Constitutional Law Prof Blog

Trump Administration Strikes at Affordable Care Act in its Entirety

Steven D. Schwinn, John Marshall Law School

The Trump Administration reversed its earlier position and argued before the Fifth Circuit last week that the entire Affordable Care Act must fall. According to the administration, that's because (1) the individual mandate is now unconstitutional and (2) the rest of the Act is inseparable from it and therefore must also fall.

The move was expected. With it, the administration now supports the district court's sweeping ruling that struck the entire Act.

The administration argues first that the individual plaintiffs have standing to lodge this challenge. The administration claims that these "individual plaintiffs are directly subject to the individual mandate and have established concrete financial injuries from it." It argues that it doesn't matter that there's now no means of enforcing the mandate (after Congress set the tax penalty at $0), because the plaintiffs have been harmed by higher insurance prices and fewer insurance choices resulting from the (inseverable) guaranteed-issue and community-rating provisions.

The administration goes on to argue that the mandate is now unconstitutional, because the tax penalty is set at $0. The administration claims that the $0 tax penalty transforms the mandate from a congressional action based on its taxing authority (held valid in NFIB) to a congressional action based on its Commerce Clause authority (held invalid under NFIB). As a result, the administration claims that the mandate is unconstitutional.

Finally, the administration claims that all other provisions of the Affordable Care Act are inseverable from the mandate, and therefore must fall, too. The administration points to congressional intent and Court rulings that the guaranteed-issue and community-rating provisions are tied up with the individual mandate; and it argues that all other ACA provisions are, too, because their operation would fundamentally change from the ways that Congress intended when the mandate and the guaranteed-issue and community-rating provisions fall.

The administration's position, if accepted by the Fifth Circuit, would mean that the entire ACA goes away, including the individual mandate; the guaranteed-issue and community-rating provisions; and the health-care exchanges, coverage limits, requirements to cover dependent children, and restrictions on high-cost insurance plans.

First Circuit Says Massachusetts Has Standing to Challenge Contraception Mandate Exemptions

Steven D. Schwinn, John Marshall Law School

The First Circuit ruled that the state of Massachusetts has standing to sue the Trump administration to halt implementation of its rules establishing religious and moral exemptions to the Affordable Care Act's "contraception mandate."

Those rules allow covered employers to get an exemption from the ACA's requirement that employers provide certain contraceptive services.

The mandate is already subject to nationwide injunctions from other cases (in which the courts have also found valid standing for challenging states; we posted most recently here.) This is just the latest case to move forward.

The court said that Massachusetts sufficiently demonstrated a fiscal harm. Here's why: (1) the state demonstrated that some employers in the state are likely to use the exemptions and drop employees from contraception coverage; (2) the state demonstrated that at least some of those employees are likely to turn to the state for contraception and related services; and (3) this "cause and effect" chain is based on "probable market behavior."

The court also ruled that the state showed causation and redressability--the former for the reasons above; the latter because halting the exemptions would also halt this chain of causation.

The ruling is only preliminary. It only allows the case to move forward on the merits. But as we said: the rules are already subject to nationwide injunctions, and this case won't directly affect those injunctions.

Federal Judge Enjoins Texas anti-BDS Statute as Violative of First Amendment

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

In an opinion in Amawi v. Pflugerville Independent School District, United States District Judge for the Western District of Texas, Judge Robert Pittman, issued a temporary injunction against Texas Gov. Code § 2270.001 et seq., also known as Texas H.B. 89, passed in 2017.

HB 89 prohibits governmental entities from entering into contracts for goods or services unless the contract contains a written verification that the contractor does not and will not "boycott Israel." Texas essentially admitted HB 89 is targeted at participants in the BDS (boycott, divest, and sanction) movement which protests Israel's "occupation of Palestinian territory and its treatment of Palestinian citizens and refugees." The five plaintiffs —a speech pathologist contracting with a school district; a freelance writer, artist, interpreter, and translator contracting with a university; and three university students who would contract with high schools as debate tournament judges — refused to sign the required statement that they did not and would not boycott Israel.

Judge Pittman easily found that the plaintiffs had standing, that their claims were ripe, and that the action was not barred by Eleventh Amendment immunity.

On the merits of the First Amendment claims, Judge Pittman's careful and well reasoned opinion first concluded that the prohibition of a boycott was inherently expressive activity protected by the First Amendment. The parties had raised what Judge Pittman called "dueling precedents": NAACP v. Claiborne Hardware Co. (1992) and Rumsfeld v. FAIR (2006).  He concluded:

Claiborne, not FAIR, governs this case. Texas does not dispute that Plaintiffs’ boycotts are political; they support the BDS movement’s “dispute with the Israeli government’s policies.”  Claiborne deals with political boycotts; FAIR, in contrast, is not about boycotts at all. The Supreme Court did not treat the FAIR plaintiffs’ conduct as a boycott: the word “boycott” appears nowhere in the opinion, the decision to withhold patronage is not implicated, and Claiborne, the key decision recognizing that the First Amendment protects political boycotts, is not discussed.

Moreover, Judge Pittman stated, even if "it were generally true that boycotts are not inherently expressive, H.B. 89, by its terms, applies only to expressive boycotts," given the statutory definitions. Judge Pittman then rejected the arguments of Texas that exceptions to Claiborne were applicable.

Judge Pittman then found that the H.B. 89 was viewpoint and content discrimination, and was not government speech under Walker v. Texas Div., Sons of Confederate Veterans, Inc. (2015).  Applying the applicable standard of strict scrutiny, Judge Walker found that the asserted compelling governmental interests failed. Judge Pittman found two of the interests — prohibiting national-origin discrimination, and prohibiting state contractors from violating anti-discrimination principles — to essentially be not the actual interests underlying H.B. 89. Judge Pittman noted the statute does not refer to the "national origin" or "nationality" of individuals but to "the nation of Israel." Judge Pittman described the statute as being "underinclusive" in this way, providing examples of who would and would not be covered by the statute.  As to the third interest asserted by Texas — aligning the state's commercial interests with Israel because it is “one of the few democracies in the Middle East and an ally of the United States and this State" — Judge Pittman essentially found this was not compelling. Texas had argued that “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech,” but Judge Pittman found that this was not an "incidental burden" on speech, but targeted specific speech directly.

Judge Pittman then proceeded to an analysis of the means chosen, although clearly stated that because "H.B. 89 is not justified by any compelling state interest, no amount of narrowing application will preserve it from constitutional attack. But even if Texas’s stated interests were the actual interests advanced by the statute—and even if they were compelling—the Court finds that H.B. 89 still sweeps too broadly."

Judge Pittman's extensive and detailed opinion then found that plaintiffs' additional First Amendment arguments — that the statute is an unconstitutional condition, that it was compelled speech, and that it was unconstitutionally vague — all had merit.

The constitutionality of anti-BDS statutes is being vigorously litigated and Judge Pittman's decision is sure to be appealed. The opinion's perspective on the popularity of anti-BDS statutes is quite interesting:

Twenty five states have enacted similar legislation or issued executive orders restricting boycotts of Israel, and Congress has declared its opposition to the BDS movement, see 19 U.S.C. § 4452. In Texas, only five legislators voted against H.B. 89.  Texas touts these numbers as the statute’s strength. They are, rather, its weakness. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia State Bd. of Educ. v. Barnette (1943).

[some citations omitted].

 

 

District Court Tosses Challenge to Capital Post-Conviction Counsel Regs

Steven D. Schwinn, John Marshall Law School

Judge Reggie B. Walton (D.D.C.) ruled that plaintiffs lacked standing to challenge federal regulations that specified a process for certification of state capital counsel in post-conviction proceedings. The ruling means that the regs stay on the books, unless and until a plaintiff who can demonstrate a concrete harm brings a challenge. 

Judge Walton's ruling follows a 2016 Ninth Circuit ruling by similar plaintiffs against the same regs.

The case tests DOJ's 2013 regs to certify state's mechanism for providing counsel to indigent prisoners in state postconviction proceedings. Under the Antiterrorism and Effective Death Penalty Act of 1996, if a state provides a mechanism for counsel, and gets it certified by DOJ, then (1) the capital prisoner gets an automatic stay from execution while postconviction and federal habeas proceedings are pending, (2) the statute of limitations for filing a federal habeas petition is shortened from one year to six months from the date of final judgment of the state courts on direct appeal, and (3) federal courts have to give priority status to the habeas case and resolve it within time periods set by statute.

DOJ implemented regs in 2013 to set standards and a process for DOJ certification of a state mechanism. (Again, certification would trigger the three things above, including the compressed time to file a federal habeas petition.) The regs allow the AG to "determine the date on which the state established its mechanism." And they include a retroactivity provision: "The certification is effective as to the date the Attorney General finds the state established its adequate mechanism; as this date can be in the past, a certification decision may be applied retroactively." 

Under the plain language of AEDPA and the regs, the AG's determination of the certification date--especially a retroactive determination--could throw a serious curve ball at capital attorneys and prisoners in the postconviction pipeline, by suddenly (or even retroactively) shortening their deadline. Even without formal certification (yet), attorneys that represent capital prisoners in postconviction cases have to adjust their practices in accepting new clients.

So when Texas applied for certification, but before it received certification, the Texas Defender Service and individual prisoners sued to halt and set aside the regs. But the court dismissed the case for lack of standing, and lack of ripeness.

Applying Havens Realty Corp. v. Coleman, the court held that

because "TDS's mission is to establish a fair and just criminal justice system in Texas" and a significant aspect of TDS's work includes "represent[ing] death-sentenced prisoners in post[]conviction proceedings in federal court," the 2013 Regulations--particularly the provision allowing for the potential retroactive application of certification--is "'at loggerheads' with [TDS's] mission-driven activities."

But "TDS's position that it has been 'forced to expend substantial resources to prepare its comments [to Texas's petition]' and that its staff 'divert[ed] their attention from their ordinary responsibilities,' fails to satisfy the second prong of injury-in-fact under Havens because TDS has not shown that preparing comments to advocate against Texas's certification was an 'operational cost[] beyond those normally expended to carry out its advocacy mission.'"

As to the individual plaintiffs, the court held that the 2013 regs weren't aimed at them, and that their rights therefore could only "be affected indirectly, if the sentencing state requests certification and if the Attorney General finds that the state's capital-counsel mechanism comports with" the Act and regs. "The 2013 Regulations therefore do not have the coercive impact necessary to confer standing on the individual plaintiffs to bring their preenforcement challenge to the 2013 Regulations."

The court also ruled that the plaintiffs' claims weren't ripe for review.

SCOTUS Hears Oral Argument on Virginia Racial Gerrymandering, Bethune-Hill Redux

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

The United States Supreme Court heard oral argument in Virginia House of Delegates v. Bethune-Hill involving the ultimate issue of whether the redistricting plan of Virginia is racial gerrymandering in violation of the Equal Protection Clause of the Fourteenth Amendment.  Like many states, the redistricting legal landscape in Virginia is complex; a good explainer from Loyola-Los Angeles Law School is here.

Recall that two years ago, in March 2017, the Court in Bethune-Hill v. Virginia State Board of Elections, the Court clarified the standard for deciding whether racial considerations in reapportionment violate the Equal Protection Clause. It affirmed the three-judge court's decision as to one of the districts as constitutionally considering race, but remanded the determination of the constitutional status of the other eleven districts. 

On remand, the three-judge court divided, with the detailed and extensive opinion authored by Judge Barbara Milano Keenan for the majority ultimately concluding that the "Commonwealth of Virginia's House of Delegates  Districts numbers 63, 69, 70, 71, 74, 77, 80, 89, 90, 92, and 95 as drawn under the 2011 Redistricting Plan, Va. Code Ann. § 24.2—3o4.03, violate the Equal Protection Clause. "

During that proceeding, the Virginia House of Delegates — one house of the Virginia legislature — was allowed to intervene, but a question on appeal to the United States Supreme Court is whether the House of Delegates, represented by Paul Clement, has standing to appeal, especially given that the Virginia Board of Elections, represented by Toby Heytens, the appellate the first time the case reached the United States Supreme Court, is now the appellee in agreement with Bethune-Hill, represented by Marc Elias. Morgan Ratner, an assistant Solicitor General, appeared on behalf of the United States and fully supported neither party, but did argue that the House of Delegates lacked standing, because "the House as an institution isn't harmed by changes to individual district lines, and while states can authorize legislatures to represent them in court, Virginia hasn't done so."  While Justice Alito seemed to take the position that all the House of Delegates needed to establish was some injury on fact, such as  the cost of publishing a new map showing the new districts, with Justice Sotomayor labeling Clement's statement that Virginia had "forfeited" the ability to object to the appeal as an "extreme" view.  There was seemingly some sympathy to Toby Heytens' view that the Court was essentially being asked to referee a dispute between branches of the Virginia state government, with Justice Alito also asking whether or not the question of which entity may represent the state is not a question that should be certified to the Virginia Supreme Court.  The precedential value and applicability of Minnesota State Senate v. Beens (1972), which Justice Ginsburg pointed out has not been cited in 30 years and was from an era in which standing was more "relaxed" and which others distinguished in terms of the impact on the legislative body.

On the merits, one issue was credibility of witnesses and deference to the court's factual determinations, especially given that the first three judge court had reached some opposite conclusions, including in some districts whether or not racial considerations predominated (and thus strict scrutiny would apply). This might seemingly be explained by the different standard articulated by the Court's previous decision in Bethune-Hill before remand, but this did not seem to be addressed. As typical, the precise facts in the map-making and the interplay between the Voting Rights Act and the Equal Protection Clause made the argument exceedingly detailed. For example, there are particular questions about the BVAP [Black Voting Age Population] in specific districts and what percentage is acceptable in each district as individualized or as comparative to other districts.

If the Court does not resolve the case on lack of standing, one can expect another highly specific opinion regarding racial gerrymandering in the continuing difficult saga of racial equality in voting.

[image: Virginia House of Delegates 2012 via]

District Court Gives the Go Ahead to Sierra Club Suit Against Energy for Lack of Energy-Efficiency Regulation

Steven D. Schwinn, John Marshall Law School

Judge Emmet G. Sullivan (D.D.C.) ruled in Sierra Club v. Perry that Sierra Club has associational standing to sue the Department of Energy for the Department's failure to promulgate energy-efficiency standards for manufactured housing, as required by the Energy Independence and Security Act of 2007.

The ruling means that Sierra Club's case can go forward. And given the court's conclusions, and the law, it seems likely that Sierra Club will win. But that doesn't mean that we'll see regs any time soon.

The case arose when Sierra Club sued the Department for failing to promulgate energy-efficiency standards for manufactured housing by 2011, as required by the Act. The Department moved to dismiss for lack of standing. The court rejected that motion.

The court ruled that Sierra Club sufficiently pleaded that its members suffered three different harms. As to the first, economic injury, the court said that "members have alleged that they either cannot find, or it is difficult to find, energy-efficient manufactured homes, and their ability to search for such homes will continue to be adversely impacted by DOE's inaction." The court noted that under circuit law a plaintiff has suffered an injury to challenge an agency action if the action prevented consumers from purchasing a desired product--even if they could purchase an alternative.

As to the second, health injury, the court said that "seven members allege that their exposure to air pollutants and other harmful emissions is negatively impacting their health due to the lack of standards for energy-efficiency in manufactured housing." 

As to the third, procedural injury, the court simply said that "the Secretary has compromised Sierra Club's members' 'concrete and particularized procedural rights,' because it is clear that the Secretary failed to establish regulations for energy-efficiency standards mandated by Congress, and it is substantially probable that the Secretary's failure to establish the standards has caused Sierra Club's members' concrete injury."

The court held that Sierra Club satisfied the causation and redressability requirements, because, by the Department's own reckoning, regulations would clean up the air (and a lack of regulations keeps it dirtier). 

Fourth Circuit Finds Public Official Violated First Amendment Rights of Constituent on Facebook

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

In its thorough opinion in Davison v. Randall (& Loudoun County), the Fourth Circuit earlier this month concluded that the interactive component of the Facebook Page of Phyllis Randall, the Chair of Loudoun County, Virginia constituted a public forum and that the Chair engaged in classic viewpoint discrimination violating the First Amendment when she banned a constituent from posting on the page.

The Fourth Circuit's unanimous opinion by Judge James Wynn affirms the opinion by District Judge James Cacheris which we extensively discussed here. 

However, for the first time on appeal the government defendants raised the argument that the individual constituent who was temporarily banned, Brian Davison, lacked Article III standing because he did not suffer an injury in fact. Judge Wynn's opinion first found that the plaintiff evinced an intent to engage in the proscribed conduct in the future — here, commenting on Facebook Pages of the government official — which was easily satisfied given that he was "active in local politics."   Second, Judge Wynn's opinion found that there continued to be a credible threat of future "enforcement" by the government, especially given past actions and that Randall had not "disavowed" future enforcement.

Judge Wynn's opinion for the Fourth Circuit on the state action threshold issue agrees with the district court's opinion that there is state action. Judge Wynn wrote that the issue of whether there is sufficient "color of state law" under 42 U.S.C. §1983 is "synonymous with the more familiar state action requirement applicable to Fourteenth Amendment claims" and the analysis for each is identical. The precise contours of that analysis do not admit to a "specific formula" according to the opinion, instead meriting consideration of the totality of the circumstances and whether there is a sufficiently close nexus. Importantly, here the court concluded that the official used the power and prestige of her office to damage the plaintiff constituent based upon events which arose out of her official status.

On the First Amendment merits, Judge Wynn's opinion found that the Facebook Page — or portions of it — created a public forum, an issue that is intertwined with the state action issue. For the public forum question, the Fourth Circuit, like the district judge, again discussed the specifics of the Facebook Page and interactive component with its invitation for ANY Loudoun resident to make comments on ANY issues. The court noted the language from the Supreme Court's opinion in Packingham v. North Carolina (2017) commenting that social media as currently the most important place for the exchange of views.  Judge Wynn rejected the government's arguments that Facebook was a private website that cannot be converted to a public forum, noting that the forum analysis under the First Amendment applies to private property dedicated to public use.  Judge Wynn also rejected the government's argument that the Facebook Page was exempt from First Amendment analysis as government speech, again noting that it specifically invited constituents to participate.

Interestingly, the Fourth Circuit analogized to Halleck v. Manhattan Community Access Corp (2nd Cir. 2018), which, as the opinion discussed in a footnote, is now before the United States Supreme Court on certiorari (our preview is here).  But the Fourth Circuit distinguished the issues before the Court in Halleck as being state action issues rather than the public forum issues to which it analogized.

Court Says Plaintiffs Don't Not Have Standing to Challenge Trump's 2-for-1 Regulatory EO

Judge Randolph D. Moss (D.D.C.) ruled last week that Public Citizen doesn't not have standing to challenge President Trump's executive order requiring agencies to revoke two regs for every one they adopt. 

The unusual ruling in this unusual case comes because of the unusual procedural posture: the government moved to dismiss for lack of standing, even as Public Citizen moved for partial summary judgment on standing. 

The ruling simply means that the case can move forward--first, on standing. The next step: the court will schedule a conference to determine how best to finally decide the standing question. At issue: Whether President Trump's EO is actually causing agencies not to adopt regulations (that then harm Public Citizens or its members).

After the court initially dismissed the case for lack of standing, Public Citizen amended its complaint to allege "purchaser standing" under circuit law. Under that doctrine, a plaintiff can allege standing based on an agency's failure to regulate, if the consumer wanted to purchase a product that would have been subject to that regulation. As the court explained, with regard to the vehicle-to-vehicle regulation--one of the five that Public Citizen challenged: 

Plaintiffs now [state] that "[t]he delay of the V2V rule is depriving" two of their members "of the opportunity to purchase vehicles with this desired feature." Although that addition might seem minor, it signals a significant change in Plaintiffs' theory of standing: rather than rely on an increased-risk-of-harm theory of standing, as they previously did, they now contend that two members of Public Citizen, Amanda Fleming and Terri Weissman, would have "purchaser standing" were they to sue in their right and that their interests are sufficient to sustain Public Citizen's associational standing to sue. . . .

Fleming attests that she plans to purchase a new car "in the next 5 years or so," and Weissman attests that she plans to buy a new car "in the next 5-7 years." Both attest that they would like their new cars to include V2V technology. They assert that the delay in finalizing the rule "will negatively affect [their] ability to purchase a new car with this safety system" and that they will "be limited in [their] ability to purchase the vehicle[s] [they] desire." 

Under circuit precedent, "the inability of consumers to buy a desired product may constitute an injury-in-fact 'even if they could ameliorate the injury by purchasing some alternative product.'" "That holds true here and provides a sufficient basis to reject the government's argument that Fleming and Weissman face no threat of injury because they can, in any event, buy a V2V-equipped Cadillac CTS sedan, Lexus, or Toyota."

But still there's the question of causality (and the related question of redressability). In particular: Did President Trump's EO cause the failure to regulate, and would a court order redress the plaintiffs' injuries? The court said that Public Citizen plausibly pleaded causation (and thus denied the government's motion to dismiss), but that it didn't show causation beyond genuine dispute (and thus denied Public Citizen's motion for summary judgment).

That ruling leaves the case alive--but only (at first) to decide whether the EO caused the plaintiffs' injuries.

District Court Dismisses Maryland's Obamacare Case Against the Feds for Lack of Standing

Judge Ellen Lipton Hollander (D. Md.) dismissed Maryland's case against the federal government for a declaration as to the constitutionality and enforceability of the Affordable Care Act and an injunction to get the government to enforce it. Judge Hollander concluded that the state lacked standing.

At the same time, the court recognized that Maryland might establish standing in the future--if the administration actually fails to enforce the ACA.

Maryland threw all of its standing-spaghetti at the wall, but still it wasn't enough to overcome what the court called the speculative nature of its harm. Maryland argued that the government's failure to enforce the ACA would harm its proprietary and financial interests (because the state set up systems, including an exchange, under the ACA, and because the state would be on the hook for uninsureds' care); quasi-sovereign interests (ensuring that the state and its residents get to participate in the ACA); and sovereign interests (in the creation and enforcement of its insurance and healthcare regulatory regime).

But the court said Maryland's harms were too speculative, even given the state's allegations in a second amended complaint that specifically detailed the administration's efforts to undermine the ACA. (Importantly, the court concluded that Maryland hadn't sufficiently pleaded that the administration would fail to enforce the ACA--not that nonenforcement would lead to the harms that Maryland cited.) In short:

Here, the State does not fear an imminent risk of enforcement. Rather, it fears nonenforcement, which it claims would result in significant costs and harm to the State. Whereas the executive agencies are responsible for enforcing the law and can therefore be expected to bring enforcement actions, they are categorically prohibited from flouting the law. To establish a plausible inference that an agency will imminently flout the law, particularly one affecting millions of people and billions of federal dollars, requires more persuasive allegations that defendants imminently intend not to enforce the ACA.

The President's profound disdain for the ACA cannot be seriously disputed. But, the State's allegations do not create a plausible inference of a substantial or certainly impending risk that the Trump Administration will cease enforcement of part or all of the ACA. Neither the President's zealous attempts to repeal the statute, nor his derisive comments about it, support an inference that he will fail to enforce the law.

Ninth Circuit Halts Interim Rules on ACA Contraception Exemptions, but Only as to Plaintiff States

The Ninth Circuit upheld a lower court's preliminary injunction barring the government from enforcing its interim final rules allowing employers and organizations more freely to exempt themselves from the Affordable Care Act's contraception requirement. But at the same time, the court narrowed the nationwide injunction to just the plaintiff states.

The ruling is a significant victory for the plaintiffs. But it may be short-lived, as the government moves to implement final rules (the same as the interim rules, published in November) in January.

The case, California v. Azar, involves several states' (California, Delaware, Virginia, Maryland, and New York) challenge to the government's 2017 interim final rules substantially loosening the exemption standard for organizations and persons to get out from under the Affordable Care Act's contraception requirement. (Recall that the Supreme Court declined to rule on the government's prior exemption in Zubik v. Burwell.) The two IFRs categorically exempted certain religious employers and essentially made the requirement optional for anyone else who has a "sincerely held moral conviction" to contraception.

The plaintiffs argued that the IFRs violated the Administrative Procedure Act (because the agencies didn't use APA notice-and-comment procedures in implementing the IFRs), equal protection, and the Establishment Clause. The Northern District of California held that they were likely to succeed on their APA claim, and issued a nationwide injunction.

The Ninth Circuit affirmed, but limited the injunction to the plaintiff states.

The court first held that the case wasn't moot. The court said that while the agencies published final rules in November, those rules won't go into effect until January 14, 2019. In the meantime, the IFRs are in effect. And because the plaintiffs challenge the IFRs, their case isn't moot.

The court next held that the plaintiffs had standing, based on their increased costs for their already-existing contraception programs. "The states show, with reasonable probability, that the IFRs will first lead to women losing employer-sponsored contraceptive coverage, which will then result in economic harm to the states" because the states will have to fill the coverage loss through their existing free or subsidized contraceptive programs. 

As to the APA, the court ruled that the plaintiffs were likely to succeed--that HHS violated notice-and-comment rulemaking under the APA. The court held that the government's interests in eliminating regulatory uncertainty, eliminating RFRA violations, and reducing the cost of health insurance were insufficient to bypass notice-and-comment procedures. As to regulatory uncertainty, the court said it "is not by itself good cause" to bypass APA procedures. As to RFRA, the court said that "the agencies' reliance on this justification was not a reasoned decision based on findings in the record." And as to reducing health insurance costs, the court said that "[t]his is speculation unsupported by the administrative record and is not sufficient to constitute good cause." The court also said that the agencies lacked statutory authority to bypass notice-and-comment procedures. 

But the court narrowed the district court's nationwide preliminary injunction, and applied it only to the plaintiff states.

Judge Kleinfeld dissented, arguing that the plaintiffs lacked standing, because "their injury is what the Supreme Court calls 'self-inflicted,' because it arises solely from their legislative decisions to pay" for contraception-access programs.

Court Tosses San Francisco's Challenge to Trump Walk-Back of Regulatory Guidance

Judge Jon S. Tigar (N.D. Cal.) ruled that San Francisco lacked standing to challenge the Trump Administration's rescission of administrative guidance documents related to various federal civil rights and immigration statutes. The ruling is a victory for the Trump Administration and its deregulatory agenda.

The case, San Francisco v. Whitaker, arose out of President Trump's executive order instructing agencies to identify regulatory actions that were "outdated, unnecessary, or ineffective" as candidates for repeal, modification, or replacement. Then-AG Sessions issued a memo stating that DOJ would no longer "issue guidance documents that purport to create rights or obligations binding on persons or entities outside the Executive Branch (including state, local, and tribal governments)." DOJ subsequently announced that it would rescind 25 guidance documents.

San Francisco sued to stop the DOJ from rescinding eight of those, arguing that the rescission was arbitrary and capricious under the Administrative Procedure Act. (The eight relate to the ADA, the FHA, the INA, and various fee and fine practices.)

The court ruled that San Francisco lacked standing. While the court said that San Francisco could assert procedural standing or organizational standing, it still needed to show a harm--and it didn't. The city's theory of harm varied depending on the particular guidance document, but in general the court held that it failed to show that rescission would interfere with its interest in regulation, or increase the risk of enforcement action against it, or that it failed to show a sufficiently tight connection between the rescission and any harm to the city.

The ruling means that the rescission can move forward, ultimately curbing federal regulation of these provisions. Establishing standing to challenge a roll-back on regulations is always trickier than establishing standing to challenge regulations themselves, and it's not clear if or how another plaintiff might show a harm to challenge these or other rescission documents.

Organizations Have Standing to Challenge USDA Inaction on Birds (again), but Lose (again)

Judge Trevor N. McFadden (D.D.C.) ruled in American Anti-Vivisection Society v. USDA that plaintiff organizations had standing to sue the USDA for its 14-year failure to extend protections under the Animal Welfare Act to birds. But at the same time, the court ruled that the plaintiffs' Administrative Procedure Act claims failed.

The case is a reprise of PETA v. USDA, a D.C. Circuit ruling over 3 years ago.

The court recognized the D.C. Circuit's "permissive" rules on organizational standing, and said that while this case presented standing difficulties, it fell in line with PETA:

But the Plaintiffs' organizational standing allegations are similar enough to PETA II to dictate the outcome here. As there, the Plaintiffs have, "at the dismissal stage, adequately shown that the USDA's inaction injured [their] interests and, consequently, [they have] expended resources to counteract those injuries." They have alleged with enough supporting factual allegations that the challenged agency decisions "deny [them] access to information and avenues of redress they wish to use in their routine information-dispensing, counseling, and referral activities." In other words, they have plausibly "alleged inhibition of their daily operations, . . . an injury both concrete and specific to the work in which they are engaged."

This injury--an inability to gather information, publish reports, and help reduce the neglect and abuse of birds--is traceable to the Department's inaction and could be redressed by an order compelling the Department to issue regulations. And the Plaintiffs have pointed to webinars and other educational programs they must produce in the absence of applicable avian regulations. The Court finds that the Plaintiffs have standing and that it has jurisdiction to consider the merits of their arguments.

Nevertheless, the court ruled that the plaintiffs' APA claims failed, because the USDA took the "legally required" action (even if not the bird rules), and because the USDA's inaction isn't a "final agency action."

Fifth Circuit Says No Standing to Challenge Mississippi Flag

The Fifth Circuit ruled that plaintiffs lacked standing to challenge a Mississippi town's decision to fly the state flag over city hall as a violation of the Fair Housing Act. The ruling ends the case.

The plaintiffs in Mississippi Rising Coalition v. City of Ocean Springs, Mississippi, challenged a city council resolution requiring the state flag to be flown over city hall and other municipal buildings. They claimed that flying the flag, which includes the Confederate battle flag, amounted to "racial steering" in violation of the FHA.

But the Fifth Circuit ruled that they lacked both Article III and statutory standing. As to Article III, the court simply pointed to a 2017 ruling, Moore v. Bryant, also denying standing to plaintiffs challenging the state flag, but under equal protection: "That Plaintiff alleges that he personally and deeply feels the impact of Mississippi's state flag, however sincere those allegations are, is irrelevant to . . . standing analysis unless Plaintiff alleges discriminatory treatment." The court said that "[i]f exposure to a flag does not injure a plaintiff for equal protection purposes, exposure to the same flag does not injure a plaintiff for FHA purposes either."

As to statutory standing under the FHA, the court said that flying the flag is not a "discriminatory housing practice," and that the plaintiffs therefore weren't "aggrieved persons" under the Act.

District Court Says Members of Congress Have Standing to Sue President for Emoluments Violations

Steven D. Schwinn, John Marshall Law School

Judge Emmet G. Sullivan (D.D.C.) ruled today in Blumenthal v. Trump that members of Congress have standing to sue President Trump for violations of the Foreign Emoluments Clause. At the same time, Judge Sullivan declined to rule on the President's other three arguments for dismissal--that the plaintiffs lack a cause of action, that they've failed to state a claim (because the President's business interests aren't "emoluments" under the Clause), and that injunctive relief sought is unconstitutional. Thus, the ruling is a set-back for the President, but Judge Sullivan may yet end up dismissing the case on other grounds.

We posted here on the earlier district court ruling that another Emoluments case, brought by Maryland and D.C., can move forward.

The Congressmembers' case alleges that President Trump's overseas business holdings and properties generate income and benefits for the President, without the consent of Congress, in violation of the Foreign Emoluments Clause. That Clause says:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

The 201 plaintiffs seek declaratory and injunctive relief. They claimed that they were harmed (for standing purposes) because the President, by failing to seek congressional consent, denied each of them a "vote on the record about whether to approve his acceptance of a prohibited foreign emolument."

The court agreed:

[E]ach time the President allegedly accepts a foreign emolument without seeking congressional consent, plaintiffs suffer a concrete and particularized injury--the deprivation of the right to vote on whether to consent to the President's acceptance of the prohibited foreign emolument--before he accepts it. And although the injury is an institutional one, the injury is personal to legislators entitled to cast the vote that was nullified.

The court went on to say that standing didn't violate the separation of powers. The court held that the plaintiffs lacked an alternative legislative remedy, and that the case was appropriate for judicial review.

Three Judge Court Invalidates North Carolina Redistricting Plan Redux

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

 In an extensive opinion, a three judge court in Common Cause v. Rucho (& League of Women Voters v. Rucho) held that North Carolina's 2016 redistricting plan was a product of partisan gerrymandering and violates the Equal Protection Clause, the First Amendment, and Article I of the Constitution. 

The opinion is almost 300 pages with an additional comparatively brief 25 plus page concurring and dissenting opinion, but the three judge court is often discussing familiar matters. Recall that the court had reached this result in January 2018.  However, recall also that the United States Supreme Court issued a stay shortly thereafter.  In July 2018, the United States Supreme Court vacated the three judge court's decision in Rucho in light of  Gill v. Whitford (2018), which, the three judge court states, "addressed what evidence a plaintiff must put forward to establish Article III standing to lodge a partisan vote dilution claim under the Equal Protection Clause." The three judge court's opinion in Rucho holds that standing was satisfied under the Gill test as to equal protection and further that "Gill did not call into question—and, if anything, supported—this Court’s previous determination that Plaintiffs have standing to assert partisan gerrymandering claims under Article I and the First Amendment." 

As for the merits, Gill v. Whitford is not particularly useful; as we said when Gill was decided, it (with the per curiam decision in Benisek v. Lamone, "leave the constitutionality of partisan gerrymandering as unsettled as before." Thus, the three judge court had little guidance to reconsider its previous conclusions.

Perhaps the most noteworthy aspect of the three judge court's decision today in Rucho, however, is the remedy: the court notes that the circumstances are unusual and writes:

we decline to rule out the possibility that the State should be enjoined from conducting any further congressional elections using the 2016 Plan. For example, it may be possible for the State to conduct a general election using a constitutionally compliant districting plan without holding a primary election. Or, it may be viable for the State to conduct a primary election on November 6, 2018, using a constitutionally compliant congressional districting plan, and then conduct a general election sometime before the new Congress is seated in January 2019. Accordingly, no later than 5 p.m. on August 31, 2018, the parties shall file briefs addressing whether this Court should allow the State to conduct any future election using the 2016 Plan. Those briefs should discuss the viability of the alternatives discussed above, as well as any other potential schedules for conducting elections using a constitutionally compliant plan that would not unduly interfere with the State’s election machinery or confuse voters. Regardless of whether we ultimately allow the State to use the 2016 Plan in the 2018 election, we hereby enjoin the State from conducting any elections using the 2016 Plan in any election after the November 6, 2018, election.

[emphasis in original].

The November election is in 70 days.

Fifth Circuit Rebuffs Faculty Challenge to Campus Concealed Carry Law

Steven D. Schwinn, John Marshall Law School

The Fifth Circuit last week rejected a challenge by faculty to a Texas law that allows concealed carry in public university classrooms. The ruling ends the challenge, and upholds the state Campus Carry Act and University of Texas at Austin policies permitting concealed carry.

The case, Glass v. Paxton, arose when faculty at the University of Texas challenge the Campus Carry Act and UT policies that permitted concealed carry for certain students on campus. Faculty challenged the Act under the First Amendment, Second Amendment, and Equal Protection Clause. The court rejected each of those challenges.

As to the First Amendment, the court held that the plaintiff lacked standing because she couldn't show, under the "certainly impending" standard of Amnesty International, "that a license-holder will illegally brandish a firearm in a classroom."

As to the Second Amendment, the court rejected the plaintiff's argument that the concealed carry on campus wasn't "well regulated." The court said that the "well regulated" requirement is part of the Second Amendment's prefatory clause, and that the Court in Heller ruled "that the Second Amendment's prefatory clause does not limit its operative clause."

Finally, as to equal protection, the court said that Texas's interests in the law--public safety and self-defense--were sufficient to pass rational basis review. "Here, Texas's rationales are arguable at the very least."

Federal Judge: Injunction Against Transgender Military Ban Retained

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

United States District Judge Colleen Kollar-Kotelley has reaffirmed the injunction of  the ban on transgender individuals in the military, first announced on Twitter by the President in Doe v. Trump in two opinions.  Recall that in October, the judge issued a lengthy opinion and a preliminary injunction against the ban as likely to violate equal protection.

The case returned to Judge Kollar-Kotelley after an unsuccessful appeal and attempt to stay the preliminary injunction. The government moved to dismiss, essentially rearguing its contentions regarding standing.

In a 34 page opinion, the judge again rejected these arguments. But the government newly argued for dismissal and dissolution of the preliminary injunction because the 2018 "Mattis Implementation Plan" represents a “new policy” divorced and distinct from the President’s 2017 policy directives that were previously enjoined by this Court, and that the Mattis Implementation Plan does not harm the Plaintiffs in this case. However, the judge held that "whatever legal relevance the Mattis
Implementation Plan might have, it has not fundamentally changed the circumstances of this lawsuit such that Plaintiffs’ claims should be dismissed for lack of jurisdiction, or that the need for the Court’s preliminary injunction has dissipated." In evaluating the Mattis Implementation Plan, the judge stated:

the Mattis Implementation Plan in fact prohibits transgender military service—just as President Trump’s 2017 directives ordered. It is true that the plan takes a slightly less direct approach to accomplishing this goal than the President’s 2017 tweet and memorandum. Instead of expressly banning all “transgender individuals” from military service, the Mattis Implementation Plan works by absolutely disqualifying individuals who require or have undergone gender transition, generally disqualifying individuals with a history or diagnosis of gender dysphoria, and, to the extent that there are any individuals who identify as “transgender” but do not fall under the first two categories, only allowing them to serve “in their biological sex” (which means that openly transgender persons are generally not allowed to serve in conformance with their identity).

[emphasis in original]. In short, she concluded that "whatever legal relevance the Mattis Implementation Plan and associated documents might have, they are not sufficiently divorced from, or different than, the President’s 2017 directive." 

However, in a separate and relatively brief opinion, she did grant the government's motion to dismiss Donald Trump as a defendant. The government moved to dismiss the president as a defendant and for a protective order regarding discovery. Judge Kollar-Kotelly concluded that

Through this lawsuit, Plaintiffs ask this Court to enjoin a policy that represents an official, non-ministerial act of the President, and declare that policy unlawful.  Sound separation-of-power principles counsel the Court against granting these forms of relief against the President directly.

She noted that confrontation between the judicial and executive branch should be avoided whenever possible, but such confrontation 

can be easily avoided here, because dismissing the President will have little or no substantive effect on this litigation. Plaintiffs argue that the acts of the President himself are central to this case, and the Court agrees. But dismissing the President as a Defendant does not mean that those acts will not be subject to judicial review. The Court can still review those acts and, if Plaintiffs are successful in proving that they are unconstitutional, Plaintiffs can still obtain all of the relief that they seek from the other Defendants.

Given that the President is no longer a defendant, the judge ruled the motion for a protective order regarding discovery was moot, but

the Court reiterates that dismissing the President as a party to this case does not mean that Plaintiffs are prevented from pursuing discovery related to the President. The Court understands that the parties dispute whether discovery related to the President which has been sought by Plaintiffs is precluded by the deliberative process or presidential communication privileges, and the Court makes no ruling on those disputes at this point.

While the plaintiffs had argued that dismissing the president was not warranted, Judge Kollar-Kotelly's dismissal has little bearing on the ultimate resolution of the case, a conclusion she reiterated several times. It also has little effect on the present status of the case; the accompanying order emphasized that "The injunction remains in force as it applies to all other Defendants" (italics in original).

 

[image via]

Fifth Circuit Strikes State "Threat" Law

Steven D. Schwinn, John Marshall Law School

The Fifth Circuit ruled in Seals v. McBee that Louisiana's statute that criminalizes "threats" is unconstitutionally overbroad in violation of the First Amendment. The ruling strikes the state law.

The case arose when officers arrested Travis Seals for an unspecified reason and claimed that Seals resisted arrest and threatened them (with physical harm and legal action). The DA declined to prosecute. Seals then filed a civil action against officers for malicious prosecution, conspiracy, and a First Amendment violation. In particular, Seals said that the Louisiana statute that criminalizes "threats" was unconstitutionally overbroad. (The statute criminalizes "public intimidation," defined as "the use of violence, force, or threats upon [specified persons, including public officers and public employees] with the intent to influence his conduct in relation to his position, employment, or duty.)

The court first ruled that Seals had standing to sue, even though the DA disavowed bringing charges (but also that the government could bring charges as late as December 2019):

Seals's position mirrors that of the plaintiffs in United Farm Workers. He already bet the farm. And when he violated Section 14:122, he was arrested. Louisiana has disavowed prosecution but concedes that Seals actually violated the statute and is legally subject to prosecution. Moreover, Louisiana has introduced evidence of other enforcement actions that are currently being pursued. Viewed alongside a review of Louisiana's caselaw, that evidence shows that Section 14:122 is not a mere paper tiger but has a real history of enforcement. Because the scales are at least as balanced as in United Farm Workers, Seals, too, has standing to challenge Section 14:122.

The court ruled next that the statute was substantially overbroad in violation of free speech:

"[H]ere the statute sweeps so broadly, encompassing any number of constitutionally protected threats, such as to boycott communities, to run against incumbents, and to sue police officers. Hence it is overbroad."

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

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

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.

 

Eleventh Circuit Allows Equal Protection Challenge to Alabama's Minimum Wage and Right to Work Act

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

In its opinion in Lewis v. Governor of Alabama, a unanimous panel of the Eleventh Circuit has reversed the dismissal of a claim that the Alabama Minimum Wage and Right to Work Act, preempting the City of Birmingham's ordinance raising the minimum wage to $10.10, violated the Equal Protection Clause.

After considering standing and Eleventh Amendment arguments, the panel's opinion, authored by Judge Charles Wilson, proceeded to the "heart of the matter" involving the district judge's dismissal of the plaintiffs' equal protection claims that the Minimum Wage Act purposely discriminates against Birmingham’s black citizens by denying them economic opportunities on account of their race;  and the Act violates the political-process doctrine by transferring control from the majority-black Birmingham City Council to the majority-white Alabama Legislature.

The court found that plaintiffs stated a claim on the intentional discrimination claim, applying the factors of Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997). The court found that there was definitely a racial impact and that the Act "bears more heavily on one race than another.”The court also considered  "the rushed, reactionary, and racially polarized nature of the legislative process; and Alabama’s historical use of state power to deny local black majorities authority over economic decision-making."  The court noted that the state's Act "responded directly to the legislative efforts of the majority-black Birmingham City Council, which represents more black citizens (and more black citizens living in poverty) than any other city in Alabama" and was "introduced by a white representative from Alabama’s least diverse area, with the help of fifty-two other white sponsors, and was objected to by all black members of the House and Senate. And it was accelerated through the legislative process in sixteen days with little or no opportunity for public comment or debate." The court concluded that these facts "plausibly imply discriminatory motivations were at play." Moreover, the court found that the district judge applied the incorrect legal standard when evaluating plaintiffs' complaint, a "clearest proof" standard "[r]ecklessly plucked from an unrelated line of precedent" and "contrary to decades of established equal protection jurisprudence."

However, the court affirmed the dismissal of plaintiffs' equal protection claim based on political process, despite the facts, because "to the extent that the plaintiffs allege that the minimum wage policy was 'racialized' because the 'Birmingham African-American community strongly favored' it, that argument clashes with the Supreme Court’s clear instructions" in Schuette v. BAMN (2014). 

Thus, the case was remanded and can move forward on the "plausible claim that the Minimum Wage Act had the purpose and effect of depriving Birmingham’s black citizens equal economic opportunities on the basis of race, in violation of the Equal Protection Clause of the Fourteenth Amendment."