Constitutional Law Prof Blog

Seventh Circuit Says Governor Can Limit Media Access to Press Conferences

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

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The Seventh Circuit ruled on Friday that a state governor can limit media access to press conferences, so long as the limits are reasonable and viewpoint neutral. The ruling rebuffs the plaintiffs' challenges and allows the governor to continue to limited access to press conferences based on viewpoint neutral criteria.

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The case, MacIver Institute for Public Policy v. Evers, arose when Wisconsin Governor Tony Evers prevented two reporters from the MacIver Institute from attending his limited-access press conferences. Evers restricted access based on a set of criteria that included things like the length of time that a media outlet has published news, whether a media outlet is a periodical or has an established television or radio presence, whether the reporters are paid or full-time correspondents, and whether the reporters and media outlet are "bona fide" and "of repute in their profession," among other similar criteria. The Institute sued, arguing that free speech and free press guaranteed a right to equal access for all media.

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The court rejected the Institute's challenge. It ruled that the governor's limited-access press conferences were "nonpublic" forums, and that the governor permissibly limited access based on criteria that had nothing to do with a media outlet's viewpoint. Moreover, the court noted that the Institute provided no evidence that Evers applied the viewpoint neutral criteria in a viewpoint-based way. The court noted that under the governor's viewpoint-neutral criteria, the governor allowed access to a variety of media across the range of political ideologies, and that the governor similarly disallowed access to a variety of media across the range of political ideologies.

 

Supreme Court Halts California's At-Home COVID Restriction Pending Appeal

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

The Supreme Court on Friday granted a motion to enjoin California's at-home COVID restrictions pending appeal at the Ninth Circuit. (The Ninth Circuit previously denied the same motion.) The ruling means that California cannot apply its restriction on at-home religious gatherings to three households to the plaintiffs, at least for now (though likely forever).

The Court compared the state's treatment of private, at-home religious gatherings (restricted to three households) with its treatment of "hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants" (allowing more than three households at a time). The Court said that the different treatment meant that the state had to justify its at-home restrictions under strict scrutiny as to these plaintiffs--and that it couldn't.

Justice Kagan, joined by Justices Breyer and Sotomayor, dissented. Justice Kagan wrote that the Court looked to the wrong comparators:

California limits religious gatherings in homes to three households. If the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment. And the State does exactly that: It has adopted a blanket restriction on at-home gatherings of all kinds, religious and secular alike. California need not, as the per curiam insists, treat at-home religious gatherings the same as hardware stores and hair salons--and thus unlike at-home secular gatherings, the obvious comparator here.

She also argued that the state had good reason to treat at-home gatherings differently than gatherings in stores and salons: the district court found, and the Ninth Circuit acknowledged, that "those activities do pose lesser risks . . . ."

Chief Justice Roberts would've denied the motion, although he did not join Justice Kagan's dissent.

Ninth Circuit Rebuffs Plaintiffs' Effort to Halt California's COVID Restrictions Based on Free Exercise

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

The Ninth Circuit yesterday denied plaintiffs' motion for an emergency injunction pending appeal to halt California's COVID restrictions as applied to their religious practices, among other claims. The ruling means that California's restrictions stay in place, at least for now.

The case raises, once again, the question of the relevant comparator in determining whether the restrictions are neutral with regard to religion, or whether they target religion.

The plaintiffs challenged California's restrictions on private "gatherings" as applied to their in-home religious studies. Under the state's restrictions, indoor and outdoor gatherings are limited to three households; and gatherings must be held in a large enough space to allow distancing of six feet, they must last no longer than two hours, and attendees must wear face coverings. Singing, chanting, shouting, and cheering are allowed at outdoor gatherings, but not indoor gatherings.

The plaintiffs argued that the restrictions prevent them from holding in-home Bible studies and communal worship with more than three households, even though California allows more than three households to engage in certain commercial activities. They said that this amounts to religious targeting, triggering strict scrutiny.

The court rejected the argument. The court said that the plaintiffs were looking to the wrong class of activities to compare: "When compared to analogous secular in-home private gatherings, the State's restrictions on in-home private religious gatherings are neutral and generally applicable and, thus, subject to rational basis review." The court said that "[t]here is no indication that the State is applying the restrictions to in-home private religious gatherings any differently than to in-home private secular gatherings." As to the restrictions' application to small businesses and commercial activities (like barbershops and tattoo parlors), the court acknowledged that these businesses are not subject to the three-household restriction, but noted that they're subject to a host of other restrictions that are directed to the particular, place-specific risks that they raise.

Judge Bumatay dissented, arguing that the state's restrictions target religion, because they don't apply equally to small businesses and commercial activities (again, like barbershops and tattoo parlors). Judge Bumatay would therefore apply strict scrutiny, rule that the plaintiffs showed that they'd likely succeed on the merits, and enjoin the restrictions.

Capitol Officers Sue Trump for Inciting Insurrection

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

U.S. Capitol Police Officers James Blassingame and Sidney Hemby sued former President Trump on Tuesday for inciting the January 6 insurrection. The complaint alleges a variety of torts and seeks compensatory and punitive damages.

Representative Bennie Thompson and Representative Eric Swalwell previously filed their own separate complaints against Trump and others, alleging civil-rights violations, a variety of torts, and interference with Congress's count of the electoral college votes.

Whatever other defenses Trump and other defendants may seek to assert, the president's official immunity is unlikely to work. Under Nixon v. Fitzgerald, a president is absolutely immune for civil damages for acts within the "outer perimeter" of the president's official responsibility. But allegations in all three complaints--not to mention the public record--put Trump's actions well outside this "outer perimeter." And the Thompson and Swalwell complaints specifically allege that Trump was acting in his personal capacity (not his official capacity) and for his personal benefit (and not in aid of the president's "constitutional office and functions").

Organizations Sue Over Georgia Election Law

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

The New Georgia Project, Black Voters Matter Fund, and Rise, Inc. sued Georgia officials last week to halt the state's new restrictive voting law, SB 202. The complaint is here.

The plaintiffs challenge the state's adoption of "unnecessary and burdensome new identification requirements for absentee voting"; restrictions on absentee drop boxes; ban on mobile polling places; prohibition on distributing unsolicited absentee ballot applications; prohibition on third-party ballot collection; authorization of third-party challenges to voter qualifications; invalidation of ballots cast before 5:00 p.m. in a precinct where a voter wasn't assigned; ban on giving food and drink to voters waiting in line; and compressed time period for voting in a runoff election.

The plaintiffs argue that the restrictions create an undue burden on the right to vote under the Fourteenth and Fifteenth Amendments, and Section 2 of the Voting Rights Act.

Court Says a Shooting by Police is a Seizure, even if victim gets away

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

The Supreme Court ruled this week that a shooting by police officers is a "seizure" under the Fourth Amendment, even if the victim of the shooting escapes. The ruling is consistent with the holding in California v. Hodari D., a 1991 opinion authored by Justice Scalia. But the Court said that it didn't need to determine whether Hodari D. controlled, because the Court independently came to the same conclusion here.

The ruling doesn't end the case, though; it just allows it to move forward. The lower courts will still have to determine whether the seizure was "reasonable," whether the officers are entitled to qualified immunity, and what damages the plaintiff is entitled to.

The case, Torres v. Madrid, arose when officers shot at Roxanne Torres as she fled in her vehicle. (Torres sped away from the officers because she thought they were trying to carjack her.) The officers hit Torres, but she continued driving for 75 miles. She was airlifted to a hospital, where police arrested her the next day.

Torres sued the officers for unreasonably "seizing" her in violation of the Fourth Amendment. The officers argued that their shots couldn't have amounted to a seizure, because she got away.

The Court agreed with Torres. Chief Justice Roberts wrote for the Court that "[a]t the adoption of the Fourth Amendment, a 'seizure' was the 'act of taking by warrant' or 'of laying hold on suddenly'--for example, when an 'officer seizes a thief,'" but that it didn't "necessarily result in actual control or detention." The Court noted that at English common law "a corporal touch [was] sufficient to constitute an arrest, even though the defendant do[es] not submit." It said that "[e]arly American courts adopted this mere-touch rule . . . just as they embraced other common law principles of searches and seizures." (The Court went on to say that a touch must "objectively manifest[] an intent to restrain," that it's not measured from the perspective of the seized person, and that it a seizure "lasts only as long as the application of force.") It held that the officers' bullets constituted just such a "touch," and therefore constituted a Fourth Amendment seizure.

Justice Gorsuch dissented, joined by Justices Thomas and Alito. He argued that "[u]ntil today, a Fourth Amendment 'seizure' has required taking possession of someone or something," and that this didn't occur here.

Justice Barrett did not participate.

Court Says Plaintiffs Can Sue Ford Where Torts Occurred

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

The Supreme Court ruled this week that Ford had sufficient contacts with states where plaintiffs suffered injuries in Ford vehicles to allow the plaintiffs to sue there. The ruling means that the plaintiffs can pursue their claims against Ford in states where "Ford had systematically served a market . . . for the very vehicles" that caused the injuries, even though the plaintiffs didn't purchase their vehicles in those states, and even though Ford did not manufacture or design them there.

The holding breaks no new ground. But the reasoning might.

The case, Ford Motor Co. v. Montana Eighth Judicial District Court, arose when plaintiffs who were injured in Ford vehicles in Montana and Minnesota sued the carmaker in those states. Ford argued that the state courts lacked personal jurisdiction, however, because the plaintiffs didn't buy the cars in those states, Ford didn't manufacture the cars there, and Ford didn't design the cars there--even though it had many other contacts with those states.

In other words, Ford said that there was no causal link between its behavior in the states and the plaintiffs' injuries.

The Court rejected this approach. In an opinion by Justice Kagan, the Court wrote that "Ford's causation-only approach finds no support in this Court's requirement of a 'connection' between a plaintiff's suit and a defendant's activities." The Court said that this result squares with language from World-Wide Volkswagen that "has appeared and reappeared in many cases since." Justice Alito summarized that language in his concurrence: "If a car manufacturer makes substantial efforts to sell vehicles in States A and B (and other States), and a defect in a vehicle first sold in State A causes injuries in an accident in State B, the manufacturer can be sued in State B."

In getting there, the Court looked to language in past opinions that said that a plaintiff's claims "must arise from or relate to the defendant's contacts" with the forum state. The Court read this as a disjunctive phrase, and said that while the first part ("arise from") requires causation, the second part ("relate to") doesn't. Even if the plaintiffs' claims here might not have "arose from" Ford contacts (in the causal sense), they certainly "related to" those contacts--and that's enough for personal jurisdiction.

Justice Alito and Justice Gorsuch (joined by Justice Thomas) wrote separate concurrences taking issue with that parsing of the phrase. Justice Alito worried that "[r]ecognizing 'relate to' as an independent basis for specific jurisdiction risks needless complications." Instead, he'd "leave the law exactly where it stood before we took these cases." Justice Gorsuch said the Court's approach was "unnecessary" to resolve the case. He'd revisit the modern approach (starting with International Shoe) and look instead to "the Constitution's original meaning." He suggested that for a case like this (with a defendant "nationwide corporation" whose "business is everywhere"), the defendant could be sued anywhere.

State AGs Object to COVID Stimulus Plan Restrictions UPDATE

Steven D. Schwinn, University of Illinois Chicago Law School

Twenty-one Republican state attorneys general wrote a letter to Treasury Secretary Janet Yellen yesterday objecting to provisions in the recently enacted federal stimulus bill that place certain restrictions on the $350 billion that is directed to cities, counties, and states.

In particular, the AGs objected to a provision that prohibits recipients of the funding from

us[ing] the funds . . . to either directly or indirectly offset a reduction in the net tax revenue of such State or territory resulting from a change in law, regulation, or administrative interpretation during the covered period that reduces any tax (by providing for a reduction in a rate, a rebate, a deduction, a credit, or otherwise) or delays the imposition of any tax or tax increase.

The AGs argue that the provision could prohibit states from reducing taxes in areas that have nothing to do with COVID relief or the stimulus bill, and that this would violate federalism principles. They say that the restriction, as written, is ambiguous, does not relate to COVID stimulus or relief, and "would effectively commandeer half of the States' fiscal ledgers, compelling States to adopt the one-way revenue ratchet of the current Congress for the next three years"--in violation of the conditioned spending test in South Dakota v. Dole.

According to the AGs, "such federal usurpation of state tax policy would represent the greatest attempted invasion of state sovereignty by Congress in the history of our Republic."

The AGs ask Secretary Yellen to confirm that the restriction "does not prohibit States from generally providing tax relief through the kinds of measures listed and discussed above and other, similar measures, but at most precludes express use of the funds provided under the Act for direct tax cuts rather than for the purposes specified by the Act." Without such assurance, they say that'll "take appropriate additional action . . . . "

UPDATE: Turns out Ohio, whose AG did not sign the letter, didn't want to wait for an answer from Yellen: it filed suit against Yellen, alleging more-or-less the same claims.

Seventh Circuit Strikes Indiana's Parental Notification Bypass for Minors' Abortion, Again

Steven D. Schwinn, University of Illinois Chicago Law School

The Seventh Circuit ruled last week that Indiana's amended judicial bypass procedure violated the right to an abortion for minors. The court earlier ruled on the case (and struck the same amended bypass procedure), but the Supreme Court vacated that judgment and remanded the case in light of the Court's ruling last summer in June Medical. Last week, the Seventh Circuit came to the same result.

The case, Planned Parenthood v. Box, challenged Indiana's judicial bypass procedure. As amended, that procedure required a court to notify a minor's parents when the minor sought an abortion through judicial bypass of the state's parental-consent requirement, unless the judge finds that parental notification is not in the minor's best interest.

The district court originally ruled that the procedure created an undue burden on a minor's right to an abortion. The Seventh Circuit affirmed. The appeals court applied the balancing test from Whole Women's Health, the 2016 Supreme Court case that struck Texas's admitting-privileges requirement. (Under the requirement, abortion doctors had to have admitting privileges at a hospital within 30 miles of the place where they performed abortions.) The Court in Whole Women's Health assessed whether the admitting-privileges requirement created an undue burden by balancing the burdens of the requirement on a woman's right to an abortion against the putative benefits of the requirement. It held that the requirement created substantial burdens, but no benefits. The Seventh Circuit similarly ruled that Indiana's judicial bypass procedure created substantial burdens, but no benefits. (The plaintiffs demonstrated that the procedure would create burdens on access, while the state failed to produce any evidence of benefits of the law.)

Then, last summer, the Supreme Court ruled in June Medical that Louisiana's admitting-privilege requirement (the same as Texas's requirement, struck in Whole Women's Health) also created an undue burden on a woman's right to an abortion. But the Court in June Medical split differently than in Whole Women's Health, because Justice Kavanaugh had replaced Justice Kennedy. (Justice Kennedy sided with the majority in Whole Women's Health, but Justice Kavanaugh sided with the dissent in June Medical.) In particular, Justice Breyer wrote for a four-justice plurality (including Justices Ginsburg, Sotomayor, and Kagan) that Louisiana's law was unconstitutional for two reasons: stare decisis (because Louisiana's law was the same as Texas's law, struck in Whole Women's Health); and because the burdens of Louisiana's law outweighed the benefits, thus creating an undue burden under the Whole Women's Health balancing approach. Chief Justice Roberts concurred in the judgment based on stare decisis alone. But he also disagreed with the balancing approach. Justices Thomas, Alito, Gorsuch, and Kavanaugh wrote their own separate dissents.

The Court vacated the earlier Seventh Circuit ruling and remanded it for considering in light of June Medical. So the Seventh Circuit had to figure out whether June Medical changed the balancing test from Whole Women's Health that the Seventh Circuit had previously relied upon to strike Indiana's bypass procedure.

The Seventh Circuit last week ruled that June Medical did not change the balancing test. Under the Marks rule (which sorts out which opinion states the holding of the Court when, as in June Medical, there's no majority opinion), the court looked to Chief Justice Roberts's concurrence in June Medical as the "position taken by those Members who concurred in the judgment on the narrowest grounds." The Seventh Circuit held that Chief Justice Roberts's stare decisis rationale aligned with Justice Breyer's stare decisis rationale as the holding of the Court, and that the Court didn't otherwise alter or overrule the balancing approach in Whole Women's Health. (The court rejected the state's argument that Chief Justice Roberts's second rationale (that the balancing approach was wrong) aligned with the four dissenters' positions (also that the balancing approach was wrong) to create a majority that the balancing approach was wrong. The court explained that Chief Justice Roberts's second rationale (that the balancing approach was wrong) was dicta, and that under Marks the June Medical dissents (which also took issue with the balancing approach) don't count.)

The court said that because the balancing approach under Whole Women's Health was still the law, Indiana's bypass procedure still violated it.

Judge Kane dissented, arguing that under Marks Chief Justice Roberts's opinion in June Medical aligned with the plurality on a "substantial obstacle" test (without balancing, and not merely on stare decisis), and that Indiana's bypass procedure did not violate that "substantial obstacle" test.

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.

Primer on Impeachment and 14th Amendment Disqualification

Steven D. Schwinn, University of Illinois Chicago Law School

Here's a short Q&A on some of the questions surrounding congressional efforts to impeach and disqualify President Trump. (I previously posted a primer on constitutional issues related to last week's insurgency.) 

Can the House impeach President Trump again?

Yes. Recall that the House impeached President Trump just last year--for abusing power by pressuring the Ukrainian president to dig up dirt on Joe Biden to boost Trump's chances of reelection, and for obstructing the House investigation into the matter. Still, there's nothing prohibiting the House from impeaching President Trump again. (The House has only impeached two other presidents in our history, Andrew Johnson and Bill Clinton. It only impeached them once. But nothing prohibits a second impeachment.)

What happens if the House impeaches?

Alone, nothing. Remember that impeachment is a two-step process: impeachment in the House, and conviction in the Senate. Impeachment in the House requires a bare majority; conviction in the Senate requires a 2/3 vote. "Impeachment" requires both actions. So a House impeachment alone does nothing . . . except record for history that the House voted that the president committed impeachable offenses. Removal from office and disqualification from future office (see below) require the action of both chambers.

What happens if both chambers act?

Two things could happen. First, Congress (again, upon impeachment by the House and conviction in the Senate) could remove the president from office. That only happens, of course, if the president is still in office. So removal would only follow if Congress acted before President Trump's term ends.

Second, Congress can disqualify the president from holding office in the future. Under past congressional practice, this takes a bare majority in both chambers (and not the 2/3 super-majority in the Senate that's required for removal). (The Constitution itself isn't clear on the vote required for disqualification. But when the Constitution isn't clear, and there's no judicial precedent, we often look to past practice to discern the meaning. Past practice on disqualification says that Congress can disqualify with a bare majority vote in both houses.)

Finally, if both chambers act, Congress sets a precedent that behavior like President Trump's is impeachable, and cause for removal and disqualification. Because of the important role that history and practice play in our constitutional tradition, this kind of precedent would be significant, and could influence the future practices of both the President and Congress.

Can Congress impeach the President after his term ends?

Probably yes. The Constitution doesn't explicitly answer this question. But the House has twice impeached officials after they left office--once in 1797 (a Senator, after he was expelled), and once in 1876 (the Secretary of War, after he left office). These precedents are a good indication that Congress could impeach President Trump after he leaves office. (Again: past practice is a good indicator of meaning when the text is silent or ambiguous, and when there's no judicial precedent.) Moreover, as a practical matter, it only makes sense that Congress could impeach an officer after the officer leaves office. Otherwise, an officer could escape removal by resigning, or committing an impeachable offense near the end of the officer's term; and the officer could entirely escape disqualification (because a vote on disqualification often occurs only after an officer leaves office).

On the other hand, some argue that Congress can only impeach a sitting officer, in short, because only a sitting officer can be removed from office.

Can President Trump pardon himself out of impeachment?

No. The pardon power does not extend to impeachments.

Moreover, President Trump probably cannot pardon himself. (The Constitution doesn't say, and there's some disagreement on this. But the Justice Department has long held the view that the president cannot pardon him- or herself, based on the background constitutional principle that no person should be a judge in their own case.)

Can President Trump sue to stop or undo an impeachment?

No. The Supreme Court has ruled that impeachments are "non-justiciable." It said that the impeachment power belongs exclusively to Congress, and that the courts lack authority to second-guess congressional judgments about impeachment and its processes.

Can Congress disqualify President Trump from future office in some other way?

Yes. The 14th Amendment, Sections 3, says that any person who "engaged in insurrection or rebellion" is disqualified from holding federal and state offices, including the presidency. This would require a bare majority vote in both houses, and Congress could disqualify President Trump under the 14th Amendment after he leaves office. (Note that the current House articles of impeachment reference 14th Amendment disqualification.)

Pence Says Invocation of the 25th Amendment is not "Consistent with Our Constitution"

Steven D. Schwinn, University of Illinois Chicago Law School

Vice President Mike Pence wrote to House Speaker Nancy Pelosi late yesterday declining to invoke the 25th Amendment against President Trump, writing that he does "not believe that such a course of action is in the best interest of our Nation or consistent with our Constitution." 

As to why invocation of the 25th Amendment was not "consistent with our Constitution," Pence wrote,

As you know full well, the 25th Amendment was designed to address Presidential incapacity or disability. . . . Under our Constitution, the 25th Amendment is not a means of punishment or usurpation. Invoking the 25th Amendment in such a manner would set a terrible precedent.

He went on to argue that it'd be a bad idea, too, writing that "now is the time for us to come together, now is the time to heal."

For more on the 25th Amendment, check out this Congressional Research Service report.

High Court Rebuffs Election Challenges

Steven D. Schwinn, University of Illinois Chicago Law School

In orders this morning and last Thursday, the Supreme Court denied requests for expedited and interim relief in President Trump's challenges to state election processes and in Representative Louie Gohmert's lawsuit, respectively.

The rulings functionally close any chance that the Supreme Court will hear any additional challenges to the 2020 election.

A Primer on Constitutional Issues Related to the Insurgency

Steven D. Schwinn, University of Illinois Chicago Law School

Here's a short Q&A on some of the more common constitutional questions related to Wednesday's insurgency:

The Twenty-Fifth Amendment

What is it?

Section 4 of the Twenty-Fifth Amendment provides a four-step process for determining when a President "is unable to discharge the powers and duties of . . . office . . . ." Section 4 comes into play when a sitting President cannot or will not determine for him- or herself that he or she is so unable. (Section 3 provides the process for a President to make this determination for him- or herself, e.g., to temporarily designate him- or herself as unable to discharge the duties when he or she goes in for a medical procedure that may render the President temporarily unable to do the job.) If successful, a Section 4 process would make the Vice President the "Acting President." 

How does it work?

Section 4 has four steps:

Step 1: The VP and a majority of the principal officers of the executive departments (the cabinet) send a written declaration of inability to the President Pro Tem of the Senate and the Speaker of the House. (There are 15 executive departments, so a majority is 8. Section 4 alternatively allows "such other body as Congress may by law provide" to serve this role. But there's currently no "such other body.") When this happens, the VP automatically becomes Acting President and assumes the powers of the presidency.

Step 2: The President may then send a letter to these congressional leaders stating that he or she has no disability--in other words, contesting the judgment of the VP and the cabinet. Note that the President isn't required to do this. If the President doesn't do it, the VP continues as Acting President. There's no time limit for the President to submit this transmission.

Step 3: The VP and a majority of the principal officers of the executive departments can send another transmission to the congressional leaders, but must do so within four days of the President's transmission. If so, then the VP remains Acting President. (There is some disagreement about who would have the powers of the presidency during the period between the President's transmission and the VP/cabinet's re-submission. There is good textual and historical evidence that the VP would remain Acting President during this period.)

Step 4: Congress shall assemble within 48 hours to decide the issue; it must make a decision within 21 days (of receipt of the last transmission (in Step 3), or, if not in session, after it's required to assemble). If Congress votes by 2/3 in each chamber that the President is unable to discharge the duties of office, then the VP remains Acting President. "[O]therwise, the President shall resume the powers and duties of his office." 

What does it mean for President Trump?

If the VP and cabinet activate Section 4, VP Pence is likely to become the Acting President for the rest of President Trump's term, no matter what President Trump does. That's because the VP would become Acting President after Step 1, and because the VP and the cabinet would almost certainly complete Step 3 (having already committed to Step 1). At that point, Congress has a full 21 days--days in which the VP would be Acting President--which would carry us beyond January 20, the date of President-Elect Biden's inauguration. (Congress could easily drag its feet and avoid a vote until after January 20.)

Here's a fantastic Congressional Research Service report on the Twenty-Fifth Amendment.

Impeachment

What is it?

Impeachment is a two-step process by which Congress can remove a sitting President from office and ban the President from holding future office. According to the Congressional Research Service, "[i]t appears that federal officials who have resigned have still been thought to be susceptible to impeachment and a ban on holding future office." A pardon doesn't work on impeachment. An impeached individual could also be subject to criminal liability.

How does it work?

Impeachment is a two-step process:

Step 1: The House votes to impeach. This requires only a bare majority. 

Step 2: The Senate then holds a trial and votes to convict. Removal from office requires a 2/3 vote. But under Senate practice, a bare majority could vote to prevent the President from holding future office.

What does it mean for President Trump?

Congress could remove President Trump from office, or ban him from holding office in the future, or both. Congress could ban President Trump from holding future office, even if he resigns from office first. Congress could dispense with its ordinary impeachment procedures (which take a longer time) and move very quickly, even before January 20. That's because impeachment proceedings are non-justiciable (the courts won't hear challenges to them), and President Trump therefore couldn't challenge an impeachment process in court.

Here's an excellent Congressional Research Service Report on impeachment.

Presidential Resignation

President Trump is free to resign from office at any time. There are no restrictions on this. If he resigns, under Section 1 of the Twenty-Fifth Amendment, "the Vice President shall become President."

Pardon

What is it?

The President has the power to pardon individuals for federal (but not state) crimes. But the President can pardon for crimes arising from past behavior only; the President cannot pardon for future acts. (But by pardoning for past behavior, the President can insulate individuals from future indictments or convictions.) The pardon power is probably not reviewable in the courts, although an improper exercise of the pardon power could be an impeachable offense.

The Justice Department has long held that a President cannot pardon him- or herself. (The OLC memo is here.) But we've never faced that situation, and we have no court rulings. 

There's a question as to whether the President can issue a blanket pardon, or whether the President must identify the specific criminal behavior. This has never been tested.

What does it mean for President Trump?

President Trump cannot pardon himself. If he tries--and attempts to use his self-pardon as a defense in a future federal prosecution--he will likely fail. But President Trump could resign from office, or delegate authority to the VP, and VP Pence (as Acting President) could pardon him. (See the discussion on the Twenty-Fifth Amendment, above.)

VP Pence could not pardon President Trump for state crimes. The pardon power only works for federal offenses.

Presidential Immunity

What is it?

The President enjoys certain immunities from the law by virtue of the President's unique position in our constitutional system. For example, the President is absolutely immune from civil liability for official actions. But the President is not immune from civil lawsuits for behavior prior to coming to office. 

The Justice Department has long held that a sitting President is immune from federal criminal prosecution while in office. This is not uncontroversial, however, and it's never been tested. At the same time, DOJ has also long held that a President is not immune from federal criminal prosecution after the President leaves office. (Here's the most recent DOJ/OLC memo on this.) 

The Supreme Court ruled just this past summer that a sitting President is not absolutely immune from all state criminal processes. President Trump is not immune from state criminal investigations and more, and he will enjoy no immunity from state criminal indictments or convictions when he leaves office.

What does it mean for President Trump?

President Trump is subject to federal and state criminal indictment and conviction for behavior while in office when he leaves office, and maybe sooner. Traditionally, the DOJ has not pursued criminal charges against a former President. But the Constitution does not forbid this. 

A pardon, of course, would insulate President Trump from future federal criminal prosecution.

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.

D.C. Circuit Says House Committee Minority Can Sue to Get GSA Info

Steven D. Schwinn, University of Illinois Chicago Law School

The D.C. Circuit ruled this week that members of a House committee have standing to sue to enforce their statutory right to obtain information from executive agencies, in this case the General Services Administration.

The ruling means that the plaintiff-House members can pursue their claim to get the information, but it does not say that they'll win. In any event, the case is likely to become moot under President Biden, when the administration seems much more likely to comply with the request. (The ruling is likely to embolden minority Republican House members to ask for information from the Biden Administration.)

The case, Maloney v. Murphy, arose when Democratic members of the House Oversight Committee, then in a minority, sought information from the GSA related to the Agency's lease with a Trump corporation for the Old Post Office. The members invoked 5 U.S.C. Sec. 2954, which authorizes seven members of the House Oversight Committee or five members of the Senate Homeland Security and Governmental Affairs Committee to request and obtain information from any executive agency. The statute functionally allows a minority group of lawmakers on those committees to obtain information from an executive agency, even if the full committee does not seek that same information. 

GSA balked, and the members sued. The district court granted the GSA's motion to dismiss for lack of standing, but the D.C. Circuit reversed.

The court said that the plaintiffs suffered a cognizable informational injury--that the GSA deprived them of information to which they were entitled, and that their lawsuit would redress that injury. 

The court went on to say that the injury was "personal," and not "institutional," and therefore the individual lawmakers had standing. (A personal injury is a direct harm to a person, or in this case a lawmaker; the harmed individual, even if a lawmaker, has standing to sue. An institutional injury, in contract, is a generalized harm to the institution, in this case the Committee; the Committee would have standing, but not an individual lawmaker.) The court explained:

The Requestors do not assert an injury to institutional powers of functions that "damages all Members of Congress and both Houses of Congress equally." The injury they claim--the denial of information to which they as individual legislators are statutorily entitled--befell them and only them. Section 2954 vested them specifically and particularly with the right to obtain information. The 34 other members of the Committee who never sought the information suffered no deprivation when it was withheld. Neither did the nearly 400 other Members of the House who were not on the Committee suffer any informational injury. Nor was the House (or Senate) itself harmed because the statutory right does not belong to those institutions.

Judge Ginsburg dissented:

The Plaintiff-Members here allege harm to the House rather than to themselves personally. Their theory of injury is that the General Services Administration (GSA), by refusing their request for certain documents, hindered their efforts to oversee the Executive and potentially to pass remedial legislation. The Complaint is clear and consistent on this point: The Plaintiff-Members were harmed through the "impedance of the oversight and legislative responsibilities that have been delegated to them by Congress . . . ."

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.

Court Rebuffs Religious School Challenge to State School Closing Order

Steven D. Schwinn, University of Illinois Chicago Law School

The Supreme Court yesterday rejected a religious private school's challenge to Kentucky's school-closing order, at least for now, given that the order is set to expire shortly. But the move allows the religious school to renew its challenge should the order come back into effect in January.

The action differs from another Court action earlier this week, remanding a case that challenges Colorado's capacity restrictions as applied to religious services. In the Colorado case, the Court's action, taken together with its earlier ruling in a New York case, will probably end the state's restrictions--even though the state had already revoked its restriction (in light of the New York case). In other words, the Court seemed to stretch to effectively strike Colorado's restrictions. In the Kentucky case, in contrast, the Court declined to intervene because the restriction is set to expire soon. In other words, the Court stayed its hand, even though the restriction was in place at the time of the ruling, because it would soon expire. 

The case tests Kentucky's school-closing order--an order that applies to all schools (secular and religious) in the state. A religious school challenged the order, arguing that it violated the Free Exercise Clause, because a companion order permitted other in-person activities (restaurants, bars, gyms, movie theaters, indoor weddings, bowling alleys, and gaming halls) to remain open. (This, even though the order treated all schools alike.) A district court issued a preliminary injunction against the school closing order, but the Sixth Circuit stayed the injunction pending appeal (so that the order remained valid as the religious school appealed). The Supreme Court denied the religious school's petition to vacate the stay, largely or entirely because it's set to expire soon.

The Court said "[u]nder all circumstances, especially the timing and the impending expiration of the Order, we deny the application without prejudice to the applicants or other parties seeking a new preliminary injunction if the Governor issues a school-closing order that applies in the new year."

Justices Alito and Gorsuch wrote separate dissents, but joined each other's. Justice Alito argued that the Court should've granted relief, because "timing is in no way the applicants' fault." Justice Gorsuch wrote that the Sixth Circuit failed to consider the school-closing order alongside the business-closing order--and therefore failed to compare the closed religious school to open businesses---in evaluating whether the two orders together discriminated against religion. He also argued that the Sixth Circuit failed to consider a "hybrid" claim, that the school-closing order also violated the fundamental right of parents "to direct the education of their children."

Court Strikes Colorado Covid Restriction on Church

Steven D. Schwinn, University of Illinois Chicago Law School

The Supreme Court effectively struck Colorado's previous Covid-19 capacity restriction as applied to a rural Colorado church and its pastor. The Court vacated a lower court's ruling that upheld the restriction and remanded the case with instructions to reconsider it in light of the Court's ruling last month in Roman Catholic Diocese of Brooklyn v. Cuomo.

The ruling means that the lower court will almost certainly strike Colorado's previous restriction as applied to the church. But because the case tests the previous restriction, it'll have no immediate effect on the plaintiffs or the state.

Today's ruling in High Plains Harvest Church v. Polis comes less than a month after the Court struck New York's Covid-19 capacity restrictions as to the plaintiffs in Roman Catholic Diocese. Today's ruling contains no analysis; it simply vacates the lower court ruling and remands the case in light of that earlier ruling.

High Plains tests Colorado's restriction "dial," which previously treated houses of worship more favorably than comparable "indoor events" and "restaurants," but less favorable than certain "critical" businesses. But after the Court ruled in Roman Catholic Diocese--and specifically in order to comply with that ruling--the state changed its dial and removed specific numeric capacity limitations on churches.

Justice Kagan wrote a dissent, joined by Justices Breyer and Sotomayor. She argued that the Court needn't consider the case, because it's moot. 

The state in Catholic Diocese also removed its restriction before that case came to the Court. The difference in High Plains is that Colorado removed its restrictions specifically in response to the Court's ruling in Catholic Diocese. In other words, Colorado is far less likely to reverse its decision, creating a capable-of-repetition-but-evading-review exception to mootness. This suggests that the Court is either loosening up its mootness exception doctrine, or (more likely) reaching for cases to expand religious freedom under the Free Exercise Clause.

Court Says RFRA Authorizes Money Damages Against Fed Officials in their Individual Capacities

Steven D. Schwinn, University of Illinois Chicago Law School

The Supreme Court ruled on Friday that the Religious Freedom Restoration Act authorizes plaintiffs, when appropriate, to obtain monetary damages against federal officials in their individual capacities. 

The case, Tanzin v. Tanvir, tested the limits of RFRA's remedies. The plaintiffs are Muslims who sued federal officers under RFRA for putting them on the No Fly list in retaliation for refusing to act as informants against their religious communities. The plaintiffs sued for injunctive relief and monetary damages under RFRA's remedies provision. The government argued that RFRA didn't authorize monetary damages against federal officials.

The Supreme Court disagreed. Justice Thomas wrote for a unanimous Court (except Justice Barrett, who did not participate). He noted that RFRA's remedies provision says that a person may sue and "obtain appropriate relief against a government," and that RFRA defines "government" to include "a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States." Justice Thomas wrote that "official" means an actual person (and not just an office), and that the "acting under color of law" language drew on language from 42 U.S.C. Sec. 1983. That provision authorizes monetary damages against state officials in their individual capacities for violations of the federal Constitution and law. "Because RFRA uses the same terminology as Section 1983 in the very same field of civil rights law, 'it is reasonable to believe that the terminology bears a consistent meaning.'"

Justice Thomas went on to write that monetary damages are "appropriate relief," because "damages have long been awarded as appropriate relief" in suits against government officials. He said that monetary damages were particularly appropriate in a case like this, where only monetary damages could remedy a violation.

He rejected the government's argument that this reading would raise separation-of-powers concerns. "But this exact remedy has coexisted with our constitutional system since the dawn of the Republic. To be sure, there may be policy reasons why Congress may wish to shield Government employees from personal liability, and Congress is free to do so. But there is no constitutional reason why we must do so in its stead."