 100% of the legislative seats.” [citing Gaffney v. Cummings (1973)].

The role that Benisek will play as an addition to Gill v. Whitford in the Court's consideration of partisan gerrymandering is unclear, but several differences between the cases might be worth noting.  First, Benisek centers the First Amendment analysis rather than the Equal Protection Clause or a combination.  Second, Benisek involves one district within the state rather than the state as a whole.  And third, the redistricting in Maryland involved in Benisek is the Democratic party in power, while the redistricting in Wisconsin in Gill v. Whitford is the Republican party in power.  What, if any, difference these differences may ultimately make - - - and whether the Court will render the decisions of these cases close together - - - remains to be determined.

 

 

December 8, 2017 in Elections and Voting, First Amendment, Opinion Analysis, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Monday, December 4, 2017

Preview of Masterpiece Cakeshop Argument on First Amendment Challenge to Anti-Discrimination Statute

Set for oral argument Tuesday, December 5, 2017, the high visibility case of  Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission can be seen as a clash of constitutional principles of individual conscience vs. equality, or as a federalism case, or as part of the backlash to LGBTQ rights, or as part of the rise of religiously-motivated challenges to secular laws.

Recall that a cake-maker seeks the right to refuse to make a cake for a same-sex wedding, asserting an exemption from Colorado's anti-discrimination law on the basis of the First Amendment's Free Speech and Free Exercise Clauses. In the state proceedings, the Colorado Administrative Law Judge (ALJ) rejected the contention that "preparing a wedding cake is necessarily a medium of expression amounting to protected 'speech,' " or that compelling the treatment of "same-sex and heterosexual couples equally is the equivalent of forcing" adherence to “an ideological point of view.” The ALJ continued that while there "is no doubt that decorating a wedding cake involves considerable skill and artistry," the "finished product does not necessarily qualify as 'speech.'" On the Free Exercise claim, the ALJ rejected the contention that it merited strict scrutiny, noting that the anti-discrimination statute was a neutral law of general applicability and thus should be evaluated under a rational basis test.   A Colorado appellate court affirmed in a lengthy opinion, rejecting the First Amendment claims.

Chocolate_Cake_Flourless_(1)On the First Amendment speech claim, the initial hurdle for the cakemaker is establishing that the cake constitutes speech.  The cakemaker argues that he is a "cake artist." The Court has held that symbolic speech needs to convey a particularized and understood message, Spence v. Washington (1974), but that includes the "unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll," Hurley v. Irish American Gay Group of Boston (1995).  The cakemaker has also argued that the cake itself is so central to the wedding as to be a participant. Thus, the cakemaker as business owner should be able to refuse to make cakes for events with which he disagrees otherwise his speech is being compelled, akin to the landmark flag salute case of West Virginia Bd. of Ed. v. Barnette (1943). 

On the religious claim, the cakemaker essentially argues that the Colorado anti-discrimination law is not a law of neutral and general applicability because it includes sexual orientation as a protected ground and therefore targets (certain) religions, and thus strict scrutiny applies.

On both claims, the oral arguments will most likely include explorations of the slippery slopes.  If the cake is art, then what about restaurant dinners? Photography? Bed and breakfasts?  If the cake is akin to a participant in the wedding celebration, then would the rule extend to birthdays? And can the exemption for individual conscience be limited to sexual orientation?  What about race? Ethnicity or national origin? Gender?

There are a little less than 50 amicus briefs on each side.  The Court has allowed the Solicitor General of the United States to participate in oral argument on the side of the cakemaker, and for the respondents (the Colorado Civil Rights Commission and the original would-be customers) to both participate.

The case has attracted extensive commentary (here's a good round-up by Edith Roberts on SCOTUSBlog) and there is certainly much more to come.

December 4, 2017 in Courts and Judging, Family, Federalism, First Amendment, Food and Drink, Recent Cases, Religion, Speech, Supreme Court (US) | Permalink | Comments (0)