Thursday, May 6, 2021
The Eleventh Circuit ruled that a plaintiff had standing to sue for monetary damages for a "stigmatic injury" after a municipality failed to add captions to its online videos in violation of the ADA.
One of the panel judges, Judge Newsom, used the routine standing case to write a very un-routine concurrence (starting on page 11), lodging a frontal assault on the injury-in-fact requirement for standing and arguing for an "Article II approach." Here's the gist:
First, in my view, a "Case" exists within the meaning of Article III, and a plaintiff thus has what we have come to call "standing," whenever he has a legally cognizable cause of action, regardless of whether he can show a separate, stand-alone factual injury. Second, however--and it's a considerable "however"--Article II's vesting of the "executive Power" in the President and his subordinates prevents Congress from empowering private plaintiffs to sue for wrongs done to society in general or to seek remedies that accrue to the public at large.
Judge Dabney L. Friedrich (D.D.C.) ruled that the CDC lacked authority to issue its nationwide eviction moratorium. At least six other federal courts have ruled on the moratorium; all but two have halted it.
The court ruled that while the agency has some authority under the Public Health Service Act to prevent the spread of communicable diseases, it doesn't have the authority to issue a moratorium on evictions. The court said that an eviction moratorium isn't "similar in nature to" the list of examples of the kinds of actions the CDC may take under the Act.
The court rejected the government's argument that Congress ratified the eviction moratorium, and the CDC's authority to implement it under the Public Health Service Act, in the Consolidated Appropriations Act. The court noted that while the Consolidated Appropriation Act extended the moratorium until January 31, 2021, it said that Congress didn't specifically ratify the CDC's reading of the Public Health Service Act as authorizing the agency to implement the moratorium. It held that "[b]ecause Congress withdrew its support for the CDC Order on January 31, 2021, the order now stands--and falls--on the text of the Public Health Service Act alone." And, as above, that's not enough, according to the court.
The court wholly vacated the moratorium, not, as the government argued, only as to the plaintiffs in this case.
Wednesday, May 5, 2021
Judge Amy Berman Jackson (D.D.C.) ordered the Justice Department to release a memo that contains advice to former Attorney General Barr on his infamous four-page summary of the Mueller Report and his conclusion that evidence in the report didn't support an obstruction-of-justice case against former President Trump. Judge Jackson gave DOJ until May 17 to comply and release the memo, or to file a motion to stay pending appeal.
The case, Citizens for Responsibility and Ethics in Washington v. U.S. DOJ, arose when CREW filed a FOIA request for any records related to consultations between former AG Barr and DOJ's Office of Legal Counsel related to his four-page summary of the Mueller Report and his conclusion that the report didn't contain sufficient evidence to charge Trump. Barr mentioned that he had consulted with OLC in relation to his four-page letter, and his conclusion that its evidence "is not sufficient to establish that the President committed an obstruction-of-justice offense," when he later testified before Congress. (Recall that Barr purported to summarize the Mueller Report in this widely panned letter before the Report's public release. The letter misleadingly said that the Special Counsel "did not draw a conclusion--one way or the other--as to whether" former President Trump committed obstruction of justice. Barr concluded that the Report didn't contain sufficient evidence to charge Trump with obstruction.)
DOJ argued that the OLC advice was protected under FOIA Exemption 5 and the deliberative process and attorney-client privileges. Judge Jackson rejected those claims.
In short, based on an in camera review of the documents, the court recognized that Department officials wrote Barr's four-page letter before and during the time when it wrote the OLC memo. In other words, the OLC memo couldn't have been part of deliberations leading to Barr's letter, and it couldn't have provided legal advice related to Barr's letter, because Department officials drafted the letter before and simultaneously with Barr's letter. To put the finest point on it: the AG and DOJ already decided not to prosecute former President Trump before the Department wrote the OLC memo.
The court sharply criticized Barr and Department officials who provided affidavits, given that the plain evidence contradicted their claims. Here's just a flavor, on the court's analysis of the deliberative process privilege:
And of even greater importance to this decision, the affidavits are so inconsistent with evidence in the record, they are not worthy of credence. The review of the unredacted document in camera reveals that the suspicions voiced by the judge in EPIC and the plaintiffs here was well-founded, and that not only was the Attorney General being disingenuous then, but DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege. The agency's redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the excised portions belie the notion that it fell to the Attorney General to make a prosecution decision or that any such decision was on the table at any time.
The ruling gives the DOJ until May 17 to comply and release the memo, or to appeal.
Tuesday, April 13, 2021
The D.C. Circuit ruled on Friday that a private party can't challenge an Federal Election Commission decision not to enforce election law if the decision was based in any measure on agency discretion. The ruling effectively gives commissioners who successfully oppose enforcement action a get-out-of-judicial-review card simply by invoking discretion as any part of their explanation for not enforcing the law. The ruling also adds to the structural features that have paralyzed the FEC. (The FEC is comprised of six commissions, no more than three of either major political party. But it requires four votes to initiate an enforcement action. Partisan deadlock and quorum issues have created an impotent agency. This ruling only adds to those features, because it allows commissioners who vote against enforcement to insulate their decision simply by mentioning "discretion.")
The case, CREW v. FEC, arose when CREW sued the FEC for deciding not to enforce election law against New Models, a now-defunct non-profit. CREW filed a complaint against New Models for failing to comply with FECA's registration and reporting requirements for "political committees." But the FEC, by a 2-2 vote, decided not to pursue an investigation. The two commissioners who voted against an investigation wrote a 31-page, single-spaced opinion explaining their legal reasons why New Models wasn't a "political committee" under FECA. They added a final sentence, "For these reasons, and in exercise of our prosecutorial discretion, we voted against finding reason to believe that New Models violated the Act . . . ." (The commissioners dropped a footnote to their reference to "prosecutorial discretion" with a brief explanation: "Given the age of the activity and the fact that the organization appears no longer active, proceeding further would not be an appropriate use of Commission resources.")
CREW sued under FECA's provision that authorizes a private suit to challenge an FEC nonenforcement decision if it is "contrary to law." The D.C. Circuit ruled that the court couldn't review the decision, though, because it was "based even in part on prosecutorial discretion."
The court said that the ruling was a simple application of its previous ruling in Commission on Hope. In that case, the court said that under Heckler v. Chaney it couldn't review an FEC nonenforcement decision based on agency discretion. (Discretion formed a much more significant portion of the justification for nonenforcement in Commission on Hope, however.) It also said that FECA doesn't contain any standards for a court to judge an FEC decision based on discretion.
Judge Millett wrote a lengthy dissent, arguing that "the majority opinion creates an easy and automatic 'get out of judicial review free' card for the Federal Election Commission."
Wednesday, March 31, 2021
U.S. Capitol Police Officers James Blassingame and Sidney Hemby sued former President Trump on Tuesday for inciting the January 6 insurrection. The complaint alleges a variety of torts and seeks compensatory and punitive damages.
Representative Bennie Thompson and Representative Eric Swalwell previously filed their own separate complaints against Trump and others, alleging civil-rights violations, a variety of torts, and interference with Congress's count of the electoral college votes.
Whatever other defenses Trump and other defendants may seek to assert, the president's official immunity is unlikely to work. Under Nixon v. Fitzgerald, a president is absolutely immune for civil damages for acts within the "outer perimeter" of the president's official responsibility. But allegations in all three complaints--not to mention the public record--put Trump's actions well outside this "outer perimeter." And the Thompson and Swalwell complaints specifically allege that Trump was acting in his personal capacity (not his official capacity) and for his personal benefit (and not in aid of the president's "constitutional office and functions").
Wednesday, January 13, 2021
Here's a short Q&A on some of the questions surrounding congressional efforts to impeach and disqualify President Trump. (I previously posted a primer on constitutional issues related to last week's insurgency.)
Can the House impeach President Trump again?
Yes. Recall that the House impeached President Trump just last year--for abusing power by pressuring the Ukrainian president to dig up dirt on Joe Biden to boost Trump's chances of reelection, and for obstructing the House investigation into the matter. Still, there's nothing prohibiting the House from impeaching President Trump again. (The House has only impeached two other presidents in our history, Andrew Johnson and Bill Clinton. It only impeached them once. But nothing prohibits a second impeachment.)
What happens if the House impeaches?
Alone, nothing. Remember that impeachment is a two-step process: impeachment in the House, and conviction in the Senate. Impeachment in the House requires a bare majority; conviction in the Senate requires a 2/3 vote. "Impeachment" requires both actions. So a House impeachment alone does nothing . . . except record for history that the House voted that the president committed impeachable offenses. Removal from office and disqualification from future office (see below) require the action of both chambers.
What happens if both chambers act?
Two things could happen. First, Congress (again, upon impeachment by the House and conviction in the Senate) could remove the president from office. That only happens, of course, if the president is still in office. So removal would only follow if Congress acted before President Trump's term ends.
Second, Congress can disqualify the president from holding office in the future. Under past congressional practice, this takes a bare majority in both chambers (and not the 2/3 super-majority in the Senate that's required for removal). (The Constitution itself isn't clear on the vote required for disqualification. But when the Constitution isn't clear, and there's no judicial precedent, we often look to past practice to discern the meaning. Past practice on disqualification says that Congress can disqualify with a bare majority vote in both houses.)
Finally, if both chambers act, Congress sets a precedent that behavior like President Trump's is impeachable, and cause for removal and disqualification. Because of the important role that history and practice play in our constitutional tradition, this kind of precedent would be significant, and could influence the future practices of both the President and Congress.
Can Congress impeach the President after his term ends?
Probably yes. The Constitution doesn't explicitly answer this question. But the House has twice impeached officials after they left office--once in 1797 (a Senator, after he was expelled), and once in 1876 (the Secretary of War, after he left office). These precedents are a good indication that Congress could impeach President Trump after he leaves office. (Again: past practice is a good indicator of meaning when the text is silent or ambiguous, and when there's no judicial precedent.) Moreover, as a practical matter, it only makes sense that Congress could impeach an officer after the officer leaves office. Otherwise, an officer could escape removal by resigning, or committing an impeachable offense near the end of the officer's term; and the officer could entirely escape disqualification (because a vote on disqualification often occurs only after an officer leaves office).
On the other hand, some argue that Congress can only impeach a sitting officer, in short, because only a sitting officer can be removed from office.
Can President Trump pardon himself out of impeachment?
No. The pardon power does not extend to impeachments.
Moreover, President Trump probably cannot pardon himself. (The Constitution doesn't say, and there's some disagreement on this. But the Justice Department has long held the view that the president cannot pardon him- or herself, based on the background constitutional principle that no person should be a judge in their own case.)
Can President Trump sue to stop or undo an impeachment?
No. The Supreme Court has ruled that impeachments are "non-justiciable." It said that the impeachment power belongs exclusively to Congress, and that the courts lack authority to second-guess congressional judgments about impeachment and its processes.
Can Congress disqualify President Trump from future office in some other way?
Yes. The 14th Amendment, Sections 3, says that any person who "engaged in insurrection or rebellion" is disqualified from holding federal and state offices, including the presidency. This would require a bare majority vote in both houses, and Congress could disqualify President Trump under the 14th Amendment after he leaves office. (Note that the current House articles of impeachment reference 14th Amendment disqualification.)
Vice President Mike Pence wrote to House Speaker Nancy Pelosi late yesterday declining to invoke the 25th Amendment against President Trump, writing that he does "not believe that such a course of action is in the best interest of our Nation or consistent with our Constitution."
As to why invocation of the 25th Amendment was not "consistent with our Constitution," Pence wrote,
As you know full well, the 25th Amendment was designed to address Presidential incapacity or disability. . . . Under our Constitution, the 25th Amendment is not a means of punishment or usurpation. Invoking the 25th Amendment in such a manner would set a terrible precedent.
He went on to argue that it'd be a bad idea, too, writing that "now is the time for us to come together, now is the time to heal."
For more on the 25th Amendment, check out this Congressional Research Service report.
Friday, January 8, 2021
Here's a short Q&A on some of the more common constitutional questions related to Wednesday's insurgency:
The Twenty-Fifth Amendment
What is it?
Section 4 of the Twenty-Fifth Amendment provides a four-step process for determining when a President "is unable to discharge the powers and duties of . . . office . . . ." Section 4 comes into play when a sitting President cannot or will not determine for him- or herself that he or she is so unable. (Section 3 provides the process for a President to make this determination for him- or herself, e.g., to temporarily designate him- or herself as unable to discharge the duties when he or she goes in for a medical procedure that may render the President temporarily unable to do the job.) If successful, a Section 4 process would make the Vice President the "Acting President."
How does it work?
Section 4 has four steps:
Step 1: The VP and a majority of the principal officers of the executive departments (the cabinet) send a written declaration of inability to the President Pro Tem of the Senate and the Speaker of the House. (There are 15 executive departments, so a majority is 8. Section 4 alternatively allows "such other body as Congress may by law provide" to serve this role. But there's currently no "such other body.") When this happens, the VP automatically becomes Acting President and assumes the powers of the presidency.
Step 2: The President may then send a letter to these congressional leaders stating that he or she has no disability--in other words, contesting the judgment of the VP and the cabinet. Note that the President isn't required to do this. If the President doesn't do it, the VP continues as Acting President. There's no time limit for the President to submit this transmission.
Step 3: The VP and a majority of the principal officers of the executive departments can send another transmission to the congressional leaders, but must do so within four days of the President's transmission. If so, then the VP remains Acting President. (There is some disagreement about who would have the powers of the presidency during the period between the President's transmission and the VP/cabinet's re-submission. There is good textual and historical evidence that the VP would remain Acting President during this period.)
Step 4: Congress shall assemble within 48 hours to decide the issue; it must make a decision within 21 days (of receipt of the last transmission (in Step 3), or, if not in session, after it's required to assemble). If Congress votes by 2/3 in each chamber that the President is unable to discharge the duties of office, then the VP remains Acting President. "[O]therwise, the President shall resume the powers and duties of his office."
What does it mean for President Trump?
If the VP and cabinet activate Section 4, VP Pence is likely to become the Acting President for the rest of President Trump's term, no matter what President Trump does. That's because the VP would become Acting President after Step 1, and because the VP and the cabinet would almost certainly complete Step 3 (having already committed to Step 1). At that point, Congress has a full 21 days--days in which the VP would be Acting President--which would carry us beyond January 20, the date of President-Elect Biden's inauguration. (Congress could easily drag its feet and avoid a vote until after January 20.)
Here's a fantastic Congressional Research Service report on the Twenty-Fifth Amendment.
What is it?
Impeachment is a two-step process by which Congress can remove a sitting President from office and ban the President from holding future office. According to the Congressional Research Service, "[i]t appears that federal officials who have resigned have still been thought to be susceptible to impeachment and a ban on holding future office." A pardon doesn't work on impeachment. An impeached individual could also be subject to criminal liability.
How does it work?
Impeachment is a two-step process:
Step 1: The House votes to impeach. This requires only a bare majority.
Step 2: The Senate then holds a trial and votes to convict. Removal from office requires a 2/3 vote. But under Senate practice, a bare majority could vote to prevent the President from holding future office.
What does it mean for President Trump?
Congress could remove President Trump from office, or ban him from holding office in the future, or both. Congress could ban President Trump from holding future office, even if he resigns from office first. Congress could dispense with its ordinary impeachment procedures (which take a longer time) and move very quickly, even before January 20. That's because impeachment proceedings are non-justiciable (the courts won't hear challenges to them), and President Trump therefore couldn't challenge an impeachment process in court.
Here's an excellent Congressional Research Service Report on impeachment.
President Trump is free to resign from office at any time. There are no restrictions on this. If he resigns, under Section 1 of the Twenty-Fifth Amendment, "the Vice President shall become President."
What is it?
The President has the power to pardon individuals for federal (but not state) crimes. But the President can pardon for crimes arising from past behavior only; the President cannot pardon for future acts. (But by pardoning for past behavior, the President can insulate individuals from future indictments or convictions.) The pardon power is probably not reviewable in the courts, although an improper exercise of the pardon power could be an impeachable offense.
The Justice Department has long held that a President cannot pardon him- or herself. (The OLC memo is here.) But we've never faced that situation, and we have no court rulings.
There's a question as to whether the President can issue a blanket pardon, or whether the President must identify the specific criminal behavior. This has never been tested.
What does it mean for President Trump?
President Trump cannot pardon himself. If he tries--and attempts to use his self-pardon as a defense in a future federal prosecution--he will likely fail. But President Trump could resign from office, or delegate authority to the VP, and VP Pence (as Acting President) could pardon him. (See the discussion on the Twenty-Fifth Amendment, above.)
VP Pence could not pardon President Trump for state crimes. The pardon power only works for federal offenses.
What is it?
The President enjoys certain immunities from the law by virtue of the President's unique position in our constitutional system. For example, the President is absolutely immune from civil liability for official actions. But the President is not immune from civil lawsuits for behavior prior to coming to office.
The Justice Department has long held that a sitting President is immune from federal criminal prosecution while in office. This is not uncontroversial, however, and it's never been tested. At the same time, DOJ has also long held that a President is not immune from federal criminal prosecution after the President leaves office. (Here's the most recent DOJ/OLC memo on this.)
The Supreme Court ruled just this past summer that a sitting President is not absolutely immune from all state criminal processes. President Trump is not immune from state criminal investigations and more, and he will enjoy no immunity from state criminal indictments or convictions when he leaves office.
What does it mean for President Trump?
President Trump is subject to federal and state criminal indictment and conviction for behavior while in office when he leaves office, and maybe sooner. Traditionally, the DOJ has not pursued criminal charges against a former President. But the Constitution does not forbid this.
A pardon, of course, would insulate President Trump from future federal criminal prosecution.
Wednesday, December 30, 2020
The D.C. Circuit ruled this week that members of a House committee have standing to sue to enforce their statutory right to obtain information from executive agencies, in this case the General Services Administration.
The ruling means that the plaintiff-House members can pursue their claim to get the information, but it does not say that they'll win. In any event, the case is likely to become moot under President Biden, when the administration seems much more likely to comply with the request. (The ruling is likely to embolden minority Republican House members to ask for information from the Biden Administration.)
The case, Maloney v. Murphy, arose when Democratic members of the House Oversight Committee, then in a minority, sought information from the GSA related to the Agency's lease with a Trump corporation for the Old Post Office. The members invoked 5 U.S.C. Sec. 2954, which authorizes seven members of the House Oversight Committee or five members of the Senate Homeland Security and Governmental Affairs Committee to request and obtain information from any executive agency. The statute functionally allows a minority group of lawmakers on those committees to obtain information from an executive agency, even if the full committee does not seek that same information.
GSA balked, and the members sued. The district court granted the GSA's motion to dismiss for lack of standing, but the D.C. Circuit reversed.
The court said that the plaintiffs suffered a cognizable informational injury--that the GSA deprived them of information to which they were entitled, and that their lawsuit would redress that injury.
The court went on to say that the injury was "personal," and not "institutional," and therefore the individual lawmakers had standing. (A personal injury is a direct harm to a person, or in this case a lawmaker; the harmed individual, even if a lawmaker, has standing to sue. An institutional injury, in contract, is a generalized harm to the institution, in this case the Committee; the Committee would have standing, but not an individual lawmaker.) The court explained:
The Requestors do not assert an injury to institutional powers of functions that "damages all Members of Congress and both Houses of Congress equally." The injury they claim--the denial of information to which they as individual legislators are statutorily entitled--befell them and only them. Section 2954 vested them specifically and particularly with the right to obtain information. The 34 other members of the Committee who never sought the information suffered no deprivation when it was withheld. Neither did the nearly 400 other Members of the House who were not on the Committee suffer any informational injury. Nor was the House (or Senate) itself harmed because the statutory right does not belong to those institutions.
Judge Ginsburg dissented:
The Plaintiff-Members here allege harm to the House rather than to themselves personally. Their theory of injury is that the General Services Administration (GSA), by refusing their request for certain documents, hindered their efforts to oversee the Executive and potentially to pass remedial legislation. The Complaint is clear and consistent on this point: The Plaintiff-Members were harmed through the "impedance of the oversight and legislative responsibilities that have been delegated to them by Congress . . . ."
Friday, December 18, 2020
The Supreme Court ruled today that the case challenging President Trump's plan to report reapportionment numbers to Congress without accounting for unauthorized aliens was not ripe for judicial review and that the plaintiffs lacked standing to challenge the plan. The Court said nothing about the merits of the case, although its practical effect allows the President to move forward.
The ruling means that the Commerce Secretary can go ahead and report the numbers of unauthorized aliens along with a total head-count to the President, and that the President can go ahead and report apportionment numbers to Congress based on total numbers minus unauthorized aliens.
This is unprecedented. Apportionment has never discounted for unauthorized aliens.
At the same time, it's not at all clear as a practical matter if or how the President will be able to implement this. And even if he does, the plaintiffs can come back and sue later, when they may meet a more friendly Court. (Justices Kavanaugh and Barrett seemed sympathetic to the plaintiffs' arguments during oral argument on the case. They could join Justices Breyer, Sotomayor, and Kagan to rule against the President.)
The case arose when President Trump issued a memo this summer directing the Secretary of Commerce to report two sets of numbers to the President: (1) a raw census total head count; and (2) the number of unauthorized aliens in the country. President Trump wrote that he'd certify apportionment numbers to Congress based on the total head count minus the number of unauthorized aliens in the country.
This would cause some states (with large populations of unauthorized aliens) to lose representation in Congress. It could also allow some states and local jurisdictions to lose vast amounts of federal funds, which are tied to census numbers.
Some of those states sued, arguing that President Trump's memo violated the Constitution and federal law, both of which mandate apportionment based on "the whole number of persons in each State, excluding Indians not taxed."
The Court ruled that the plaintiffs lacked standing, and that the case wasn't ripe for judicial review. In an unsigned opinion, six justices ruled that the plaintiffs' claimed harms--loss of representation and federal funds--weren't certain enough to justify judicial intervention. "At present, this case is riddled with contingencies and speculation that impede judicial review." The Court noted that the President's memo was contingent ("to the extent practicable," for example), and that it's not even clear that the Secretary can compile the data by the statutory deadline. Moreover, it noted that federal funds may not even be affected: "According to the Government, federal funds are tied to data derived from the census, but not necessarily to the apportionment counts addressed by the memorandum."
Justice Breyer wrote a sharp and lengthy dissent, joined by Justices Sotomayor and Kagan. He argued that the plaintiffs had standing and that the case was ripe for review under settled Court precedent, and that the President's memo violated the Constitution and federal law.
Saturday, December 12, 2020
The Supreme Court on Friday dismissed Texas's challenge to election results in Georgia, Pennsylvania, Michigan, and Wisconsin for lack of standing. The brief order simply read,
The State of Texas's motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.
Texas argued that it asserted two harms sufficient to satisfy standing: (1) its citizens were harmed in their votes for president by other states' failures to comply with the Elections Clause; and (2) Texas itself was harmed in its role (as a state) in the Senate, where the vice president could break a tie.
The Court's ruling rejects those theories. It did not say anything about the Elections Clause, however.
Justice Alito filed a statement, joined by Justice Thomas, reiterating their view that the Court lacked "discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction."
The ruling ends this challenge. But Trump supporters have already indicated that they'll seek to file similar challenges on behalf of individual voters in these states.
Friday, December 11, 2020
The Supreme Court ruled this week that a Delaware attorney lacked standing to challenge the state's political balancing requirements for seats on its courts. The ruling means that the Court didn't address the underlying merits question, whether the balancing requirements violate the First Amendment. It also didn't break any significant new ground on standing.
The case, Carney v. Adams, involved Delaware's two political balancing requirements for its courts, the "bare majority" requirement and the "major party" requirement. The bare majority requirement says that no more than a bare majority of judges on any of the state's five major courts "shall be of the same political party." The major party requirement says that judges not in the majority on three of the state's courts "shall be of the other major political party."
Delaware attorney James Adams sued, arguing that the provisions violated his First Amendment right to free association. There was just one problem: Adams failed to show that he was harmed by the two requirements. He hadn't applied for a judgeship and been rejected, and he hadn't even stated a determinate intent to apply for a particular judgeship for which he wouldn't qualify; he only said that he'd like to apply for a judgeship at some undefined point in the future--and that the political balancing requirements would prevent him from getting the job. So the Court ruled that he lacked standing.
Justice Breyer wrote for a unanimous Court. Justice Breyer concluded that Adams failed to show that he was "able and ready" to apply for a judgeship based on three considerations:
First, as we have laid out Adams' words "I would apply . . . " stand alone without any actual past injury, without reference to an anticipated timeframe, without prior judgeship applications, without prior relevant conversations, without efforts to determine likely openings, without other preparations or investigations, and without any other supporting evidence.
Second, the context offers Adams no support. It suggests an abstract, generalized grievance, not an actual desire to become a judge. . . .
Third, if we were to hold that Adams' few words of general intent--without more and against all contrary evidence--were sufficient here to show an "injury in fact," we would significantly weaken the longstanding legal doctrine preventing this Court from providing advisory opinions . . . .
Justice Breyer quoted Justice Powell in United States v. Richardson, reminding us why standing is an important separation-of-powers concern:
[Justice Powell] found it "inescapable" that to find standing based upon [a general interest, common to all members of the public] "would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government." He added that "[w]e should be ever mindful of the contradictions that would arise if a democracy were to permit general oversight of the elected branches of government by a nonrepresentative, and in large measure insulated, judicial branch.
Justice Sotomayor concurred. She wrote to point out that the two requirements were very different and might very well require two different kinds of analysis, if and when this issue comes back to the courts. She also urged lower courts to certify the question of the severability of the two provisions to the state courts.
Thursday, December 3, 2020
The Ninth Circuit affirmed a preliminary injunction yesterday that halted the administration's "public charge" rule--the ban on admission of aliens to the United States who are likely to receive certain public benefits for more than 12 months within any 36 month period. But the court vacated a lower court's nationwide injunction; instead, the ruling temporarily halted the rule within the Ninth Circuit and in other outside states that brought the case.
The ruling aligns with similar rulings in the Second Circuit and Seventh Circuit (where then-Judge Amy Coney Barrett dissented), but conflicts with a ruling out of the Fourth Circuit.
Ordinarily, this case would seem destined for the Supreme Court. But DHS may reverse course in the Biden Administration and render it moot.
The case arose when DHS adopted a rule in August 2019 that re-defined "public charge" under the Immigration and Naturalization Act provision that renders inadmissible any alien who is likely to become a "public charge." In particular, DHS defined "public charge" to mean "an alien who receives one or more [specified] public benefits . . . for more than 12 months in the aggregate within any 36-month period."
The change in definition broke with a long history, "from the Victorian Woodhouse to agency guidance in 1999," defining "public charge" to mean dependence on public assistance for survival--and not "short-term use of in-kind benefits that are neither intended nor sufficient to provide basic sustenance."
The court ruled that the 2019 rule was contrary to law and arbitrary and capricious in violence of the Administrative Procedure Act. It held that the rule violated the long-running meaning of "public charge" under the INA and thus violated the Act. It also held that DHS failed to consider the financial impact of the rule and the health consequences of the rule for immigrants and the public as a whole, and failed to explain its reversal in position (from the 1999 guidance).
Judge VanDyke dissented, relying on the reasoning in the Fourth Circuit ruling, then-Judge Barrett's dissent in the Seventh Circuit case, the earlier Ninth Circuit ruling staying a district court injunction pending appeal, and "the Supreme Court's multiple stays this year of injunctions virtually identical to those the majority today affirms."
Saturday, September 26, 2020
Judge Lucy H. Koh (N.D. Cal.) ruled this week that the Trump Administration's late summer plan to rush census data collection likely violated the Administrative Procedure Act. The ruling halts the implementation of the plan.
The ruling is a blow to the Trump Administration and its latest effort to alter or manipulate census data.
The case arose when the Census Bureau first suspended census operations and then pushed back internal deadlines for census data collection and analysis because of collection problems related to COVID-19. (For one, the Bureau couldn't keep census data doorknockers on the payroll: they kept quitting out of fear of contracting COVID.) The Bureau also announced that it wouldn't be able to meet statutory deadlines for reporting census data. The Bureau said that under its regular deadlines the census would be incomplete and inaccurate.
But then in early August, the Bureau abruptly reversed course and issued the "Replan." The Replan "accelerate[d] the completion of data collection and apportionment counts by our statutory deadline of December 31, 2020 . . . ."
The problem was that the Bureau itself--and the Bureau's unanimous Scientific Advisory Committee, and the GAO, and the Commerce Department's Inspector General--concluded that the Replan increased the risks of an incomplete and inaccurate 2020 census.
Plaintiff organizations and local jurisdictions sued, arguing that the Replan violated the APA and the Enumeration Clause and sought to halt its implementation. The court ruled that the case was justiciable, that the plaintiffs had standing, and that the Replan likely violated the APA. (It did not rule on the Enumeration Clause, because it didn't have to. The APA ruling was enough to say that it likely violated the law.) As to the APA claim, the court wrote:
[T]he Court agreed that Plaintiffs are likely to succeed on the merits of their APA arbitrary and capricious claim for five reasons: (1) Defendants failed to consider important aspects of the problem, including their constitutional and statutory obligations to produce an accurate census; (2) Defendants offered an explanation that runs counter to the evidence before them; (3) Defendants failed to consider alternatives; (4) Defendants failed to articulate a satisfactory explanation for the Replan; and (5) Defendants failed to consider reliance interests.
Friday, September 25, 2020
The D.C. Circuit ruled today that the House of Representatives has standing to challenge President Trump's reprogramming of federal funds to build a border wall.
The ruling is a setback for the Trump Administration and its efforts to build the wall (or at least more of it than Congress authorized through federal funding). But the ruling only says that the House has standing--not that it wins. The case now goes back to the district court for further proceedings, unless the administration seeks en banc or Supreme Court review.
The court said that the House has standing to challenge the reprogramming under the Appropriations Clause, but not under the Administrative Procedure Act. That shouldn't matter much to the future of the case, though: the lower court will still rule whether the Trump administration violated the law (the Constitution) in reprogramming funds.
Aside from allowing this case to move forward, the ruling is also significant because it says that a single house of Congress has standing to challenge executive action in violation of the Appropriations Clause. Appropriations, of course, require both houses of Congress. But the court said that a single house nevertheless suffered sufficient injury to satisfy Article III standing requirements when the executive branch reprograms federal funds in alleged violation of the Appropriations Clause. Here's what the court wrote on that point:
More specifically, by spending funds that the House refused to allow, the Executive Branch has defied an express constitutional prohibition that protects each congressional chamber's unilateral authority to prevent expenditures. It is therefore "an institutional plaintiff asserting an institutional injury" that is both concrete and particularized, belonging to the House and the House alone.
To put it simply, the Appropriations Clause requires two keys to unlock the Treasury, and the House holds one of those keys. The Executive Branch has, in a word, snatched the House's key out of its hands. That is the injury over which the House is suing.
. . .
[U]nder the defendants' standing paradigm [requiring Congress to sue, not just a single house], the Executive Branch can freely spend Treasury funds as it wishes unless and until a veto-proof majority of both houses of Congress forbids it. Even that might not be enough: Under defendants' standing theory, if the Executive Branch ignored that congressional override, the House would remain just as disabled to sue to protect its own institutional interests. That turns the constitutional order upside down.
Thursday, July 9, 2020
Court Says Congress Can Subpoena Trump Financial Records, but Must Account for Separation of Powers Concerns
The Supreme Court ruled today that while Congress has authority to issue subpoenas for the President's personal financial records, courts that judge those subpoenas must take more careful account of the separation-of-powers considerations at play.
The ruling in Trump v. Mazars vacates the lower courts' rulings and remands the case for reconsideration in light of the balancing test that the Court sets out.
The ruling means that the congressional committees won't get President Trump's financial records yet, and maybe never. It all depends on whether Congress can meet the test set out in the Court's opinion. Either way, it almost certainly won't happen before the 2020 election.
The ruling, like Vance, is a short-term victory for President Trump, in that his records probably won't come out soon. But on the other hand, it's a decisive long-term defeat for the presidency (and victory for Congress), as the Court affirmed Congress's power to subpoena the President's personal records, even with a somewhat higher-than-normal requirement.
Chief Justice Roberts wrote for the Court, joined by Justices Ginsburg, Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh. Justice Thomas dissented, and Justice Alito dissented. (If you're keeping count, that's the same line-up as in Vance.)
The Court first rejected the President's sweeping claim that tried to shoe-horn executive privilege into the case: "We decline to transplant that protection root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations."
The Court then acknowledged that Congress has very broad, but still defined, powers of investigation and subpoena, even against the President, and even for the President's personal papers. But the Court said that because these subpoenas sought personal information of the President (as the single head of the Executive Branch), they raised especial separation-of-powers concerns that the lower courts failed sufficiently to account for:
The House's approach fails to take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President's information. . . .
Without limits on its subpoena powers, Congress could "exert an imperious controul" over the Executive Branch and aggrandize itself at the President's expense, just as the Framers feared.
The Court set out a non-exhaustive list of things that courts should look for in judging congressional subpoenas for a President's personal information:
First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers. Congress may not rely on the President's information if other sources could reasonably provide Congress the information it needs in light of its particular legislative objective. . . .
Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress's legislative objective. . . .
Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. The more detailed and substantial the evidence of Congress's legislative purpose, the better. . . .
Fourth, courts should be careful to assess the burdens imposed on the President by a subpoena. . . .
Other considerations may be pertinent as well; one case every two centuries does not afford enough experience for an exhaustive list.
The Court vacated the lower courts' opinions and remanded for reconsideration under these factors.
Justice Thomas argued that "Congress has no power to issue a legislative subpoena for private, nonofficial documents--whether they belong to the President or not," unless Congress is investigating an impeachment.
Justice Alito dissented, too, arguing that the bar for Congress should be set higher than the Court's setting, and that "the considerations outlined by the Court can[not] be properly satisfied [on remand] unless the House is required to show more than it has put forward to date."
Wednesday, July 8, 2020
The Supreme Court today upheld the Trump Administration's rules substantially broadening the religious exemption and expanding it to those with a "moral" objection to the Affordable Care Act's contraception guarantee.
The ruling in Little Sisters v. Pennsylvania means that a dramatically expanded group of employers--those with a religious objection or moral objection to contraception--get an automatic free pass on the requirement that employers provide their female employees with health-insurance coverage that includes contraceptives. Covered employers need not file for an self-certified exemption or accommodation; they just have to, well, not provide coverage.
This could mean that between 70,500 and 126,400 women would lose access to contraceptive services under their employer-provided health insurance plans. (This is the Administration's estimate.)
The Court's ruling leaves open another challenge to the rules, however, and the plaintiffs could raise the argument on remand, that is, that the rules are arbitrary and capricious under the Administrative Procedure Act.
Justice Thomas wrote for the Court, joined by Chief Justice Roberts, Alito, Gorsuch, and Kavanaugh. The Court ruled that the Departments had statutory authority to adopt the rules under 42 U.S.C. Sec. 300gg-13(a)(4), which provides that "with respect to women," group health plans must "at a minimum, provide . . . such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by [HRSA]." The Court said that the "as provided for" clause "grants sweeping authority to HRSA to craft a set of standards defining the preventive care that applicable health plans must cover," leaving the HRSA with "virtually unbridled discretion to decide what counts as preventive care and screenings." The Court held that this authority included the power "to identify and create exemptions" like the ones in the challenged rules.
The Court also held that the Departments complied with the procedural requirements in the Administrative Procedure Act in adopting the rules.
The Court expressly declined to say whether RFRA compelled the exemptions in the rules, as the Administration argued. Still, the Court did say that the Departments were within their powers to consider RFRA in writing the rules, and even that "[i]t is clear from the face of the statute that the contraceptive mandate is capable of violating RFRA."
Justice Alito concurred in full, joined by Justice Gorsuch. Justice Alito argued that the Court should have resolved the RFRA question in favor of the Administration--that is, that RFRA compelled the rules. According to Justice Alito, this would have meant that the rules were not impermissibly arbitrary and capricious under the APA, and thus foreclosed that argument on remand.
Justice Kagan, joined by Justice Breyer, concurred in the judgment. Justice Kagan argued that HRSA had statutory authority to exempt certain employers from the contraceptive guarantee, but (different than the Court) because the HRSA was entitled to Chevron deference in its interpretation of the ambiguous statutory language. She also argued that the rules could be arbitrary and capricious--an issue for the lower court on remand.
Justice Ginsburg dissented, joined by Justice Sotomayor. Justice Ginsburg pointed to an earlier provision in the Act that specifies that group health plans and health insurance issuers "shall" cover specified services. She argued that this provision mandates who is required to provide specified services--and that it doesn't include any exemptions. (She argued that the section that the Court relied on only went to what services must be provided, not who must provide them. And yet the rules provide exemptions for who must provide services.) She also argued that the rules weren't compelled by the Free Exercise Clause or RFRA.
Monday, June 29, 2020
The Supreme Court today struck the statutory independence of the Director of the Consumer Financial Protection Bureau, even as it declined to rule the entire CFPB unconstitutional. This means that the CFPB stays in place, Director and all, but that the President can terminate the Director at will. (As to the particular case before the Court, which challenged a CFPB enforcement demand, the ruling invalidates the demand. But the CFPB could reissue it and re-commence enforcement, but without protections for the Director.)
More broadly, the ruling in Seila Law v. CFPB says that Congress lacks authority to create an Executive Branch "independent" principal office, unless that office is part of a larger board or commission, and probably without significant executive power.
The ruling is a victory for the Trump Administration, which opposed independence for the CFPB Director. But at the same time, it sharply restricts Congress's power to create an independent principal office within the Executive Branch.
Under the Dodd-Frank Act, the CFPB has authority to implement and enforce a variety of consumer financial protection laws to "ensur[e] that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive."
The Director is nominated by the President and confirmed by the Senate. In creating an independent Director, Congress legislated that the Director would be appointed for five years and can be removed only for "inefficiency, neglect of duty, or malfeasance in office." It's that "independence" that was at stake in the case.
The Court ruled that this independence violated the separation of powers. Pointing to the Article II Vesting Clause, the Court wrote that "[t]he entire 'executive Power' belongs to the President alone." It held that statutory independence for a principal executive officer who is not a part of a board of commission impermissibly restricts the President's executive power.
The Court distinguished Humphrey's Executor, holding that Humphrey's upheld the independence of a multi-member board, the FTC, whereas the CFPB has a single head. According to the Court, unlike the FTC (at the time), the CFPB's single Director is not a "body of experts," is not "non-partisan," and does not have staggered terms that "prevent complete turnover in leadership." Moreover, the CFPB Director has greater responsibilities than the old FTC did, including the "quintessentially executive power" to seek monetary penalties in federal court.
The Court distinguished Morrison v. Olson, holding that Congress may create an independent inferior officer. The Court said that the CFPB Director was a principal office, and had more wide-ranging authority than the independent counsel in Morrison, and that the independent counsel's prosecutorial authority looked inward, to Executive Branch officials on specified matters, whereas the CFPB Director has authority over "millions of private citizens and businesses, imposing even billion-dollar penalties through administrative adjudications and civil actions."
The Court declined to "extend" those cases to cover the "new situation" of the CFPB Director's independence. The Court said that there was no precedent for this kind of office, and that it "is incompatible with our constitutional structure." "The . . . constitutional strategy is straightforward: divide power everywhere except for the Presidency, and render the President directly accountable to the people through regular elections. In that scheme, individual executive officials will still wield significant authority, but that authority remains subject to the ongoing supervision and control of the elected President."
But even as the Court struck statutory independence for the Director, it declined to take down the entire CFPB. The Court ruled that the independence provision was severable from the rest of the Act, and therefore that the CFPB could remain, Director and all, but without the independence protection.
Justice Kagan, dissenting on independence but concurred on severability, and joined by Justices Ginsburg, Breyer, and Sotomayor, wrote:
If a removal provision violates the separation of powers, it is because the measure so deprives the President of control over an official as to impede his own constitutional functions. But with or without a for-cause removal provision, the President has at least as much control over an individual as over a commission--and possibly more. That means the constitutional concern is, if anything, ameliorated when the agency has a single head. . . .
In second-guessing the political branches, the majority second-guesses as well the wisdom of the Framers and the judgment of history. It writes in rules to the Constitution that the drafters knew well enough not to put there. It repudiates the lessons of American experience, from the 18th century to the present day. And it commits the Nation to a new static version of governance, incapable of responding to new conditions and challenges.
Friday, June 26, 2020
In a pair of rulings today, here and here, the Ninth Circuit held that President Trump exceeded his authority under federal law and violated the Appropriations Clause in reprogramming funds to build portions of a border wall between the U.S. and Mexico.
The rulings are a sharp set-back to President Trump's efforts to make good on his promise to build the wall.
Today's rulings come after the case has already been to the Supreme Court. Recall that the Court earlier granted the Administration's motion for a stay of the district court's earlier injunction, affirmed by the Ninth Circuit. The Court's stay meant that the injunction would not remain in place as the case moved forward on the merits. So the case moved forward on the merits, sans injunction. But then the district court ruled in favor of the plaintiffs and granted a new injunction. That's why we got today's rulings.
(There's some weirdness here. The Supreme Court granted the stay, stating, "Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with Section 8005." Despite this language, the court today ruled that the plaintiffs in both cases did have causes of action.)
The rulings say that President Trump exceeded his authority under the 2019 Defense Department Appropriations Act and violated the Appropriations Clause, and affirmed a permanent injunction.
The court held that in order to reprogram under Sections 8005 and 9002 of the 2019 Defense Department Appropriations Act, (1) there must be for an unforeseen military requirement and (2) Congress must not have previously denied funding. The court said that President Trump's reprogramming violated both requirements.
As to the first, the court said that the border wall was no "unforeseen military requirement." Among other things, the court noted that President Trump had long advocated for the wall, suggesting that it couldn't have been "unforeseen."
As to the second, the court noted that Congress had previously denied the Administration's request for full funding.
Judge Collins dissented in both cases. Judge Collins argued that the plaintiffs didn't have a cause of action (see the weirdness parenthetical, above), and that even if they did they'd lose on the merits.
Wednesday, June 24, 2020
A sharply divided three-judge panel of the D.C. Circuit today ordered Judge Emmet Sullivan to dismiss the criminal case against Michael Flynn for lying to the FBI. This is hardly the final word, though: the extraordinary ruling is sure to go to the full circuit, and perhaps even the Supreme Court.
Flynn was charged with lying to the FBI as part of the FBI's investigation into connections between the Trump campaign and Russia in the 2016 election. He pleaded guilty--twice, before two different federal judges--and agreed to cooperate with the government in its ongoing investigation. The court deferred sentencing to allow Flynn to continue to cooperate.
Flynn then moved to withdraw his plea, arguing that the government failed to produce exculpatory evidence. Most recently, DOJ came across material that, according to the government, means that the prosecution can no longer prove the charge. So the government moved to dismiss the case.
Judge Sullivan appointed an amicus to represent the no-dismissal side, invited other amici to weigh in, and set a hearing date on the motions--all to determine whether he should grant "leave of court" to dismiss. (That's the standard under a Rule 48(a) motion to dismiss a criminal charge.) (Judge Sullivan had serious concerns about the government's motion, given the many, many irregularities in the case.)
Then Flynn filed a writ of mandamus in the D.C. Circuit, and the government weighed in to support it. Note that Judge Sullivan had not yet even held the hearing on the motion to dismiss, much less denied it.
(Just gotta say it: Wow. Not your usual federal prosecution.)
Today the D.C. Circuit ruled for Flynn and ordered the prosecution dismissed. Judge Rao wrote the majority opinion, which concluded that Judge Sullivan committed clear legal error. Moreover, by ordering dismissal without a hearing or further consideration by the lower court, the court said that the district court had no role under the Rule 48(a) "with-leave-of-court" standard.
Judge Rao started by noting that a prosecution's motion to dismiss is entitled to a presumption of regularity. But the court wrote that Judge Sullivan raised nothing to challenge this presumption, or to show that this was the kind of case that warranted a hearing or further judicial inquiry into the motion. As such, the court concluded that Judge Sullivan went beyond his authority in appointing an amicus and scheduling a hearing. Again: All this before Judge Sullivan even held the hearing, much less ruled against dismissal.
Judge Rao explained in separation-of-powers terms:
In this case, the district court's actions will result in specific harms to the exercise of the Executive Branch's exclusive prosecutorial power. The contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority. Thus, the district court's appointment of the amicus and demonstrated intent to scrutinize the reasoning and motives of the Department of Justice constitute irreparable harms that cannot be remedied on appeal.
Judge Rao seemed to try to leave open some room for a district court to determine whether to grant "leave of court" on a Rule 48(a) motion to dismiss. But if this case doesn't fit the bill (again, with all its irregularities), it's not clear what would.
Judge Wilkins dissented. In short:
This appears to be the first time that we have issued a writ of mandamus to compel a district court to rule in a particular manner on a motion without first giving the lower court a reasonable opportunity to issue its own ruling; the first time any court has held that a district court must grant "leave of court" pursuant to Federal Rule of Criminal Procedure 48(a) without even holding a hearing on the merits of the motion; and the first time we have issued the writ even though the petitioner has an adequate alternative remedy [that is, appeal after a denial of the motion to dismiss], on the theory that another party [the government] would not have had an adequate alternative remedy if it had filed a petition as well. Any one of these is sufficient reason to exercise our discretion to deny the petition; together they compel its rejection.