Constitutional Law Prof Blog

New Hampshire High Court Strikes State Voter Registration Proof-of-Residency Law

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

The New Hampshire Supreme Court ruled yesterday that the state's proof-of-residency requirement for voting violated the state constitutional right to vote. The ruling strikes the requirement, SB3, on its face.

The ruling comes just one day after the Supreme Court upheld Arizona's out-of-precinct rule and ballot-collection ban against challenges under Section 2 of the Voting Rights Act. The New Hampshire Court's approach stands in stark contrast to the Supreme Court's approach, in that the New Hampshire Court much more closely scrutinized the state interests behind the voting restrictions (like reducing voting fraud, e.g.)--and concludes that SB3 doesn't serve them. (The plaintiffs in the Arizona case alleged race discrimination in violation of Section 2, whereas the plaintiffs in the New Hampshire case alleged a denial of the right to vote in violation of the state constitution. Still, the difference in approaches is notable, even glaring.)

In this way, the ruling illustrates how state constitutional law could protect against some voting restrictions that the Voting Rights Act (in light of the Supreme Court's ruling) might not.

The case, New Hampshire Democratic Party v. Secretary of State, challenges the state's requirement that voters submit documentation proving their residence (if registering more than 30 days from an election) or select one of two complex and confusing verification options on the voter registration form (if registering less than 30 days from an election). The state adopted the requirements in July 2017; before that, voters simply had to sign an affidavit that they met the identity, citizenship, age, and domicile requirements to vote.

Plaintiffs sued to halt the 2017 requirement, arguing that they violated the state constitutional right to vote. That provision says,

All elections are to be free, and every inhabitant of the state of 18 years of age and upwards shall have an equal right to vote in any election. Every person shall be considered an inhabitant for the purposes of voting in the town, ward, or unincorporated place where he has his domicile.

In particular, the plaintiffs said that "[t]he procedural requirements, associated penalties, and incomprehensibility of SB3 severely and unreasonably burden[] the fundamental right to vote" and that "[t]here is no government interest . . . that justifies requiring New Hampshire voters to endure these burdens."

The court agreed with the plaintiffs. The court applied intermediate scrutiny (the state constitutional standard for voting restrictions that fall between "severe," on the one hand, and "reasonable" and "nondiscriminatory," on the other). It said that the trial court sufficiently found that the requirement unreasonably burdened the plaintiffs (because it's very confusing, and would lead to increased registration times and longer lines at the polls, among other problems), and that the requirements simply did not advance the state's interests in "safeguarding voter confidence, protecting public confidence in the integrity of the State's elections, . . . helping to prevent and protect against voter fraud," and "reducing the administrative cost of post-election investigations." In short, the court deferred to the trial court findings that the state's proof-of-residency requirement simply didn't advance these interests.

 

Court Strikes California's Tax-Exempt Disclosure Requirement

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

The Supreme Court ruled yesterday that California's requirement that tax-exempt organizations operating in the state disclose the names and addresses of their major donors violated the First Amendment.

The ruling strikes California's requirement from the books. It puts similar reporting and disclosure requirements on the chopping block, and it could even lay the groundwork for striking campaign finance disclosure requirements.

The case, Americans for Prosperity Foundation v. Bonta, involved California's requirement that tax-exempt organizations in the state provide to the state attorney general their IRS Form 990, along with Schedule B, which includes the names and addresses of major donors. The state says that it needs the information in order to police misconduct by charities.

Organizations sued, arguing that the requirement violated their First Amendment rights. A sharply divided Court--6-3, along conventional ideological lines--agreed.

The six-justice majority ruled that California's requirement did not sufficiently serve its interest in policing misconduct:

There is a dramatic mismatch, however, between the interest that the Attorney General seeks to promote and the disclosure regime that he has implemented in service of that end. . . .

Given the amount and sensitivity of this information harvested by the State, one would expect Schedule B collection to form an integral part of California's fraud detection efforts. It does not. To the contrary, the record amply supports the District Court's finding that there was not "a single, concrete instance in which pre-investigation collection of a Schedule B did anything to advance the Attorney General's investigative, regulatory or enforcement efforts."

The Court ruled the requirement overbroad and facially unconstitutional, which means that it is unconstitutional not just in this case, but in every conceivable application.

The six-justice majority split on the level of scrutiny to apply to such requirements. Chief Justice Roberts, joined by Justices Kavanaugh and Barrett, argued that "exacting scrutiny" is the right standard for all disclosure requirements, with no least-restrictive-means requirement. Justice Thomas argued that the more stringent strict scrutiny applied. (Justice Thomas also argued that the Court shouldn't rule the requirement facially unconstitutional, just unconstitutional in this case.) Justice Alito, joined by Justice Gorsuch, wrote that he was "not prepared at this time to hold that a single standard applies to all disclosure requirements."

Still, all six agreed that the requirement failed either level of scrutiny in this case, and five (minus Justice Thomas) agreed that it was therefore facially unconstitutional.

Justice Sotomayor wrote the dissent, joined by Justices Breyer and Kagan. Justice Sotomayor argued that the Court wrongly heightened the standard for disclosure requirements, failed to demand that the plaintiffs show a real harm or actual burden, and wrongly held the requirement facially invalid.

In so holding, the Court discards its decades-long requirement that, to establish a cognizable burden on their associational rights, plaintiffs must plead and prove that disclosure will likely expose them to objective harms, such as threats, harassment, or reprisals. It also departs from the traditional, nuanced approach to First Amendment challenges, whereby the degree of means-end tailoring required is commensurate to the actual burdens on associational rights. Finally, it recklessly holds a state regulation facially invalid despite petitioners' failure to show that a substantial proportion of those affected would prefer anonymity, much less that they are objectively burdened by the loss of it.

She noted that "[t]oday's analysis marks reporting and disclosure requirements with a bull's-eye."

Court Upholds Arizona Voting Restrictions, Limits Voting Rights Act

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

The Supreme Court ruled today that two Arizona voting restrictions--the out-of-precinct ban and the ballot-collection ban--did not violate Section 2 of the Voting Rights Act. Along the way, the Court interpreted Section 2 in a way that'll likely make it harder, even much harder, for plaintiffs to successfully challenge the myriad new and proposed state voting restrictions.

The ruling means that Arizona's restrictions stay on the books, and that new and proposed voting restrictions are likely also to pass muster. Under the Court's approach, a plaintiff could, in theory, still succeed in a claim that a facially neutral voting law violates Section 2 because of its disparate impact by race. But it'll be a lot, lot harder. The ruling may make it harder to prove a discriminatory intent claim, too, given the the way the Court analyzed the question, and given the Court's rejection of the "cat's paw" approach in the lower court.

The case, Brnovich v. DNC, tested two Arizona voting restrictions, the out-of-precinct ban and the ballot-collection ban. Under the out-of-precinct ban, election officials discard any ballot cast by a voter on election day in the wrong precinct. Under the ballot-collection ban, it's a crime for any person (except a postal worker, an elections official, or a voter's caregiver, family member, or household member) to collect another person's early ballot.

Plaintiffs argued that the provisions had a disparate impact on the state's Native American, Latinx, and Black voters, and that the ballot-collection provision was enacted with discriminatory intent, all in violation of Section 2 of the Voting Rights Act.

In a sharply divided, 6-3 ruling, along conventional ideological lines, he Court rejected the challenge.

Justice Alito wrote for the majority. He wrote that Section 2(a) bans voting practices that "result in a denial or abridgement of the right to vote on account of race or color," and that Section 2(b) says that this applies only where "the political processes" are not "equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." He acknowledged that subsection (b) requires a "totality of the circumstances approach." Putting the statutory language together, he wrote that

the core of Section 2(b) is the requirement that voting be "equally open." The statute's reference to equal "opportunity" may stretch that concept to some degree to include consideration of a person's ability to use the means that are equally open. But equal openness remains the touchstone.

The Court then identified a nonexhaustive list of circumstances that go to "equal openness" and "equal opportunity." First, it said "the size of the burden imposed by a challenged voting rule is highly relevant." Next, "the degree to which a voting rule departs from what was standard practice when Section 2 was amended in 1982 is a relevant consideration." Third, "[t]he size of any disparities in a rule's impact on members of different racial or ethnic groups is also an important factor to consider." Fourth, "courts must consider the opportunities provided by a State's entire system of voting when assessing the burden imposed by a challenged provision." And finally, "the strength of the state interests served by a challenged voting rule is also an important factor that must be taken into account."

Considering these principles, the Court held that Arizona's restrictions didn't violate Section 2's "equal openness" and "equal opportunity" commands. The Court said that the rules don't pose an unusual burden on voting, and that Arizona acted to mitigate any burdens. The Court said that the plaintiffs failed to show a significant racially disparate outcome for the out-of-precinct policy, and no actual disparity for the ballot-collection ban. And the Court said that the state had valid justifications for the policies, and that the state didn't need to adopt the least restrictive means to achieve those justifications.

The Court went on to hold that the ballot-collection ban was not enacted with a discriminatory purpose in violation of Section 2. It said that any evidence of discriminatory purpose was outweighed by the later "serious legislative debate" that "led to the passage" of the policy. The Court held that the lower court's "cat's paw" theory (which a plaintiff can use in employment-discrimination cases to hold an employer liable for "the animus of a supervisor who was not charged with making the ultimate [adverse] employment decision") had no place in the Section 2 analysis.

Justice Gorsuch concurred, joined by Justice Thomas. He argued that it's not obvious that Section 2 provides an individual cause of action. But he declined to say more, because the parties hadn't raised the point.

Justice Kagan dissented, joined by Justices Breyer and Sotomayor. She started with a comprehensive history of voting rights, discrimination, and the Voting Rights Act, right up to the present day--"a perilous moment for the Nation's commitment to equal citizenship . . . when too many States and localities are restricting access to voting in ways that will predictably deprive members of minority groups of equal access to the ballot." She argued that Section 2's "essential import is plain:"

Courts are to strike down voting rules that contribute to a racial disparity in the opportunity to vote, taking all the relevant circumstances into account.

She argued that by this standard, both of Arizona's restrictions fail. "Considering the 'totality of circumstances,' both 'result in' members of some races having 'less opportunity than other members of the electorate to participate in the political process and to elect a representative of their choice.'"

Illinois Supremes Strike Foreclosure Filing Fee Under State Free Access Clause

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

The Illinois Supreme Court ruled this week that the state's $50 filing fee for residential mortgage foreclosure cases violated the state constitutional Free Access Clause. (H/t Prof. Ann Lousin, author of The Illinois State Constitution, part of the Oxford series.) The ruling means that the state can no longer collect the fee from mortgage foreclosure plaintiffs--and can no longer use the revenues to address foreclosure problems and to "help people who needed help with their mortgage situation and in our foreclosure-plagued society."

The case, Walker v. Chasteen, pitted the state's $50 filing fee for mortgage foreclosure plaintiffs against the state constitution's Free Access Clause. The state adopted the "add on" fee in order to address the mortgage foreclosure crisis of 2010. In particular, the state directed that revenues would go to state programs designed to reduce foreclosures and to "repair or rehabilitat[e] . . . abandoned residential property." The court clerk retains 2% of the fee.

Mortgage foreclosure plaintiffs challenged the fee as violating the state's Free Access Clause. This Clause, a fairly common one in state constitutions (but with no parallel in the text of the U.S. Constitution), protects the right to access the courts. The Illinois version says,

Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property, or reputation. He shall obtain justice by law, freely, completely, and promptly.

(If that sounds familiar, it's because state free-access clauses trace directly from Article 40 of Magna Carta, and Coke's and Blackstone's commentaries on it. They were a mainstay of early state constitutions, and the language was reflected in Marbury v. Madison. Oh, and free-access, especially to remedy violations of human rights, is a universally recognized international human right.)

The court ruled that the fee violated free access. The court said that the fee operated as a "litigation tax," and that it wasn't sufficiently related to the purpose of the fee, under rational basis review:

The charge here has no direct relation to expenses of a petitioner's litigation and no relation to the services rendered. Rather, the charge is assessed solely to raise revenue for the Foreclosure Prevention Fund and the Abandoned Residential Property Fund.

***

We therefore hold that there is no rational basis for imposing this filing fee on mortgage foreclosure litigants, requiring them to bear the cost of maintaining a social welfare program [the programs to reduce mortgage foreclosures in the state], while excluding other classes of taxpayers from the burden. The statutes therefore violate the free access clause.

Justice Theis dissented, arguing that "it is evident that the charges at issue here are indeed rationally related to tackling a foreclosure 'tsunami' affecting the ability of the court system to function. Simply put, that is all that is required to sustain rational basis review."

Court Says Philly's Anti-Discrimination Contract Provision Violates Free Exercise, but Keeps Smith on Books

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

The Supreme Court ruled today that the city of Philadelphia violated Catholic Social Service's free exercise rights when it terminated CSS's foster-care contract pursuant to a clause that prohibits discrimination against same-sex adopting couples, but also allows exceptions at the "sole discretion" of the Commissioner.

At the same time, the Court declined to reconsider Employment Div., Dep't of Human Resources of Oregon v. Smith, which holds that religiously neutral and generally applicable laws that have an incidental burden on religion must only satisfy rational basis review.

As a result, the ruling is a short-term victory for CSS (which the city will likely quickly undo--see below). But it puts off the Big Issue--whether Smith is still valid law--for another day. (This issue will certainly come back to the Court, and the Court will almost certainly change the rational-basis test in Smith, raising the standard of review and thus making it easier for religious groups or individuals to challenge neutral, generally applicable laws. It's just a matter of when.)

The case, Fulton v. City of Philadelphia, arose when the city informed CSS that the city could no longer contract with CSS for foster-care services so long as CSS refused to certify same-sex couples as foster-care parents. (Instead, CSS said it would refer such a certification to another social-services agency.) The city claimed that CSS's refusal to certify same-sex couples violated a non-discrimination provision in its contract with the city and the city's Fair Practices Ordinance. CSS sued, arguing that the City violated its free exercise rights, and urging the Court to overturn Smith.

The Supreme Court agreed. Chief Justice Roberts wrote the opinion, joined by Justices Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett. The Court held that the anti-discrimination contract provision was not generally applicable, because it allows the Commissioner to grant an exception in the Commissioner's sole discretion. Moreover, the Court held a second contractual provision, which categorically barred discrimination (with no exceptions), had to be read in harmony with the exception in the first provision--in other words, that the exception still applied. Finally, the Court held that the city's Fair Practices Ordinance didn't apply, because foster care isn't a "public accommodation" under the Ordinance.

Because no generally applicable law applied, the Court said that Smith was the wrong test. Instead, the Court applied strict scrutiny (under Church of Lukumi Bablu Aye, Inc. v. Hialeah). The Court held that the city lacked a sufficiently compelling interest to exclude CSS, and ruled that the city's action violated the Free Exercise Clause.

The ruling is narrow--it hangs on the exception in the non-discrimination clause in the city's contract with CSS. As a result, the city can easily dodge a free exercise problem by simply omitting the exception from the clause in its contract with CSS. (The city says it never used the exception, anyway.)

Moreover, the ruling doesn't do anything to Smith or the rational-basis test for religiously neutral, generally applicable laws that incidentally burden religion. This question will surely come back to the Court, though (maybe even in a next round in this very case, if the city omits the exception from its contract and holds CSS in violation). And when it does, the Court will almost certainly change the test, making it easier for religious groups or individuals to challenge neutral, generally applicable laws as violating free exercise.

Justice Barrett concurred, joined by Justice Kavanaugh and (in part) Justice Breyer. She noted that the Court would need to work through a number of questions before it overruled Smith, and that the best approach might not be to categorically apply strict scrutiny to these kinds of claims.

Justice Alito wrote a sharp and lengthy concurrence, joined by Justices Thomas and Gorsuch. He argued that the Court should overrule Smith and replace it with the test that preceded Smith (in Sherbert) and that Congress later adopted in the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act: "A law that imposes a substantial burden on religious exercise can be sustained only if it is narrowly tailored to serve a compelling government interest."

Justice Gorsuch wrote his own concurrence, joined by Justices Thomas and Alito. He argued that the Court likely got it wrong on the applicability of the Fair Practices Ordinance--that in fact, the Ordinance "is both generally applicable and applicable to CSS"--and on the separate contract provision that categorically prohibited discrimination. Justice Gorsuch argued that the Court's attempts to maneuver around Smith thus failed, that the Court should've addressed Smith, and that it should've overturned it.

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.

Cole, Jaffer, and Olson on FISA Court Transparency

Check out David Cole, Jameel Jaffer, and Ted Olson's piece in the NYT on transparency at the Foreign Intelligence Surveillance Court. The FISC "authorizes panoramic surveillance programs that can have profound implications for the rights of millions of Americans, but many of its significant decisions have been withheld from the public."

The three and others teamed up on a cert. petition, asking SCOTUS to rule on whether the First Amendment provides a qualified right of public access to the FISC's significant opinions. (The FISC and the Foreign Intelligence Surveillance Court of Review both ruled that they lacked jurisdiction to hear the question.) The Court hasn't yet decided whether to take up the case. Here's the docket, with amicus briefs supporting the cert. petition.

Check it Out: The 100 Scholars' Letter on Threats to Democracy

One hundred political scientists issued a Statement of Concern this week, detailing "the threats to American democracy and the need for national voting and election administration standards." Here's a bit, referring to state efforts to restrict the vote:

In future elections, these laws politicizing the administration and certification of elections could enable some state legislatures or partisan election officials to do what they failed to do in 2020: reverse the outcome of a free and fair election. Further, these laws could entrench extended minority rule, violating the basic and longstanding democratic principle that parties that get the most votes should win elections.

Democracy rests on certain elemental institutional and normative conditions. Elections must be neutrally and fairly administered. They must be free of manipulation. Every citizen who is qualified must have an equal right to vote, unhindered by obstruction. And when they lose elections, political parties and their candidates and supporters must be willing to accept defeat and acknowledge the legitimacy of the outcome.

 

Court Says Tribal Officer Can Detain, Search Non-Native American on Public Road in Reservation

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

The Supreme Court ruled today that a tribal officer may temporarily detain and search a non-Native American person traveling on a public road through Native American land for potential violations of state and federal law.

The case, United States v. Cooley, arose when James Saylor, a Crow Police Department officer, detained and searched the vehicle of Joshua James Cooley, a non-Native American, on a public highway running through the Crow Reservation (in Montana). After observing the suspect's watery and bloodshot eyes, Saylor searched Cooley's vehicle and found drug paraphernalia and two rifles. Saylor took Cooley to the Crow Police Department, where federal and local officers questioned him. A federal grand jury indicted Cooley, but the lower courts granted his motion to suppress the drug evidence on the ground that Saylor lacked authority to stop and detain a non-Native American on tribal land.

A unanimous Supreme Court reversed. The Court said that while as a "general proposition," the "inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe," a tribe retains authority over nonmembers "when that conduct threatens or has some direct effect on . . . the health or welfare of the tribe." The Court said that Saylor's temporary detention of Cooley fell squarely into that exception, and that Saylor's search of Cooley's vehicle was ancillary to Saylor's authority to detain Cooley.

The ruling means that tribal officers have authority to temporarily detain non-Native Americans on public roads running through tribal land upon suspicion of a violation of state or federal law; to search the suspect's vehicle incident to arrest; and to transport the suspect to the appropriate authorities.

Court to Take Up Challenge to Right to Abortion, Roe v. Wade

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

The Supreme Court agreed to hear a case challenging Mississippi's ban on abortions after 15 weeks of pregnancy, except in cases of medical emergencies or severe fetal abnormality. The case, Dobbs v. Jackson Women's Health Organization, threatens the fundamental right to an abortion under Roe and Casey.

That's because with the addition of Justice Barrett (replacing Justice Ginsburg), there are now six solid votes against the fundamental right to an abortion. This counts Chief Justice Roberts, who only begrudgingly voted to overturn state restrictions on abortion last Term in June Medical. Chief Justice Roberts joined the four progressives in that case, but wrote separately to base his vote on stare decisis, and the Court's 2016 decision in Hellerstedt, a case with virtually identical facts. There's no guarantee that he'd vote to uphold or defer to Roe and Casey in the same way. Even if he did, though, there'd still be five likely votes to overturn Roe.

Still, the case gives the Court some room to sharply curtail the right to abortion without necessarily overturning Roe.

The QP is whether all pre-viability prohibitions on elective abortions are unconstitutional. Here's the cert. petition; here's the Court's docket.

 

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.

Court Halts CDC Eviction Moratorium

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

Judge Dabney L. Friedrich (D.D.C.) ruled that the CDC lacked authority to issue its nationwide eviction moratorium. At least six other federal courts have ruled on the moratorium; all but two have halted it.

The court ruled that while the agency has some authority under the Public Health Service Act to prevent the spread of communicable diseases, it doesn't have the authority to issue a moratorium on evictions. The court said that an eviction moratorium isn't "similar in nature to" the list of examples of the kinds of actions the CDC may take under the Act.

The court rejected the government's argument that Congress ratified the eviction moratorium, and the CDC's authority to implement it under the Public Health Service Act, in the Consolidated Appropriations Act. The court noted that while the Consolidated Appropriation Act extended the moratorium until January 31, 2021, it said that Congress didn't specifically ratify the CDC's reading of the Public Health Service Act as authorizing the agency to implement the moratorium. It held that "[b]ecause Congress withdrew its support for the CDC Order on January 31, 2021, the order now stands--and falls--on the text of the Public Health Service Act alone." And, as above, that's not enough, according to the court.

The court wholly vacated the moratorium, not, as the government argued, only as to the plaintiffs in this case.

Judge Orders DOJ to Release Advice on AG Barr's Summary of Special Counsel Report

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

Judge Amy Berman Jackson (D.D.C.) ordered the Justice Department to release a memo that contains advice to former Attorney General Barr on his infamous four-page summary of the Mueller Report and his conclusion that evidence in the report didn't support an obstruction-of-justice case against former President Trump. Judge Jackson gave DOJ until May 17 to comply and release the memo, or to file a motion to stay pending appeal.

The case, Citizens for Responsibility and Ethics in Washington v. U.S. DOJ, arose when CREW filed a FOIA request for any records related to consultations between former AG Barr and DOJ's Office of Legal Counsel related to his four-page summary of the Mueller Report and his conclusion that the report didn't contain sufficient evidence to charge Trump. Barr mentioned that he had consulted with OLC in relation to his four-page letter, and his conclusion that its evidence "is not sufficient to establish that the President committed an obstruction-of-justice offense," when he later testified before Congress. (Recall that Barr purported to summarize the Mueller Report in this widely panned letter before the Report's public release. The letter misleadingly said that the Special Counsel "did not draw a conclusion--one way or the other--as to whether" former President Trump committed obstruction of justice. Barr concluded that the Report didn't contain sufficient evidence to charge Trump with obstruction.)

DOJ argued that the OLC advice was protected under FOIA Exemption 5 and the deliberative process and attorney-client privileges. Judge Jackson rejected those claims.

In short, based on an in camera review of the documents, the court recognized that Department officials wrote Barr's four-page letter before and during the time when it wrote the OLC memo. In other words, the OLC memo couldn't have been part of deliberations leading to Barr's letter, and it couldn't have provided legal advice related to Barr's letter, because Department officials drafted the letter before and simultaneously with Barr's letter. To put the finest point on it: the AG and DOJ already decided not to prosecute former President Trump before the Department wrote the OLC memo.

The court sharply criticized Barr and Department officials who provided affidavits, given that the plain evidence contradicted their claims. Here's just a flavor, on the court's analysis of the deliberative process privilege:

And of even greater importance to this decision, the affidavits are so inconsistent with evidence in the record, they are not worthy of credence. The review of the unredacted document in camera reveals that the suspicions voiced by the judge in EPIC and the plaintiffs here was well-founded, and that not only was the Attorney General being disingenuous then, but DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege. The agency's redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the excised portions belie the notion that it fell to the Attorney General to make a prosecution decision or that any such decision was on the table at any time.

The ruling gives the DOJ until May 17 to comply and release the memo, or to appeal.

First Circuit Declines to Halt Geography-Based School Admissions Program

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

The First Circuit last week declined to enjoin Boston Public School's geography- and income-based admissions program for its elite magnet schools. The ruling says that plaintiffs are unlikely to succeed on their equal protection challenge to the admissions program.

The case, Boston Parent Coalition for Academic Excellence v. School Committee of the City of Boston, challenges the Boston Public School's admission program to Boston Latin School, Boston Latin Academy, and John D. O'Bryant School of Mathematics and Science for the 2021-22 school year. With more applicants than the schools could admit, the system turned to a two-phase admissions process. In the first phase, all students are ranked city-wide by GPA; the highest-ranked students are assigned their first choice until 20 percent of each school's seats are full. In the second phase, the 80 percent remaining seats are distributed among the city's various zip codes by population. Students are ranked by GPA within their zip codes and compete for admission with other students within their zip codes. The program admits top-ranked students in the zip code with the lowest household median income first, then moves to the zip code with the next lowest income, and so on, through the zip codes by incomes, lowest to highest.

Based on projections, Black and Latinx students would receive fewer seats than their proportional representation in the school-age population at large. White and Asian students, by contrast, would receive proportionally more seats.

Still, White and Asian students sued, arguing that they'd receive disproportionally even more seats without the zip-code-income-based program. They claimed that the program violated equal protection, because it was based on purposeful racial discrimination.

The First Circuit rejected the claim. It said that the program was racially neutral on its face, and that the plaintiffs failed to make out an Arlington Heights case of unconstitutional discriminatory impact. The court noted that the numbers alone didn't reveal a disparate impact on White or Asian students, and that the plaintiffs failed sufficiently to point to other circumstantial evidence of racial intent.

In particular, the court rejected the plaintiffs' claim that the program was impermissibly based in part on the Board's desire to diversify the schools by socioeconomic status, race, and geography: "the mere invocation of racial diversity as a goal is insufficient to subject [a facially neutral school selection plan] to strict scrutiny."

It also rejected the plaintiff's claim that some of the people involved in developing the policy sought to achieve racial balancing. "The fact that public school officials are well aware that race-neutral selection criteria--such as zip code and family income--are correlated with race and that their application would likely promote diversity does not automatically require strict scrutiny of a school system's decision to apply those neutral criteria."

The ruling leaves the program in place while the case proceeds. As a practical matter, the ruling almost certainly (absent something extraordinary) allows the Boston schools to use the program for the 2021-22 school year.

State Price-Gouging Laws Don't Violate Dormant Commerce Clause for Products on Amazon

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

The Sixth Circuit ruled that enforcement of Kentucky's anti-price-gouging laws to Kentucky products sold on Amazon doesn't clearly violate the dormant commerce clause. The preliminary ruling allows the Kentucky AG to enforce the state's anti-price-gouging laws against Kentucky businesses who sell products on Amazon, even though Amazon rules mean that those businesses must sell their products for the same price to customers in different states.

The case, Online Merchants Guild v. Cameron, arose when Kentucky businesses started charging outsized prices for hand sanitizer, disinfecting wipes, masks, and other cleaning and COVID-protective products on Amazon. The state AG opened civil price-gouging investigations, and the businesses sued.

The businesses argued that application of the state's anti-price-gouging laws would require them to drop their prices for products sold in Kentucky and, under Amazon's rule that retailers sell their products for a single price to customers in different states, other states as well. They claimed that this meant that Kentucky's laws would apply extraterritorially and thus create a nationwide "price ceiling," in violation of the dormant commerce clause.

The district court agreed and granted a preliminary injunction. But the Sixth Circuit reversed.

The court held that any extraterritorial effect of the state's laws was due to Amazon, not the laws themselves, and that Amazon's rules broke any "direct or inevitable" link between the state laws and their effects:

It does not follow, however, that Kentucky's price-gouging laws are unconstitutional--a state law's effect on out-of-state commerce must be direct or inevitable to be invalid under the extraterritoriality doctrine. That is not the case here because the effect of Kentucky's price-gouging laws depends entirely upon Amazon's independent decisions in how it structures its online marketplace. If Amazon allowed for state-specific pricing or allowed third-party sellers to limit where their goods were sold--and no one contends that Amazon lacks the power to structure its marketplace in this fashion--then there would be no effect at all on interstate commerce (or at most the effect would be de minimis).

In other words, without Amazon's rule, the Kentucky AG could enforce state laws against these Kentucky businesses, reducing the prices they charge to Kentuckians, but still allowing them to charge outsized prices to customers in other states.

The court vacated the district court's preliminary injunction and remanded for further proceedings.

Second Circuit Rejects Bar Applicant's Disability Claim Citing State Sovereign Immunity

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

The Second Circuit ruled that the New York State Board of Law Examiners didn't waive state sovereign immunity under the federal Rehabilitation Act, even though certain state courts of original jurisdiction did. As a result, a bar applicant who was denied an accommodation could not sue the Board for monetary damages.

The case, T.W. v. New York State Board of Law Examiners, began when the Board denied T.W. a requested accommodation for the bar exam. T.W. sued under the Rehabilitation Act, but the Board argued that it enjoyed state sovereign immunity under the Eleventh Amendment. The Board claimed that it didn't waive immunity under the Rehabilitation Act, because it didn't receive federal funding and it wasn't a "program or activity" of a "department, agency . . . [or] instrumentality" that had received funding. (The Rehab Act conditions the receipt of federal funds on waiver of state sovereign immunity.)

The Second Circuit agreed with the Board. The court first rejected T.W.'s claim that the Board received federal funding (and thus waived state sovereign immunity) because other state agencies provide reimbursement to bar applicants for the applicants' own out-of-pocket exam fees. "No money from [the other state agencies] ever gets paid to the Board; the money gets paid directly to the candidate after she has paid her examination fees." Moreover, "[t]he Board is, at most, an indirect beneficiary of the federal funding that [the other state agencies] receive, but this alone does not waive the Board's immunity."

Next, the court held that while some state trial courts received federal funding, the Board wasn't part of those courts. The court acknowledged that some state specialty trial courts received federal funding. It held that the relevant "department or agency" that received federal funding was therefore the state courts of original jurisdiction (and not the state's overall Unified Court System). But because the Board isn't part of the state's courts of original jurisdiction, the Board didn't waive immunity.

Ninth Circuit Upholds California's Worker-Contractor Classification Law Against Federal Preemption

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

The Ninth Circuit ruled that the Federal Aviation Administration Authorization Act did not preempt California's law that classifies workers as either employees or independent contractors. The ruling means that the state law stays on the books.

The case is a win for workers, because employers are much more likely to have to treat their workers as "employees" under state law (with all the attendant benefits) rather than contractors.

The case splits with the First Circuit, which held in Schwann v. FedEx that the FAAAA did not preempt an identical Massachusetts law.

The case, California Trucking Association v. Bonta, arose when the CTA sued the state AG to halt to the state's enforcement of its "AB-5 test" for classifying workers as either employees or independent contractors. The AB-5 test says that workers are "employees," not independent contractors, "unless the hiring entity demonstrates that all of the following conditions are satisfied":

(A) the person is free from the control and direction of the hiring entity in connection with the performance of the work . . . . (B) The person performs work that is entirely outside the usual course of the hiring entity's business. (C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

As compared to prior state law, the test leans heavily in favor of "employee," because it presumes a worker is an employee unless a "hiring entity" could establish all three parts of the test, one of which (part (B)) was previously only a factor (not a determinate element) in the analysis.

According to CTA, SB-5 would increase its members' costs "by as much as 150% or more," because they'd have to treat more workers as "employees."

CTA claimed that the FAAAA preempted SB-5. It pointed to the FAAAA's express preemption clause, which says that the federal act preempts any state law "related to a price, route, or service of any motor carrier . . . with respect to the transportation of property."

The Ninth Circuit rejected the claim. The court ruled that AB-5 applies across industries (and doesn't single out the trucking industry) and only affects the employment relation, not "a price, route, or service" (at least not directly).

Because AB-5 is a generally applicable law that impacts a motor carrier's business at the point where the motor carrier interacts with its workers, and the law affects motor carriers' relation with their workers in a manner analogous to the worker classification laws we have previously upheld . . . AB-5 is not significantly related to rates, routes, or services. Therefore, we conclude that the [FAAAA] does not preempt AB-5 as applied to motor carriers.

Judge Bennett dissented, arguing that "the majority's rule ignores the possibility [as here] that a state law might affect a motor carrier's relationship with its workforce and have a significant impact on that motor carrier's prices, routes, or services . . . ."

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 SSA Applicants Need Not Raise Appointments Clause Challenges with Agency

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

The Supreme Court ruled last week that individuals whose applications for Social Security disability benefits were denied did not have to raise their Appointments Clause challenges with the agency; instead, they could raise those challenges for the first time in court. The ruling means that applicants who failed to raise constitutional challenges to the appointments of their administrative law judges could nevertheless raise those challenges in court.

The case, Carr v. Saul, arose when SSA ALJs rejected the appeals of certain applicants for SSA disability benefits. The applicants appealed to the agency's Appeals Council, but the Council denied review.

The Supreme Court then issued its ruling in Lucia v. SEC, holding that the appointment by SEC ALJs by lower-level staff violated the Appointments Clause. (The Court held that ALJs were "officers" under the Appointments Clause and thus couldn't be appointed by SEC staff.)

Based on Lucia, the applicants argued in federal court that the SSA ALJs who decided their cases were similarly invalidly appointed, and that the ALJs' decisions should be vacated. The SSA claimed that the applicants forfeited that argument, because they didn't raise it before the agency in the first place.

The Supreme Court agreed with the applicants. The Court held that ALJ proceedings weren't sufficiently adversarial to trigger an issue-exhaustion requirement. Moreover, it held that "agency adjudications are generally ill suited to address structural constitutional challenges," and that agency review would be futile, anyway.

The ruling's a victory for the applicants in this case, and for any other individuals who seek to challenge the appointment of an ALJ in the wake of Lucia.

Eleventh Circuit Says No Clearly Established Right to Photo Police on Highway

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

The Eleventh Circuit ruled last week that a witness to a highway accident didn't have a clearly established right to photograph police activity on the median. The court granted an officer qualified immunity against the witness's First Amendment claim and dismissed the case.

The case, Crocker v. Beatty, arose when James Crocker stopped to take pictures of an accident on the median of I-95 in Florida. Martin County Deputy Sheriff Steven Beatty confiscated Crocker's phone and placed him in a patrol vehicle. Crocker sued, alleging a violation of his First Amendment right to free speech, among other things.

The Eleventh Circuit ruled that Beatty enjoyed qualified immunity, because Crocker had no clearly established right to photograph police activity on a highway median. The court said that circuit precedent, Smith v. City of Cumming, established only that "[t]he First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest." The court said that this was too vague a statement to create a clearly established right to photograph police "on the median of a major highway at the rapidly evolving scene of a fatal crash," in "the chaos of a fatal car crash," by "a citizen who (as we will explain shortly) might well have been photographing the incident from an unlawful vantage point" (although Beatty specifically told Crocker that he wasn't violating the law).

Judge Martin dissented, arguing that Smith clearly established the right.