Constitutional Law Prof Blog

Court to Hear Arguments in Texas Abortion Cases

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

The Supreme Court will hear oral arguments tomorrow in the Texas abortion cases. Here's my oral argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

Abortion Rights

Can federal courts hear challenges by private plaintiffs or the federal government to halt the enforcement of a law that authorizes private citizens to sue doctors for providing an abortion after six weeks of pregnancy?

Case at a Glance

Texas’s S.B. 8 prohibits a doctor from performing an abortion after about six weeks of pregnancy, in plain violation of settled Supreme Court precedents. At the same time, the law is designed to foreclose traditional channels of judicial review and effectively prevent federal courts from hearing challenges to it. S.B. 8 does this by authorizing private plaintiffs (and not state officials) to enforce its ban by suing doctors who provide an abortion after six weeks of pregnancy for civil damages. Taken together, S.B. 8’s abortion ban and its outsourced enforcement have achieved their objective: abortions have effectively stopped in Texas. And the federal appeals courts, citing procedural hurdles, have so far declined to intervene.

INTRODUCTION

S.B. 8 is a flat violation of a woman’s fundamental right to an abortion under Roe v. Wade and Planned Parenthood v. Casey. Ordinarily, such a law would be subject to federal judicial review. But S.B. 8’s enforcement mechanism—private lawsuits against abortion providers—is specifically designed to thwart federal judicial review. These cases test whether abortion-rights advocates and doctors or the federal government can nevertheless sue in federal court to stop the law.

ISSUE

Can abortion-rights advocates and abortion doctors or the federal government sue in federal court to halt enforcement of Texas’s S.B. 8?

FACTS

Texas’s S.B. 8 is an unusual, even unprecedented, act. On its face, S.B. 8 prohibits a physician from knowingly performing an abortion after the detection of a fetal heartbeat, usually around six weeks into a pregnancy, before most women even know that they are pregnant. It contains no exceptions for rape or incest. And it provides only a limited and ill-defined exception for a “medical emergency.”

On its face, that’s a flat violation of a woman’s fundamental right to an abortion. Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood v. Casey, 505 U.S. 833 (1992), establish that government can regulate abortion before a fetus is viable (that is, before it is able to survive outside the womb), usually around 22 to 24 weeks into the pregnancy, so long as the regulation does not create an “undue burden” on a woman’s access to abortion. S.B. 8’s ban on abortions after six weeks of pregnancy plainly constitutes an undue burden on a woman’s access to abortion before viability. In other words, S.B. 8 plainly violates Roe and Casey.

But that’s not why S.B. 8 is unusual. Indeed, a host of states have enacted abortion bans that plainly constitute an undue burden on a woman’s access to abortion before viability. They have enacted such laws for the stated purpose of challenging Roe v. Wade itself, and persuading the Court to overturn the case. In fact, the Court will consider such a law next month, when it hears oral arguments in Dobbs v. Jackson Woman’s Health Organization, a case testing Mississippi’s ban on abortions after 15 weeks of pregnancy. S.B. 8’s plain violation of Roe and Casey doesn’t make the law unusual; it makes it a sign of our times.

So here’s why S.B. 8 is unusual, even unprecedented: it outsources enforcement. In particular, S.B. 8 specifically prohibits state officials from enforcing the ban, which is the usual way that states enforce their laws, and instead authorizes “any person” to sue an abortion provider who provides an abortion after six weeks of pregnancy. It also authorizes “any person” to sue anyone who “aids or abets” an abortion, or even intends to aid or abet an abortion, after six weeks of pregnancy. (S.B. 8 prohibits a plaintiff from suing the woman herself, however.) A plaintiff in these suits need not have any connection to the abortion, or even any connection to Texas. They can get injunctive relief, stopping the defendant from further violating S.B. 8. They can also recover a minimum of $10,000 for each abortion, plus costs and attorney’s fees. That alone creates a strong financial incentive for doctors to stop performing abortions after six weeks of pregnancy.

But there’s more. S.B. 8 prohibits a defendant in these actions from claiming that they believed that S.B. 8 was unconstitutional. (In other words, S.B. 8 purports to stop potential defendants from raising this argument as a defense in an S.B. 8 lawsuit.) And it restricts (although it apparently does not fully prohibit) a defendant from arguing that S.B. 8 creates an undue burden on a woman’s right to abortion. S.B. 8 also prohibits a court from awarding attorney’s fees or court costs to a defendant, even if the defendant prevails. As a result, a prevailing defendant—even against an obviously spurious lawsuit—must cover all costs and attorney’s fees to defend the action. That creates a strong financial incentive for doctors to stop performing all abortions.

Finally, yet more. S.B. 8’s venue rules allow plaintiffs to strategically file their cases in Texas courts that are most amendable to their claims, and to block a defendant’s attempt to transfer to another court. Moreover, S.B. 8’s issue- and claims-preclusion provisions seemingly allow an endless line of plaintiffs to sue an abortion provider, or anyone who aids or abets an abortion, even for the same abortion. (At the same time, another provision of the act says that “a court may not award relief . . . if a defendant demonstrates that the defendant previously paid the full amount of statutory damages . . . in a previous action for that particular abortion . . . .” Taken together, the provisions seem to allow a variety of plaintiffs to sue a defendant for the same abortion, but restrict the court in awarding relief if a defendant has already paid in an earlier case.)

In short, Texas designed S.B. 8 to violate a woman’s fundamental right to abortion under Roe and Casey; effectively to halt abortions in the state; and specifically, to thwart judicial review. That’s not commentary; it’s exactly what Texas legislators said when they enacted the law.

Anticipating these results, Whole Woman’s Health, along with Texas abortion providers and individuals and organizations that support abortion patients, sued to stop S.B. 8 before it went into effect, on September 1, 2021. The plaintiffs sued several state officials, including state court clerks and judges, and a private person, on the ground that they would enforce S.B. 8.

The district court denied a motion to dismiss the case. The Fifth Circuit stayed the district court proceedings and rejected the plaintiffs’ motion for an injunction pending appeal. On emergency appeal, the Supreme Court then declined to grant an injunction against S.B. 8 or to vacate the Fifth Circuit’s stay pending appeal. The Court said that federal courts have the power to enjoin individuals, not laws. It also suggested that the plaintiffs sued the wrong defendants, because “it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law . . . .” (Four justices sharply dissented.) The ruling meant that S.B. 8 went into effect on September 1.

Soon after the Court declined to intervene, the federal government sued Texas itself (and not individuals), arguing that S.B. 8 was unconstitutional. The district court granted the government’s motion for a preliminary injunction, but the Fifth Circuit stayed the injunction pending appeal.

The Supreme Court then agreed to hear both cases and expedited the briefing and arguments. Each case raises the questions whether the federal courts can hear the plaintiffs’ challenges to S.B. 8, and whether they can halt enforcement by the defendants.

CASE ANALYSIS

At their most fundamental level, both cases test whether the federal courts can hear the plaintiffs’ challenges and enjoin the enforcement of S.B. 8. That’s a contested question, because Texas, by outsourcing S.B. 8’s enforcement to private plaintiffs, diluted and dispersed the enforcement responsibility, making it hard to identify actual defendants before anybody files an S.B. 8 lawsuit. And because S.B. 8’s financial incentives all but prohibit doctors from performing any abortion in the first place, S.B. 8 ensures that there will be few, if any, S.B. 8 lawsuits where a doctor could challenge S.B. 8 after enforcement. (In any event, S.B. 8 limits how doctors can raise challenges in those lawsuits.)

Despite S.B. 8’s design to thwart federal judicial review, the plaintiffs in both cases contend that the federal courts can hear their cases; and because of S.B. 8’s design to thwart judicial review, the plaintiffs argue that the federal courts must hear their cases. Texas, for its part, contends that S.B. 8 technically allows judicial review through S.B. 8 cases themselves—and not in through these federal court cases—even though S.B. 8 itself limits or effectively eliminates that option.

The two cases raise separate but overlapping arguments. (Texas filed a single brief covering both cases.) Because there are some differences, however, we summarize the arguments in the cases separately. Let’s start with Whole Woman’s Health, then we’ll examine United States v. Texas.

Whole Woman’s Health v. Jackson

The plaintiffs argue first that their claim “fit[s] neatly” with 42 U.S.C. § 1983, the federal statute that authorizes a civil lawsuit against individuals acting under the authority of state law for violating constitutional rights. They argue that Section 1983 specifically authorizes suits against “judicial officers” acting in their “judicial capacity.” They contend that the “text and purpose” of Section 1983 allows their suit to go forward against the state officials, including the judges, and the private defendant.

The plaintiffs argue next that their suit for injunctive relief against state officers is valid under Ex Parte Young, 209 U.S. 123 (1908). The Court in that case held that a plaintiff can sue a state official for prospective injunctive relief, notwithstanding the state’s general immunity from suits for monetary damages under state sovereign immunity and the Eleventh Amendment. The plaintiffs assert that the court clerks, judges, and state officials who are defendants in this action all play roles, to one degree or another, in S.B. 8’s enforcement, and therefore fall within the Ex Parte Young doctrine. Moreover, the plaintiffs write that “where, as here, a law hamstrings state courts’ ability to provide defendants a fair opportunity to vindicate their rights—all while deputizing millions of private citizens to sue—equity requires that federal courts step in and prevent irreparable constitutional injury.”

Third, the plaintiffs argue that they have standing to sue. They contend that the threat of enforcement of S.B. 8 creates an injury (the lack of access to abortion, as illustrated by the actual injury women suffered after the Court declined to halt S.B. 8’s implementation, and the resumption of abortions during the period of injunction in United States v. Texas); that the defendants, to one degree or another, caused that injury; and that an injunction against the defendants would redress the injury, because it would ensure that women again have access to abortion in Texas. The plaintiffs also say that the defendants’ vigorous defense of S.B. 8 in the courts ensures a “sharp presentation” of the “complex and novel” questions.

Finally, the plaintiffs argue that the Court should uphold the district court injunction in order to “protect federal supremacy from the imminent threat posed by S.B. 8 and copycat bills already under consideration by States seeing what Texas has achieved thus far—enactment of a law that baldly defies this Court’s precedent yet is insulated from effective judicial review.” The plaintiffs contend that if S.B. 8 stands, nothing prohibits states from similarly insulating other state laws that blatantly violate constitutional rights from judicial review simply by outsourcing enforcement, exactly as Texas did here.

In response, Texas argues that the plaintiffs lack standing, and that state sovereign immunity bars their suit. Texas says that state executive officials do not have authority to enforce S.B. 8. As a result, the state says that the plaintiffs lack standing to sue those officials, because their actions cannot cause the plaintiffs any injuries, and any judicial relief would not redress the plaintiffs’ injuries. For the same reason, Texas argues that those officials simply do not fall within Ex Parte Young’s exception to Eleventh Amendment immunity. Texas claims that state judges are neutral adjudicators, not adverse parties (or “judicial enforcers” of S.B. 8), and that they are bound to apply both S.B. 8 and Casey. Given this, Texas concludes that the plaintiffs lack standing, because the plaintiffs’ requested relief—an injunction instructing them to apply Casey—would not redress their alleged harm.

Penny Clarkston, the district clerk of Smith County, Texas, filed her own brief. Mark Lee Dickson, “a pastor and anti-abortion activist,” filed his own brief. They made substantially similar arguments.

United States v. Texas

The government argues first that it has authority to sue Texas in equity to protect its interests. The government says that it can sue in equity to prevent Texas from thwarting judicial review under federal law. It claims that it does not sue merely to enforce its citizens’ constitutional rights, but also to prevent Texas’s “unprecedented attack on the supremacy of the Constitution as interpreted by this Court”—a “distinct sovereign interest” that forms the basis of its suit in equity. The government contends that it also has an interest in preventing S.B. 8 from interfering with its own programs that “require federal employees and contractors to arrange, facilitate, or pay for abortions in some circumstances,” and holding federal employees and contractors liable “for carrying out their federal duties.”

The government argues next that the federal courts have the power to grant relief in favor of the government and against Texas. The government claims that under the Federal Rules of Civil Procedure, an injunction against Texas can also bind state officers and agents and “other persons who are in active concert or participation” with the state or its officers. According to the government, this means that an injunction can bind plaintiffs who bring S.B. 8 suits, court clerks who accept those suits, judges who hear the cases, and other state officials who would enforce any judgments. The government acknowledges that some of this relief may be unusual. But so is S.B. 8. “And having chosen an unprecedented scheme in a deliberate effort to thwart ordinary judicial review, Texas should not be heard to complain when the federal courts exercise remedial authorities that are usually unnecessary.”

Finally, the government argues that the federal courts can grant declaratory relief (declaring that S.B. 8 is invalid), because the government’s power to bring this case in equity “also allows it to seek a declaratory judgment.” The government asserts that declaratory relief would arm abortion providers with a defense in S.B. 8 suits against them, providing “another reason why those suits must be dismissed.” But in any event, the government claims that declaratory relief is no substitute for injunctive relief. That’s the only way “[t]o halt the irreparable injury arising from Texas’s defiance of this Court’s precedent and systematic denial of constitutional rights within the State’s borders . . . .”

Texas counters that the government lacks standing for the same reasons why the Whole Woman’s Health plaintiffs lack standing, but more. Texas says that it does not cause the government harm “by the mere existence of an allegedly unconstitutional state law that may affect private parties.” The state says that the government’s suit amounts to a request for an “advisory opinion” from the Court, and that Court lacks authority under Article III of the Constitution to issue such an opinion. Texas claims that the district court was wrong to hold that the government could “skirt its obligation to show its own cognizable injury” by drawing on the government’s interest in protecting U.S. citizens under federal supremacy principles. The state says that the Supreme Clause does not grant the government a right to sue to protect U.S. citizens; instead, the government, like private parties, must allege that it suffered a harm to itself.

Texas argues next that the government lacks a statutory or equitable basis for requesting an injunction. The state says that the “numerous statutory mechanism” for enforcing constitutional rights do not authorize the government to sue to vindicate U.S. citizens’ substantive-due-process rights. And it says that equitable principles do not authorize the government to sue to vindicate U.S. citizens’ rights just because the state denied those citizens the ability to enforce their own rights. Texas asserts that if the plaintiffs in Whole Woman’s Health want to protect their rights, they can do so as state-court defendants in S.B. 8 civil actions. The government lacks authority to bring this action to enforce their rights for them.

Third, Texas argues that S.B. 8 does not violate the Constitution. The state claims that it has incorporated Casey’s “undue burden” test into S.B. 8 by allowing an abortion doctor to use “undue burden” as a defense in an S.B. 8 action. The state writes that under S.B. 8, “Texas may not impose liability in cases where doing so would cause an undue burden on a woman seeking an abortion—but neither private parties nor the Department of Justice can compel Texas to support abortion beyond that obligatory floor.” Texas says that this comports with Casey, and does not conflict with federal programs in violation of federal supremacy. “Far from discriminating against the federal government, SB 8 is subject to a state-law presumption that it will not apply to the federal government.”

Finally, Texas argues that the district court’s injunction against “the State” amounts to an impermissible injunction against a law, not a person. That’s because none of the state executive defendants can enforce S.B. 8; federal courts cannot enjoin state courts to apply state and federal law (state courts already do that); and private actors are not “state actors” just because they bring an S.B. 8 suit against other private parties.

Three private citizens—Jeff Tuley, Erick Graham, and Mistie Sharp—filed a separate brief as intervenors, making substantially similar arguments. They claim that they intended to bring S.B. 8 suits only against abortion providers for abortions not covered by Casey, and so also argue that the government cannot sue to halt their S.B. 8 suits “over conduct that is unprotected by the Constitution.”

SIGNIFICANCE

Everybody agrees that S.B. 8 is singular and unprecedented. It plainly violates a woman’s fundamental right to abortion, and, by outsourcing enforcement to private plaintiffs, it thwarts traditional channels of judicial review. For Whole Woman’s Health and the government (and a host of others), this is the problem. For Texas (and a host of others), this is the point.

Whether problem or point, S.B. 8 had its predictable and intended results: It effectively halted abortions in Texas. Texas women who seek an abortion today must travel to neighboring states or other locations where they can still get an abortion. (And they have, flooding abortion providers in neighboring states.) Or, if they cannot afford the time away from work or family or the expense of travel (as is so often the case), or if their health prevents travel, they must go without a doctor-provided abortion.

Time is obviously of the essence, in two ways. On the front end, many or most women don’t even discover their pregnancy until after the sixth week, when S.B. 8 bans abortion. As a result, by the time they know they’re pregnant, many or most women effectively cannot now obtain an abortion in Texas. On the back end, even under Roe and Casey, states can ban abortion entirely after viability, when a fetus can survive outside the womb. As a result, Texas women who seek a doctor-provided abortion must find an out-of-state alternative before about 22 or 24 weeks of pregnancy. All this leaves a narrow window for pregnant women in Texas to exercise their fundamental right to abortion. And, again, that window is only available to Texas women who can travel out of state.  

All this is at issue in the case. If the Court rules that federal courts cannot hear the plaintiffs’ cases and halt enforcement of H.B. 8, abortion will remain effectively unavailable in Texas. (There’s a chance that the Court could also decide whether Roe and Casey remain good law. But given that the Court is slated to hear a direct challenge to Roe this Term (oral arguments come just next month), this seems unlikely.)

That’s not a remote possibility. The Court already declined to halt S.B. 8 in Whole Woman’s Health, over the sharp dissents of four justices. (Chief Justice John Roberts joined Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan in various dissents.) One or more of the justices who voted with the majority in that ruling would have to change sides, or find a distinction that persuades them that the courts can hear the government’s case, even if not Whole Woman’s Health’s case.

Such a ruling could have a profound impact on the right to abortion, even if the Court declines to overturn Roe and Casey. Several other states are already considering laws like Texas’s and will quickly enact those copycat laws if the Court rules against the plaintiffs. This could effectively eliminate abortions in those states, just as S.B. 8 effectively eliminated abortions in Texas.

More, such a ruling could have profound impacts well outside the area of abortion rights. As the plaintiffs and several amici point out, if Texas can engineer a law to ban abortion and effectively evade judicial review, then any state can engineer a law to ban any fundamental right and effectively evade judicial review. And there’s no daylight between a woman’s fundamental right to an abortion and any other fundamental right favored by folks with different political stripes. If you have any doubt, check out the amicus curiae brief of the Firearms Policy Coalition in the Whole Woman’s Health case, for example.

Finally, the Court’s rulings in these cases, and in Dobbs, the Mississippi case up next month, could have significant effects on the 2022 mid-term elections. If the Court strikes these state laws, its ruling could mobilize abortion opponents at the polls. If it upholds them, the rulings could mobilize abortion-rights advocates.

All this is to say that these cases are easily among the most important on the Court’s 2021-22 docket so far.

Fifth Circuit Tosses Case Challenging Removal of Confederate Monument

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

The Fifth Circuit dismissed a case challenging San Antonio's removal of a monument of a confederate soldier for lack of standing. The ruling ends the challenge. (The statue is already gone.)

The case, Albert Sidney Johnston v. San Antonio, arose when the city removed a confederate monument in a public park. ASJ sued, arguing that the removal violated the First and Fourteenth Amendments.

The court held that ASJ lacked standing. It recognized that ASJ is the successor organization to the Barnard E. Bee chapter of the United Daughters of the Confederacy, which erected the monument in the first place. But it said that ASJ had no property interest in the public park (because "the land was generally inaliable and unassignable") and no right to use the land; and therefore the organization couldn't allege a harm under the First or Fourteenth Amendments.

Second Circuit Tosses Suit Challenging Connecticut Magnet School Racial Quota

Steven D. Schwinn, University of Illinois School of Law

The Second Circuit ruled yesterday that a nonprofit lacked standing to challenge a Connecticut Department of Education rule that interdistrict magnet schools enroll at least 25 percent non-Black and non-Latinx students. The ruling leaves the rule on the books.

The case, CTPU v. Russell-Tucker, arose when the Commissioner of the Connecticut State Department of Education issued a memo that required all interdistrict magnet schools to enroll at least 25 percent non-Black and non-Latinx students. The Connecticut Parents Union, a non-profit founded "to protect . . . children's educational rights thus ensuring that neither race, zip-code, nor socio-economic status is a predictor of a child's success," sued, arguing that the memo violated equal protection.

The defendants moved to dismiss, arguing that CTPU lacked standing. The court agreed.

The court held that CTPU failed to allege a sufficient harm to its operations. (CTPU did not allege standing on behalf of its members.) The court acknowledged that an organization can establish standing when it "diverts its resources away from its [other] current activities," or otherwise incurs "some perceptible opportunity cost." But it held that CTPU failed to meet that standard here. The court said that CTPU

fail[ed] to identify any restrictions on its ability to perform the core activities--such as meetings, lectures, and general organizing--by which it pursued its mission prior to the [memo]. To the extent CTPU claims that [the memo] triggered an increased demand for parent counseling, CTPU fails to sufficiently plead that any resulting costs were material. Further, even construing the record in CT{U's favor, as we must, it is clear that CTPU incurred costs because it decided to initiate a campaign against [the memo] to advance its own "abstract social interests," thus any costs CPTU incurred from this campaign were not involuntary.

The ruling obviously doesn't prevent another person or organization who has been injured by the memo from suing. But since CTPU's lawsuit, the schools revised the memo to remove any penalties for noncompliance, likely raising other standing challenges for potential plaintiffs.

Court Kicks Obamacare Challenge for Lack of Standing

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

The Supreme Court ruled today that plaintiffs lacked standing to challenge the Affordable Care Act's zeroed-out minimum coverage provision (or "individual mandate"), and the rest of the Act, too. The ruling deals a sharp blow to opponents of the ACA. It means that the ACA--all of it--stays on the books.

The case, Texas v. California, started when Congress zeroed-out the ACA's minimum coverage provision. Remember that Congress couldn't muster the votes to overturn the ACA, so instead it set the tax-penalty for the minimum coverage provision at $0. The move invited opponents of the Act to challenge the provision as unconstitutional--exceeding congressional authority under its taxing power, because, well, the provision couldn't raise any revenue, and therefore couldn't be a "tax." (Recall that the Court in NFIB upheld the minimum coverage provision under Congress's taxing power.) The move also invited opponents to claim that the entire ACA was unconstitutional, because the rest of the well-integrated, closely-knit Act couldn't be severed from the minimum coverage provision. (Recall that the government originally argued that the minimum coverage provision was a necessary part of the larger ACA in order to provide universal access to health insurance while at the same time keeping costs affordable. Opponents picked up on this and argued that the minimum coverage provision couldn't be severed from the community-rating provision, the non-discrimination provision, and the rest of the Act (including things like the requirement that insurers allow young adults to stay on their parents' insurance until age 26).

More than a dozen states, led by Texas, and two individuals accepted the invitation and sued. They won big in the district court (which held the minimum coverage provision unconstitutional and inseverable from the rest of the Act). The Fifth Circuit agreed that the minimum coverage provision was unconstitutional, but remanded for further consideration of severability.

The Court today didn't touch the merits issues and instead ruled that the plaintiffs lacked standing to sue. The Court said that the two individual plaintiffs lacked standing, because the zeroed-out minimum coverage provision didn't, and couldn't, harm them, because the government had no way to enforce it. The Court wrote that "there is no possible Government action that is causally connected to the plaintiffs' injury--the costs of purchasing health insurance." Without connecting the minimum coverage provision to their harm, the plaintiffs lacked standing.

The Court said that the states lacked standing, too, but for different reasons. First, the Court held that the minimum coverage provision didn't cause the states to incur costs for increased enrollment in state-operated medical insurance programs (like CHIP). The Court said that the states "failed to show how this injury is directly traceable to any actual or possible unlawful Government conduct in enforcing [the minimum coverage provision]," and that in any event the states failed to show that individuals actually enrolled in state medical insurance programs because of the zeroed-out provision. Next, the Court held that the provision didn't cause them to incur costs directly, as insurers of their own employees, because other portions of the Act (not the minimum coverage provision) required them to provide insurance to their own employees.

Justice Alito wrote a sharp dissent, joined by Justice Gorsuch. Justice Alito argued that the states had standing, because "[t]he ACA saddles them with expensive and burdensome obligations, and those obligations are enforced by the Federal Government." He said that states incur costs for complying with ACA reporting requirements, for providing health insurance to their employees, and for complying with other portions of the ACA--all of which are connected to, and inseverable from, the challenged minimum coverage provision. Justice Alito went on to argue that the minimum coverage provision was unconstitutional, and other ACA obligations that harmed the states were inseverable from the minimum coverage provision, and therefore must go, too.

Circuit Judge Takes on Standing Doctrine

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

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.

Second Circuit Recognizes Standing for Increased Risk of Identity Theft for Unauthorized Data Disclosure

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

The Second Circuit recognized that plaintiffs in an unauthorized-disclosure-of-data case may have standing based on an increased risk of identity theft. In so ruling, the Second Circuit joins several other circuits in recognizing standing based on an imminent risk of identity theft in data breach cases. (At least three circuits have suggested that there's a split on the issue, but the Second Circuit denied that, saying that "in actuality, no court of appeals has explicitly foreclosed plaintiffs from establishing standing based on a risk of future identity theft--even those courts that have declined to find standing on the facts of particular cases.")

At the same time, the court held that the particular plaintiffs in the case failed sufficiently to establish such an injury.

The case, McMorris v. Carlos Lopez & Associates, LLC, arose when an employee at CLA accidentally sent out an e-mail to all employees that included Social Security Numbers, dates of birth, and other personal information of current and former employees. Three individuals filed a class-action against CLA. As the parties moved toward settlement, the district court ruled that the plaintiffs lacked standing.

The Second Circuit recognized that plaintiffs in a case like this could have standing. The court looked to three non-exhaustive factors in sorting this out: "(1) whether the plaintiffs' data has been exposed as the result of a targeted attempt to obtain that data; (2) whether any portion of the dataset has already been misused, even if the plaintiffs themselves have not yet experienced identity theft or fraud; and (3) whether the type of data that has been exposed is sensitive such that there is a high risk of identity theft or fraud."

The court ruled that the plaintiffs in this case, however, failed to establish imminent harm of identity theft.

The court also rejected the plaintiffs' theory that the data breach caused them to take action to protect themselves against identity theft. The court said that the plaintiffs had to allege a substantial risk of future identity theft in order to use their protective actions as a basis for standing. If it were otherwise, the court said, plaintiffs could harm themselves into standing based only on fears of hypothetical future injuries.

Court Says Request for Nominal Damages is Enough for Standing

Steven D. Schwinn, University of Illinois Chicago Law School

The Supreme Court ruled last week that a plaintiff's request for nominal damages is sufficient to satisfy standing requirements and keep the case moving forward. The ruling is a significant win for the plaintiffs in the case, and for civil-rights plaintiffs generally; but it says nothing on the merits of the plaintiffs' claim. Instead, the Court remanded the case for further proceedings.

The case, Uzuegbunam v. Presczewski, arose when a couple of students at Georgia Gwinnett College tried to engage fellow students and distribute religious literature in the school's free-speech zone. Campus officers stopped them, however, citing campus policy that prohibits speech that "disturbs the peace and/or comfort of person(s)." The plaintiffs sued College officials for injunctive relief and nominal damages. (Civil-rights plaintiffs often request nominal damages, $1.00, when their harm can't be quantified.) Rather than defending the policy on the merits, the College changed it, and moved to dismiss the case, arguing that the students' claim for injunctive relief was now moot, and that the students lacked standing based on their sole remaining claim for nominal damages.

The Court disagreed. Justice Thomas wrote for the 8-1 Court that a plaintiff continues to have standing to sue even when the plaintiff seeks only nominal damages. Justice Thomas said that courts at common law recognized suits for nominal damages, and that the common law did not require a plaintiff to seek compensatory damages in order to claim nominal damages.

Chief Justice Roberts was the lone dissenter. He argued that the plaintiffs lacked standing because "an award of nominal damages does not alleviate the harms suffered by a plaintiff, and is not intended to." More, "If nominal damages can preserve a live controversy, then federal courts will be required to give advisory opinions whenever a plaintiff tacks on a request for a dollar."

The case now goes back to the district court for further consideration. The Court said that one plaintiff--the one who actually spoke--stated a cognizable injury that could be redressed with nominal damages. If that plaintiff meets other all other requirements, his case will go to the merits. But the Court instructed the district court to consider whether the other plaintiff--the one who didn't speak, and only alleged that he was deterred from speaking--suffered a constitutional violation.

Court Kicks Gohmert's Election Case Against Pence

Steven D. Schwinn, University of Illinois Chicago Law School

Judge Jeremy D. Kernodle (E.D. Tx.) dismissed the lawsuit headed by Representative Louie Gohmert against Vice President Mike Pence to throw the 2020 presidential election.

The ruling in the frivolous case was not unexpected. 

The case arose when Gohmert and self-appointed Trump electors from Arizona sued VP Pence, arguing that the Electoral Count Act violates the Electors Clause and the Twelfth Amendment, and that Pence has authority to determine which slate of electors to accept when he presides over the congressional count of electoral votes on January 6. The, er, novel argument turns on the plaintiffs', um, creative reading of the Electors Clause, the Twelfth Amendment, and the Electoral Count Act.

Start with the Electors Clause. It says that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . ." 

Next, the Twelfth Amendment. It says that each state's electors meet in their respective states and vote for President and VP. The electors then transmit their votes to the President of the Senate, the VP. "The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted." The candidate winning the majority of electoral votes wins. But if no candidate gets a majority, the House selects the President, with each state delegation receiving one vote. 

Finally, the Electoral Count Act. It says that Congress must count the votes in a joint session on January 6, with the VP presiding. It says that the executive in each state shall certify the electors to the Archivist of the United States, who then transmits the certificates to Congress. It says that a state's determination of their electors is "conclusive" if the state resolved all disputes over the election pursuant to state law at least 6 days before the electors meet. (This is called the "safe harbor" date.) Under the Act, if at least one Member of the House of Representatives and one Senator objects to a state's elector votes, the House and Senate meet in separate sessions and vote on the objection--by members, not state delegations.

Arizona, Georgia, Pennsylvania, Michigan, and Wisconsin all certified their electors to President-Elect Biden and VP-Elect Harris, pursuant to state law and the Electoral Count Act. The governors certified the electors to the Archivist. 

But then Trump electors in those states met and, without any legal authority, self-certified their votes to President Trump and VP Pence. 

The plaintiffs contend that the self-appointed Trump electors created a competing slate of electors in each of these states. (They did not. The "Trump electors" named themselves electors without any legal authority and contrary to state law in each state.) They argue that "provisions . . . of the Electoral Count Act are unconstitutional insofar as they establish procedures for determining which of two or more competing slates of Presidential Electors for a given State are to be counted in the Electoral College, or how objections to a proffered slate are adjudicated, that violate the Twelfth Amendment."

In particular, they argue that the states appointed Biden electors in violation of the Electors Clause, because the state governors and secretaries of state certified those electors, even though the Electors Clause specifies that this is a function for the legislature. (In fact, the legislatures in each of those states already determined the manner of appointing electors by enacting state law that awards electors to the majority winner of the popular vote in those states.) 

Moreover, they argue that the dispute-resolution procedure in the Electoral Count Act "limits or eliminates [the VP's] exclusive authority and sole discretion under the Twelfth Amendment to determine which slates of electors for a State, or neither, may be counted." (In fact, the Twelfth Amendment does not give this authority to the VP. The VP's role is ceremonial, simply to read and count the certified results from each state.)

Finally, they argue that the dispute-resolution procedure in the Electoral Count Act "replaces the Twelfth Amendment's dispute resolution procedure--under which the House of Representatives has sole authority to choose the President." (In fact, the Twelfth Amendment dispute resolution procedure only applies when no candidate won a majority of electoral votes. The Electoral Count Act procedure applies when a member of both Houses objects to a state's slate of electors. Those are different dispute resolution processes, to be sure, but for very different kinds of dispute.) 

The plaintiffs asked the court to hold that the VP has "exclusive authority and sole discretion in determining which electoral votes to count for a given State." 

But the court ruled that the plaintiffs lacked standing. It said that Gohmert lacked standing, because he asserted only an institutional harm (to the House), and not a personal harm. "Congressman Gohmert's alleged injury is 'a type of institutional injury (the diminution of legislative power), which necessarily damages all Members of Congress.'" It said that the Trump "electors" lacked standing, because any alleged injury that they suffered was not created by VP Pence, the defendant. Moreover, it said that both Gohmert and the Trump "electors" failed to show that their requested relief (an order that VP Pence has exclusive discretion to determine which electoral votes to count) would redress their injuries, because VP Pence might not determine the electoral votes in their favor. 

The plaintiffs vowed to appeal. But don't expect this case to go anywhere . . . on standing, or on the merits.

Court Rebuffs Census Challenge

Steven D. Schwinn, University of Illinois Chicago Law School

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.

SCOTUS Rebuffs Texas's Challenge to Battleground State Election Results

Steven D. Schwinn, University of Illinois Chicago Law School

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.

The Court's full docket, with the parties' filings and the many amicus filings, is here.

SCOTUS Says No Standing to Challenge State Political Balancing Requirements

Steven D. Schwinn, University of Illinois Chicago Law School

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.

Seventh Circuit Rebuffs Appeal by Republicans, State Legislation in Wisconsin Voting Case

Steven D. Schwinn, University of Illinois Chicago Law School

The Seventh Circuit flatly rejected an appeal by the Wisconsin legislature and the state and national Republican Party of a lower court's order that the state extend voting deadlines in light of Covid-19. The ruling leaves the extended deadlines in place and ends the case, unless the intervenors can persuade the full Seventh Circuit or the Supreme Court to step in.

The case arose when the Democratic National Committee and others sued the state, arguing that its statutory voting deadlines violated the right to vote. The district court agreed, and ordered extended deadlines.

State executive officials declined to appeal. But the RNC, state Republicans, and the state legislature moved to intervene to defend the state's statutory deadlines (and to oppose the district court's order extending them), and brought this appeal.

The Seventh Circuit's ruling says that these parties don't have standing to appeal. The court said that the state and national Republican parties don't have standing, because neither group contended that the district court's ruling would affect their members, and because neither group suffered an injury itself.

Legislative standing was a little different. The court acknowledged that a legislature can litigate in federal court when it seeks to vindicate a legislative interest. But here the court said there was none. "All the legislators' votes were counted; all of the statutes they passed appear in the state's code."

The legislature argued that state law authorized it to defend against challenges to state statutes. But the court observed that the state supreme court previously ruled that this provision violated the state constitution, which "commits to the executive branch of government [and not the legislative branch] the protection of the state's interest in litigation."

The court gave the putative appellants a week to show cause why the court shouldn't dismiss the case.

D.C. Circuit Says House Has Standing to Challenge Trump's Reprogramming Funds for Wall

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.

 

Federal Judge Enjoins Federal Agents Acting Against Journalists and Legal Observers in Portland, Oregon

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

In a Temporary Restraining  Order and Opinion in Index Newspapers v. City of Portland, Judge Michael Simon enjoined the U.S. Department of Homeland Security ("DHS"); and the U.S. Marshals Service ("USMS") — the "Federal Defendants" — from arresting and otherwise interfering with journalists and legal observers who are documenting the troublesome and now widely reported events in Portland, Oregon, which have attracted Congressional attention.

Judge Simon's relatively brief TRO opinion, first finds that the plaintiffs have standing, and then applying the TRO criteria importantly finds that there is a likelihood the plaintiffs would prevail on the First Amendment claim. Judge Simon found both that there was sufficient circumstantial evidence of retaliatory intent against First Amendment rights and that plaintiffs had a right of access under Press-Enterprise Co. v. Superior Court (1986).  Judge Simon found fault with many of the specific arguments of the federal defendants, including the unworkability of the remedy:

The Federal Defendants also argue that closure is essential because allowing some people to remain after a dispersal order is not practicable and is unworkable. This argument is belied by the fact that this precise remedy has been working for 21 days with the Portland Police Bureau. Indeed, after issuing the first TRO directed against the City, the Court specifically invited the City to move for amendment or modification if the original TRO was not working, or address any problems at the preliminary injunction phase. Instead, the City stipulated to a preliminary injunction that was nearly identical to the original TRO, with the addition of a clause relating to seized property. The fact that the City never asked for any modification and then stipulated to a preliminary injunction is compelling evidence that exempting journalists and legal observers is workable. When asked at oral argument why it could be workable for City police but not federal officers, counsel for the Federal Defendants responded that the current protests are chaotic. But as the Federal Defendants have emphatically argued, Portland has been subject to the protests nonstop for every night for more than 50 nights, and purportedly that is why the federal officers were sent to Portland. There is no evidence that the previous 21 nights were any less chaotic. Indeed, the Federal Defendants' describe chaotic events over the Fourth of July weekend through July 7th, including involving Portland police, and the previous TRO was issued on July 2nd and was in effect at that time. The workability of the previous TRO also shows that there is a less restrictive means than exclusion or force that is available.

The TRO is quite specific as to journalists as well as to legal observers, providing in paragraph 5, to "facilitate the Federal Defendants' identification of Legal Observers protected under this Order, the following shall be considered indicia of being a Legal Observer: wearing a green National Lawyers' Guild-issued or authorized Legal Observer hat (typically a green NLG hat) or wearing a blue ACLU-issued or authorized Legal Observer vest."

The TRO lasts for 14 days; the litigation will undoubtedly last much longer.

 

 

SCOTUS Holds Louisiana Abortion Restrictions Unconstitutional

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

In its highly anticipated opinion in June Medical Services v. Russo (formerly Gee), the United States Supreme Court reversed the Fifth Circuit's controversial decision upholding Louisiana's abortion restrictions despite their similarity to the ones held unconstitutional in the Court's most recent abortion case, Whole Woman's Health v. Hellerstedt (2016).

Justice Breyer, who also wrote the Court's opinion in Whole Woman's Health, wrote the plurality opinion in June Medical, joined by Ginsburg, Sotomayor and Kagan (None of the women Justices wrote separately, meaning that the abortion opinions in today's case are all by men).

Breyer's plurality opinion  concluded that there is standing; recall that the United States argued that the physicians should not have standing to raise the constitutional rights of their patients despite this long standing practice.  Breyer's plurality opinion carefully rehearses the findings of fact by the district court (which applied Whole Women's Health) and ultimately concluded that the "evidence on which the District Court relied in this case is even stronger and more detailed" than in Whole Woman's Health. The Fifth Circuit, Breyer's plurality opinion concluded, misapplied the correct standard of review of these findings: the appellate court should have applied the deferential clear-error standard.

Chief Justice Roberts, who dissented in Whole Woman's Health, concurred in June Medical on the basis of stare decisis:

I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case . . . .

The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.

The Chief Justice's sixteen page concurring opinion, necessary to constitute the majority reversing the Fifth Circuit and upholding Whole Woman's Health is bound to be highly analyzed.

The dissenting opinions are somewhat fragmented. Thomas's dissenting opinion and Alito's dissenting opinion, joined by Gorsuch, and in part by Thomas and Kavanaugh, tracks ground familiar from Whole Woman's Health, with additional discussions of stare decisis. Gorsuch, who was not on the Court when Whole Woman's Health was decided in 2016, penned an opinion accusing the Court of having "lost" its way in a "highly politicized and contentious arena" by not paying due deference to the state legislature. Kavanaugh, who replaced Kennedy who had joined the majority in Whole Woman's Health, not only joined portions of Alito's dissent but wrote separately to stress his agreement with the portions of Alito's opinion that the case should be remanded, and in a footnote also stated that "the District Court on remand should also address the State’s new argument (raised for the first time in this Court) that these doctors and clinics lack third-party standing."

SCOTUS Says no Standing for Retirement-Plan Participants to Sue for Mismanagement

Steven D. Schwinn, UIC John Marshall Law School

A sharply divided Supreme Court ruled today in Thole v. U.S. Bank that retirement-plan participants can't sue their former employer for mismanagement of the plan, because they hadn't demonstrated sufficient direct and concrete harm.

The ruling deals a sharp blow to defined-benefit plan participants who seek to sue for plan mismanagement. Under the ruling, those participants have to wait until their actual benefits drop, or close to it. And even so, the Court's ruling may give employers an out. At the same time, the ruling shields employers from liability unless and until their mismanagement is so bad that it actually or imminently results in lowered benefits.

While the plaintiffs sued under the individual cause of action in ERISA, the Court's ruling is based on Article III standing. This means that Congress can't change the law to create more permissive standing.

The case arose when two retirees of U.S. Bank sued that Bank and others for mismanaging their retirement-plan assets. The plaintiffs sued under ERISA's individual cause of action.

The Court ruled that the plaintiffs lacked Article III standing because, in short, they didn't suffer a harm. Justice Kavanaugh wrote for the five conservatives that the plaintiffs' monthly defined benefits didn't drop, or wouldn't imminently drop, based on the mismanagement, and any court ruling wouldn't affect their monthly benefits under the plan.

The Court also noted that the plaintiffs' benefits wouldn't drop even if the retirement plan failed, because the Pension Benefit Guarantee Corporation backstops failed retirement plans. This raises the question whether the plaintiffs would have standing even if the plan's failing led to a reduction in the benefits that the plan pays out (because the plaintiffs, after all, would theoretically continue to receive the full measure of their defined-benefit plan, even if from the PBGC, and not the plan).

The ruling means that the plaintiffs have to wait to sue until the plan's failure actually or imminently results in a reduction in their own benefits. And even then, the Court might've written in an out for the employer by noting that the PBGC backstops failing plans.

Justice Sotomayor, joined by the three other progressives, dissented. She argued that the plaintiffs have an interest in their plan's integrity, just as private trust beneficiaries have an interest in protecting their trust; that breach of a fiduciary duty is a cognizable injury, even if it doesn't result in financial harm or increased risk of nonpayment; and that the plaintiffs have associational standing to sue on behalf of the plan.

She concluded:

It is hard to overstate the harmful consequences of the Court's conclusion. . . . After today's decision, about 35 million people with defined-benefits plans will be vulnerable to fiduciary misconduct. The Court's reasoning allows fiduciaries to misuse pension funds so long as the employer has a strong enough balance sheet during (or, as alleged here, because of) the misbehavior. Indeed, the Court holds that the Constitution forbids retirees to remedy or prevent fiduciary breaches in federal court until their retirement plan or employer is on the brink of financial ruin. This is a remarkable result, and not only because this case is bookended by two financial crises.

Florida District Judge Issues Injunction on Florida Statute Requiring Payment of Fines and Fees for Re-enfranchisement

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

The 125 page opinion in Jones v. DeSantis by United States District Judge Robert Hinkle results in an detailed permanent injunction outlining how Florida must comply with the constitutional and statutory requirements required to implement its statute requiring the payment of fees and fines before persons convicted of felonies be re-enfranchised.

Recall that Florida law disenfranchising persons convicted of felonies, held unconstitutional in 2018, was changed by a voter referendum to amend the Florida Constitution. Amendment 4.  Amendment 4 changed the Florida Constitution to provide:

any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.

Fla. Const. Art. VI §4.  After the amendment was passed, the Florida legislature passed SB7066, codified as Fla. Stat. §98.071 (5) which defined "completion of all terms of sentence" to include "full payment of any restitution ordered by the court, as well as "Full payment of fines or fees ordered by the court as a part of the sentence or that are ordered by the court as a condition of any form of supervision, including, but not limited to, probation, community control, or parole." 

Recall Judge Hinkle previously issued a preliminary injunction regarding indigent persons, finding that the statute as to the named plaintiffs violated equal protection.

Recall also that the Eleventh Circuit upheld the preliminary injunction, finding that to the "extent a felon can pay" the legal financial obligations (LFOs), they must, but clearly affirmed the district court's order enjoining the state "from preventing the plaintiffs from voting based solely on their genuine inability to pay legal financial obligations."

Now, Judge Hinkle has heard evidence in the five consolidated cases and issued a detailed injunction.

As to the equal protection claim of persons who are "genuinely unable to pay their LFOs,"  Judge Hinkle found the Eleventh Circuit decision upholding the preliminary injunction was determinative. But the determination of "genuinely unable to pay" had its own constitutional issues:

The State has shown a staggering inability to administer the pay-to- vote system and, in an effort to reduce the administrative difficulties, has largely abandoned the only legitimate rationale for the pay-to-vote system’s existence.

The state, it seemed, could not determine the original obligation for individuals, and it could not determine the amount that individuals had paid - - - changing its accounting from an "actual-balance method" to a "every-dollar method." The opinion does an admirable job of explaining the methods and providing examples - - - and it seems clear that it is incoherent. Further, the department of elections charged with administering the system did not have a system or the resources it.

On equal protection on the basis of race or gender, Judge Hinkle rejected both claims "on balance," but did provide serious consideration.

On the Twenty-fourth Amendment, the court stated that while the Florida statute was not a poll tax, the fees imposed on defendants as payment to run the criminal justice system were "any other tax" within the Amendment.

On procedural due process, the problems with the state system and the "request an advisory opinion" method provided to individuals to determine the amounts due merited analysis, as well as a large portion of the mandated injunction (below).

While the States may certainly chose to appeal, Florida would not seem to have a very good chance returning to the Eleventh Circuit.

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Fourth Circuit Denies Trump's Appeal in Emoluments Case

Steven D. Schwinn, UIC John Marshall Law School

The Fourth Circuit, sitting en banc, denied President Trump's interlocutory appeal of the district court's failure to rule on his motion to dismiss in the Emoluments Clause case brought by Maryland and D.C.

The ruling is a victory for Maryland and D.C., in that it keeps the case going. But it says nothing on the merits, or on the several other barriers that the plaintiffs may face in bringing this suit. It merely sends the case back to the district court for a ruling on President Trump's motion and other proceedings.

After Maryland and D.C. sued President Trump for Emoluments Clause violations, the President moved to dismiss, arguing that he enjoyed absolute immunity. The district court didn't rule on the motion for seven months, so President Trump filed an interlocutory appeal with the Fourth Circuit, arguing that the district court effectively denied his motion.

A three-judge panel agreed and held that Maryland and D.C. lacked standing. (We posted on the Fourth Circuit's standing ruling here.) The court vacated that ruling and granted en banc review.

Today's ruling says that the Fourth Circuit didn't have jurisdiction to hear the case.

The court said that

the district court neither expressly nor implicitly refused to rule on immunity. It did not make any rulings with respect to the President in his individual capacity. To the contrary, the district court stated in writing that it intended to rule on the President's individual capacity motion. Despite the President's suggestion, the district court's deferral did not result in a delay 'beyond all reasonable limits.'

The dissent disagreed, and wrote that "[t]he district court's treatment of the President's invocation of absolute immunity is best characterized as deliberately dilatory and, more probably, manipulative."

Eleventh Circuit Says Plaintiffs Lack Standing to Challenge Florida's Ballot Sequence Law

Steven D. Schwinn, UIC John Marshall Law School

The Eleventh Circuit ruled this week that a group of Florida voters and organizations lacked standing to challenge the state's law that specifies the order of candidates on its ballots. The ruling dismisses the case and leaves the state law in place.

The plaintiffs in the case--Democratic state voters and organizations--challenged Florida's law that puts the candidate of the party that won the last gubernatorial election in the state at the top of the list of candidates for each office. They claimed that this gives up to a five percent advantage to that party (now Republicans), on average, in elections across the state, and that this violated their right to vote. The district court agreed.

But the Eleventh Circuit ruled that the plaintiffs lacked standing. The court held that the plaintiffs couldn't show an injury in fact that flowed from the defendant Secretary of State's actions and that could be redressed by a ruling of the court.

As to injury, the court held that the individual voters couldn't show a direct injury to their right to vote, and that their claims of vote dilution were insufficient to establish standing (because they relied on the statewide average vote dilution, not their own particular dilution). The court held that the organizations lacked associational standing for the same reasons, and that they lacked organizational standing (on their own) under a diversion-of-resources theory. According to the court, that's because they failed to show what activities they'd divert their resources from in order to deal with the ballot-sequence law.

As to causation and redressability, the court said that the Secretary didn't have authority under state law to enforce the ballot-sequence provision--the county supervisors do, and they're not part of the case--and so the plaintiffs couldn't show that the Secretary's actions caused any injury, or that judicial relief aimed at the Secretary would redress any injury.

Judge William Pryor concurred, arguing that the case also raised a non-justiciable political question (because the court didn't have "discernable and manageable standards" to work it out).

Judge Jill Pryor agreed that the plaintiffs failed to demonstrate an injury. But she argued that the question of the Secretary's authority under state law was much more complicated than the majority made it out to be, and she therefore wouldn't have ruled on causation and redressability. Judge Pryor argued that the court, by ruling on those points when it wasn't necessary, "creates a circuit split on the connection a state official must have with a challenged state statute for a plaintiff to satisfy traceability and redressability."

SCOTUS Hears Oral Arguments in June Medical Abortion Case

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

Will this be the case in which the Supreme Court decides to overrule the almost half-century precedent of Roe v. Wade (1973)?

The Court heard oral arguments in June Medical Services v. Russo (formerly Gee), but Roe v. Wade was not mentioned. Planned Parenthood of SE Pennsylvania v. Casey (1992) was mentioned only once, but Justice Breyer in the context of standing of physicians. But the Court's most recent abortion case, Whole Woman's Health v. Hellerstedt (2016), which is factually difficult to distinguish from the June Medical, was often center-stage.

Julie Rikelman, arguing for June Medical, began by stating that the Louisiana statute at issue in the case is "identical" to the one the Court upheld in Whole Woman's Health four years prior. Yet her first sentence — "This case is about respect for the Court's precedent" — implicitly reached back further. Further, the precedent involved was not only on the merits, but also on the issue of third-party standing, which here is the ability of physicians to raise the constitutional rights of their patients.  Such third party standing was accorded physicians in pre-Roe cases such as Griswold v. Connecticut (1965), involving contraception. It was also accorded the bar owner rather than the minor male (who had since turned 21), in Craig v. Boren (1976), involving an Oklahoma statute restricting 3.2 beer to males, a case with which Justice Ginsburg is more than a little familiar. Rikelman argued that Louisiana had waived any objections to third party standing by not raising it in the district court, and the fact of that waiver was vigorously disputed by Justice Alito. Alito also repeatedly raised the validity of the third party standing issue in circumstances in which the physicians and the patients interests were in conflict.  Rikelman, and other Justices seemingly, repeated that there was no conflict.

On the merits, the question was whether "the inquiry under [Whole Woman's Health v.] Hellerstedt is a factual one that has to proceed state-by-state?," as Chief Justice Roberts phrased it. This question goes to the heart of whether Whole Woman's Health is binding precedent. Elizabeth Murrill, Solicitor General for the state of Louisiana, argued that because the Fifth Circuit focused on the credentialing aspect of admitting privileges, it was different from Whole Woman's Health.  Chief Justice Roberts essentially asked her the same question he'd earlier asked Rikelman about state-by-state differences:

CHIEF JUSTICE ROBERTS: Do you agree that the benefits inquiry under the law is going to be the same in every case, regardless of which state we're talking about? I mean, I understand the idea that the impact might be different in different places, but as far as the benefits of the law, that's going to be the same in each state, isn't it?

MURRILL: No. I don't think the benefit -- I mean, I think that a state could certainly show greater benefits, depending on what their regulatory structure is and what the facts are on the ground in that state. I think we absolutely could show that we -- that it serves a greater benefit.
In our situation, for example, we've demonstrated that the doctors don't do credentialing . . . .

Arguing for the United States, Jeffrey Wall, the Deputy Solicitor General, supported the state of Louisiana on the merits and also argued against third party standing.  Justice Breyer posed the question of stare decisis:

1. And I think eight cases where you've given standing, I mean, we could go back and reexamine Marbury versus Madison, but really we have eight cases in the abortion area, we have several cases in other areas, and Whole Woman's Health picks that up. Casey picks that up. And you really want us to go back and reexamine this, let's go back and reexamine Marbury versus Madison.

   And -- and you have good arguments. But why depart from what was pretty clear precedent?

Wall argued in response that in none of the previous standing cases had the Court considered whether there was a conflict between the patients and the doctors.

On rebuttal, Rikelman argued there was no such conflict now.

There are plenty of conflicts between the parties and the Justices.