The Future of the Administrative State Is Being Written Now

With Election Day looming on November 3, the next five months are critical in shaping the agendas of the agencies that regulate labor and the workplace. Whatever the outcome of the election, there is a flurry of regulatory activity still on the horizon at the Department of Labor (DOL) and the National Labor Relations Board (NLRB).

The usual patterns of the sunset of one administration and the dawning of a new administration are familiar. The incumbent administration attempts to push through a number of regulations before its possible departure, and the hopeful incoming administration prepares plans to implement on day one, looking to reverse many of the changes of the last four years.  There are certainly plenty of those kinds of items on the agenda of each federal agency, but the dockets of the NLRB and the DOL are particularly full.

The National Labor Relations Act (NLRA) and unions

The NLRB (or “the Board”) recently has been prone to rulemaking to narrow the coverage of employee status under the National Labor Relations Act (NLRA).  For example, earlier in the Trump administration, the Board was refusing to hear charges or petitions of gig workers.  Additionally, long running issues about whether graduate students in private universities can bargain and the use of email and cell phones in union organizing campaigns have been at the top of the regulatory agenda of the Trump NLRB. This led to two recent calls for notice and comment by the public.

In the Mountaire Farms case, the Board has invited amicus briefs on the “contract bar” doctrine in a case involving a meat processing plant in Delaware with a pending petition to remove the existing union. The plant has been the source of multiple safety issues during the Covid-19 pandemic and is owned by the Cameron family, who are politically connected to the Republican Party and to President Trump as detailed in a July article in the New Yorker.

The contract bar rule as it currently stands provides for stability in bargaining relationships, preventing employees dissatisfied with their unions from holding a new union election until the current agreement expires.  The contract bar rule was a compromise between the ability to remove incumbent unions and the stability that is needed for collective bargaining to be successful in the way that Congress intended. Unfortunately, too many employers hide behind the rule to avoid their legal obligations to their workers. If the Board eliminates the contract bar doctrine, many more workers would lose collective bargaining rights.

The reversals of rules depending on which political party has a majority on the Board is enough to make one’s head spin like Linda Blair’s in The Exorcist. The Board usually makes rule changes by adjudication and that will invariably lead to the dissatisfaction of those who do not like the substance of the rule, but also leads to the frustration of those seeking stability in the rules. The NLRB has responded by making rules through the notice and comment process that purport to give some certainty to these questions.  Besides the fact that the rules seem out of touch with both reality and the intent of the 1935 Congress to “extend the practice and procedure of collective bargaining to the highest number of employees,” the stability that these rulemakings offer is illusory.  Enter a new Administration; so, begins a new rulemaking to reverse the previous rule.

In some ways, the last four years at the NLRB have been as predictable as the Board of the prior Republican Administrations.  The new focus on rulemaking however shows that this Board is looking for structural changes to limit collective bargaining.  This focus on destabilizing long standing doctrine to make it harder for employees to use the rights guaranteed by Congress is unique to the Trump NLRB.

The Fair Labor Standards Act (FLSA) and Family Medical Leave Act (FMLA)

So too with the DOL. The overtime rules of the Obama administration were put on ice by the federal courts, but the Trump administration put their own ice on overtime rules under the FLSA for three years by delaying instituting a new rule. While claiming to find a standard which would expand access to overtime without being “burdensome” on employers, the truth is that there was much infighting about how far the DOL should even go in regulating the employment relationship – which is after all its central mission.

Nonetheless, after three years the DOL finally proposed a new rule.  If Vice President Biden wins the election there will likely be an immediate move to return to Obama’s 2016 rule and predictably the return of litigation in business-friendly federal judicial districts in more conservative states. There will still be matters to litigate that previous injunctions did not resolve, such as the authority of the DOL to set a salary level for exemption from overtime law at all. This will require a basic examination of authority that goes to the heart of many of the administrative law battles going on in other courts and in the Supreme Court, which will outlast whomever is in charge of the next Administration.

During the COVID-19 pandemic, access to family leave has become more important than before. Until September 14, the DOL is requesting information from the public about ways to provide more information to employees about their rights under the FMLA. Many have weighed in with comments, including one of my students and I, which give suggestions for how to expand information about existing FMLA rights.  As we have seen, however, the Supreme Court is the ultimate arbiter of those rights through  their decisions, including Ragsdale v. Wolverine World Wide, where the Court limited the tools available to the DOL to remedy violations of the notice posting rules.  In spite of the Supreme Court’s Ragsdale ruling, the Department could have gone much further in mandating the distribution of information, particularly in light of the Covid-19 pandemic.

Underlying these policies issues within DOL and NLRB is a recognition of possible fundamental change within the entire administrative state. From the debates in the United States Supreme Court over obscure doctrines like the nondelegation doctrine, it is clear the agencies can do what they will, but the nine justices will decide whether to defer to agency, or to strike them down in the name of “nondelegation.”  It remains to be seen whether the majority of the Supreme Court will take the same hard look to Trump administrative agency actions in the workplace as it has to the actions of other administrations.

 

No Law School Should be Named for John Marshall

Chief Justice John Marshall may be the most influential judge in American history. He authored many decisions that shape our democratic republic even today. As a result, three law schools are named in his honor. But Marshall has another, darker, legacy—that of a slave lord who bought and sold other human beings to support his plutocratic lifestyle. Even worse, Marshall allowed his slaveholding interests to taint his work as a judge. He undermined the rule of law by ignoring precedent in cases involving slavery. He engorged power and unjustly enriched himself. Thus his full legacy, though complicated, is one we should not honor. No schools of law should bear his name.

John Marshall: A Framer of Constitutional Law

Marshall served as Chief Justice of the United States from 1801-1835. Early in his tenure he authored the single most important judicial opinion in American history, Marbury v. Madison (1803), which established judicial review. By giving the Court power to declare legislative acts and executive actions unconstitutional, he in a sense became an unnamed co-author of all subsequent landmark constitutional decisions. Without Marbury, there could be no Dred Scott nor Brown. Hard to overstate his influence.

We celebrate his legacy in many ways, most notably, by having named three law schools in his honor, in Chicago, Cleveland, and Atlanta. Law professors tell students at these schools, many of them Black, that their careers, to be spent in the pursuit of “equal justice under law” as engraved on the Supreme Court building, will underscore Marshall’s legacy.

But does equal justice denote John Marshall’s true legacy, if we move beyond Founding Era hagiography? What about Marshall’s practice of routinely perverting the law in favor of slaveholding interests, against the rights of enslaved people? What about his legacy as corrupt judge who undermined the rule of law? Is he truly a role model for law students or anyone else?

The Rule of Law Defined

John Adams said ours is a “government of laws and not of men.” The rule of law had replaced the “divine right of kings.” But what does “rule of law” mean?

A legal maxim that defines the rule of law is: “no one should be a judge in their own cause.” In other words, a judge shouldn’t decide a case if they have a conflict of interest.

A classic example of this maxim is Dr. Bonham’s Case (1610). The Royal College of Physicians charged Dr. Bonham with practicing medicine without a license. The College tried Bonham in its own court and found him guilty. It imprisoned him and fined him. It proposed to pocket half the fine. But Sir Edward Coke reversed the decision.

Regarding the fine, Coke stated that physicians: “cannot be judges, ministers, and parties; judges to give sentence or judgment; ministers to make summons; and parties to have the moiety [half] of the forfeiture.” He explained why: “someone ought not be a judge in his own cause, for it is unfair for someone to be a judge in his own affairs.”

Coke went on to equate the common law with the law of the land. Dr. Bonham’s Case thus stands for the principle that any Act of Parliament that is against reason may be voided through common law. John Marshall restated the principle in Marbury: “A law repugnant to the Constitution is void.”

John Marshall’s Slavery Jurisprudence and the Rule of Law

Marshall owned hundreds of slaves throughout his lifetime. He traded in slaves and in the 1830s auctioned off some of them to pay off his son’s debts. And yet the Virginian slave lord heard roughly 50 cases involving slavery during his 34-year tenure as chief justice. His jurisprudence was always proslavery, even when stare decisis, the rule that judges should abide by decided cases and apply their rules, favored the Black litigant. Nor did public policy, insofar as it supported Black freedom, ever persuade him to rule for the Negro.

The Marshall Court heard 14 cases involving freedom claims. Marshall wrote seven of those opinions. They concerned Negroes living in Washington, D.C., which, as federal territory, was within Supreme Court jurisdiction.

If Marshall had respected the rule of stare decisis in these cases, he would have applied Virginia or Maryland law to alleged slaves living in Washington, D.C. But Marshall repeatedly ignored state law or precedent on slavery to rule against Black plaintiffs. He never construed statutes if doing so led to Black freedom. A couple of examples should suffice:

In Scott v. Negro London (1806) Marshall reversed a jury verdict for Black freedom. London sued for freedom in D.C. under a Virginia law prohibiting importation of slaves. A jury of twelve white men, some probably slaveholders, concluded London was free because he was illegally imported into Washington. The trial court strictly construed Virginia slave law. As legal scholar Paul Finkelman observed: “This result was consistent with other decisions from American state courts of the period that strictly applied statutes regulating slavery and at the same time liberally construed the common law in favor of liberty.” Marshall, nevertheless, construed the statute for a pro-slavery result.

In Scott v. Negro Ben (1810) Ben had been brought into Washington County, which was then governed by Maryland law. Ben’s owner failed to properly register him, so Ben sued for freedom. The jury declared him free, since Ben’s owner hadn’t followed the statutory procedure. Marshall reversed. And yet Marshall admitted in his opinion that: “The act, in its expression, is certainly ambiguous, and the one construction or the other may be admitted, without great violence to the words which are employed.”

Marshall concedes that he could have decided the case either way because of its ambiguity. He could have resolved it in favor of liberty and natural rights. He could simply have let the jury verdict stand. But his ruling was what we’d expect from a Virginian slave lord with massive financial investments in human beings. His rule-of-law hypocrisy lay bare for all to see—natural rights for contracts and property; total refusal to apply natural rights when it came to the crime against humanity that was slavery.

The Final Verdict on John Marshall: Take His Name Off Law Schools

 John Marshall’s slavery jurisprudence is an embarrassment to anyone who takes the rule of law seriously. His moniker “Great Chief Justice” mocks the courts and especially Black people who seek justice in them. That is why I recently signed a petition calling for the three law schools named after him to change their names on account of his slaveholding. My tax dollars as a Cleveland resident have gone towards one of them—Cleveland-Marshall College of Law. We the People must question the legitimacy of a legal system that would honor a judge who valued his own profiteering, engorgement, and unjust enrichment over the rule of law.

 

 

 

Rulings in Flynn and McGahn Cases: What Might Be Next?

On the last day of August, the D.C. Circuit handed down decisions in two cases of great public interest. The first was the effort by retired General Michael Flynn to prevent District Judge Emmet Sullivan from holding a hearing on the Department of Justice’s motion to allow Flynn to withdraw his guilty plea and dismiss all the charges against him. The second was in the lawsuit by the Judiciary Committee of the House of Representatives to obtain the testimony of former White House Counsel Donald McGahn as part of its impeachment investigation of the President. Although these were both significant rulings, they – like so many of those in politically charged cases – are almost certain not to be the last word. I have dusted off my well-used crystal ball and am prepared to reveal what it said.

This was the second ruling by the D.C. Circuit in the Flynn case this summer. In the first, a divided panel enjoined Judge Sullivan from even holding a hearing on the Government’s motion, on the theory that there was no lawful basis for denying it. The full court then heard the case, and this time Flynn lost by a vote of 8-2, with the majority concluding that his plea was premature and that, until Judge Sullivan ruled against him, the court of appeals would not intervene.

Flynn now has two choices. He can ask the Supreme Court to overturn this decision, or he can proceed with the Government’s pending motion before Judge Sullivan. There are risks and rewards to him and the Government under both options. On the first, the Supreme Court will almost certainly not act on such a request in a hurry, even if a majority agreed that Sullivan should simply have granted the DOJ’s motion, as the dissenters in the circuit court concluded. This is, after all, an election year, and jumping in when there has not even been a hearing, let alone a ruling from the district court, would be seen as validating the claim that the willingness of the DOJ to allow Flynn to withdraw his guilty plea was based entirely on the wishes of the President for whom Flynn worked briefly.

Moreover, if Flynn does seek High Court review, Judge Sullivan would almost certainly not hold the hearing until the Court acted, which might be some time. And if the Court granted review, that would probably mean the case would not be argued until after January 20, 2021, when the President might be Joseph Biden and not Donald Trump. In that case, a new Attorney General might reverse positions once again, and rescind the motion to set aside Flynn’s guilty plea, thereby mooting the case and permitting Judge Sullivan to sentence Flynn. On the other hand, if Flynn does not seek immediate Supreme Court review, Judge Sullivan is likely to hold a hearing in the near future and rule well before next January. And, of course, if things go badly for Flynn, the President could pardon him, as he did for Roger Stone. For all those reasons, my bet is on Flynn taking his chances before Judge Sullivan, but then I would not have predicted he would have tried or even been initially successful in the D.C. Circuit.

The McGahn case presents a narrower set of likely choices, but there are considerable uncertainties about what happens after it obtains a favorable circuit court ruling. The case is a subpoena enforcement action made necessary when the President instructed his former counsel not to provide the testimony that the Judiciary Committee sought. The district court enforced the subpoena, but a divided panel concluded that the House had no standing to sue to enforce its subpoena against a high-ranking member of the President’s staff. Like the initial Flynn decision, that did not last long, as the court granted en banc review and reversed the decision, creating a major precedent that the House and Senate have standing to enforce subpoenas issued to executive branch officials.

There were, however, two other grounds on which McGahn argued against the subpoena. The en banc court could have ruled on them at the same time, but it did not, instead sending them back to the same judges who had previously ruled against the House. Although the court did not explain that choice, there was one fairly obvious reason why it did not complete its job: if it had done so, there would have been a final judgment and the President’s lawyers would almost certainly have sought review in the Supreme Court, with a significant likelihood that it would be granted.

But sending the case back to the original panel entailed risks, and they materialized when the two judges who tossed the case for lack of standing reached the same result by finding that the House had no cause of action, in part because Congress had passed a law expressly providing a cause of action for the Senate but not the House. In her dissent from this ruling, Judge Judith Rogers provided a cogent explanation for why the law was not the obstacle that her colleagues contended. Although she did not say so explicitly, it is hard to imagine that the judges who did not find that standing was an obstacle would agree that the House’s case would fail on this lesser ground. It seems almost certain that the House will seek en banc review and that it will be granted. The prior en banc opinion made clear that the majority concluded subpoena enforcement was an essential tool of Congress if it was to do its job properly, which includes being able to obtain necessary information from the executive branch.

Indeed, that is what the Supreme Court recognized in its two subpoena enforcement cases this Term – Trump v. Mazars and Trump v. Vance – involving the President’s finances, although it remanded the House’s case because it had not provided adequate justifications for its requests. Those cases also point out a fundamental problem with the most recent panel ruling. No one disputed that the private persons who were subjected to the House subpoenas had the right to go to court to object to them, even though the real parties in interest were the President and his businesses But according to this week’s panel ruling, the House cannot take the initiative and sue the recipients of its subpoenas, but must wait to be sued in order to vindicate its position. If the D.C. Circuit panel is right and the House has no cause of action to enforce its subpoenas against the executive branch, the same barrier would apply to subpoenas issued to private parties, and they would no longer have any reason to sue first. In short, not only does the panel ruling create a bizarre asymmetry, but it threatens to undermine any ability of Congress to enforce its subpoenas against anyone, in or out of the government.

From the House’s perspective, it has no choice but to seek en banc review, which is likely to be granted, and this time, the full court will decide all the remaining issues, including the broad claim of privilege that the panel has not reached. Now comes the tricky part. If the President is re-elected, he will surely ask the Supreme Court to hear the case, and the fate of the standing ruling is by no means clear. In that situation, even though the subpoena will lapse at the end of this session of Congress, the House will surely renew it because there may be another round of impeachment, and there are many other subpoenas against other parts of the administration that have been ignored, but would be enforced if the House prevails.

But what would the House do if Trump loses the election, and the en banc court ruled in its favor? There would be serious mootness problems because the McGahn subpoena would lapse at the end of 2020, and a potential President Biden, as a long-term member of the Senate, might take a different position on whether Congress may sue the executive branch to enforce its subpoenas generally, while reserving all claims of privilege. The law is less than clear whether mootness in these circumstances would require that these opinions be vacated, nor is it clear whether the House might argue that these issues are likely to recur, as they have twice before. Therefore the courts, including the Supreme Court, should conclude that this case falls within the mootness exception for cases capable of repetition, but evading review. Although some of these options may vary depending on when the en banc court rules and when we know who the next President will be.

The bottom line for the House subpoena case is that, beyond the House seeking en banc review, the possibilities are many, and the outcomes far less than clear. Time to get a new crystal ball.

CDC’s Boundary-Pushing Eviction Freeze

From the earliest days of the pandemic, commentators have speculated about whether the Trump administration could issue nationwide public health orders like those implemented in many other countries. The most likely source of authority for federal executive action to mandate and support social distancing and face covering is Section 361(a) of the Public Health Services Act (PHSA), 42 U.S.C. § 264. The key text, which dates to the original PHSA of 1944, authorizes the HHS Secretary “to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” The statute refers to the Surgeon General, subject to the approval of the HHS Secretary, but following administrative reorganizations, it is now read to refer to the Secretary directly, who has in turn delegated authority to the CDC Director and FDA Administrator.

The groundbreaking CDC order imposing an eviction freeze through the end of 2020 is the agency’s first attempt to test the outer limits of its authority under Section 361 of the PHSA and the agency’s implementing regulation at 42 CFR § 70.2. The order temporarily halts evictions of covered tenants from residential properties. Covered tenants must make a sworn declaration that they meet income-based eligibility requirements and have exhausted available government assistance programs and that eviction would lead to homelessness living in “close quarters in a new congregate or shared living setting,” among other requirements. Interest groups argue that while the order could buy time for at-risk tenants by delaying evictions, it falls short of the rent-relief and other financial assistance needed to address the impending housing crisis and associated exacerbation of disease transmission.

The CDC eviction order will almost certainly be challenged in the courts and is vulnerable to being enjoined on the grounds that it exceeds the agency’s statutory authority, isn’t a proper exercise of federal power to regulate interstate commerce, inappropriately infringes on matters of state governance under the Tenth Amendment, and violates Fifth Amendment guarantees of due process and equal protection and its prohibition on uncompensated takings. The individual rights challenges seem unlikely to succeed under current precedents, including circuit court decisions upholding state and local pandemic response orders. The many carve-outs recognized in the eviction moratorium may make it somewhat more vulnerable to allegations that it is arbitrary and capricious or lacks a rational basis, but the bar is very low. The federalism challenges are probably also surmountable, given how broadly the courts have interpreted the interstate commerce power and how narrowly they’ve read Tenth Amendment protections for state sovereignty.

The statutory interpretation issue probably poses the greatest threat. Courts seeking to construe Section 361 or Section 70.2 more narrowly than their plain language suggests could rely on the nondelegation doctrine as a canon of construction. State and local public health orders—ranging from tobacco control laws to so-called “Big Gulp” bans, to stay-at-home orders adopted to mitigate the spread of coronavirus—have been subjected to similar analysis. Either the legislature didn’t intend for the statute to be read broadly enough to encompass the challenged order (so the argument goes) or, if it did, then the broad grant of authority runs afoul of separation of powers. Ilya Somin has laid the groundwork, arguing “If Congress can delegate the power to suppress virtually any activity of any kind, so long as the CDC claims that doing so is ‘reasonably necessary’ to reduce the spread of disease, it is hard to see how any meaningful limits on delegation would remain.” Court decisions adjudicating CDC’s statutory authority to issue the eviction moratorium—one way or another—could have far-reaching implications for the federal government’s role in responding to the coronavirus pandemic and for federal regulation more broadly.

The plain language of Section 361(a) appears to encompass a wide range of potential disease control measures and to give broad discretion to the determinations of agency officials. Landlords and other potential challengers are likely to argue that it must be construed more narrowly than the plain language suggests. Section 361(a) includes a list of specific examples of how agency officials’ authority might be used, including “provid[ing] for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings.” Section 70.2 includes a nearly identical list. The list of examples found in Section 361 and mirrored in CDC’s implementing regulations at 42 CFR § 70.2 is not exhaustive. The PHSA also authorizes “other measures, as in [the Secretary’s] judgment may be necessary.” Section 70.2 introduces the list of examples with the word “including.” Invoking the canon of ejusdem generis (the general power must be of the same nature as the listed powers), Josh Blackman has described these examples as “localized, and limited to prevent the spread of an infection in a single building or location.” But the FDA’s implementation of disease control measures pursuant to Section 361 has been applied to broadly defined categories of animals (e.g., all turtles under 4 inches in length) and products (e.g., unpasteurized milk products) on a nationwide basis. In fact, “361 products” is an explicit category within FDA’s regulatory scheme for human cell and tissue products. In the words of a federal district court for the Eastern District of Louisiana, “Congress has granted broad, flexible powers to federal health authorities who must use their judgment in attempting to protect the public against the spread of communicable disease.”

Like the state and local social distancing orders that have been challenged in the courts for months, an eviction freeze does not fall neatly within highly specific statutory provisions and regulations the way quarantine and isolation orders do. Instead, like most state and local officials, the federal administration is relying on older, broader grants of authority to “control communicable diseases.” While quarantine and isolation authorities—at the federal and state level—have been reformed to provide greater protections to individuals in light of modern constitutional doctrines, these broader authorities are subject to fewer statutory constraints. Yet the courts have, for the most part, been fairly forgiving of executive pandemic response orders and reluctant to enjoin them based on ejusdem generis or other limiting constructions.

There are, however, meaningful constraints imposed by Section 361 and Section 70.2. Unlike state and local leaders, federal officials are limited to the exercise of powers enumerated in the Constitution. Public health—particularly community mitigation efforts that rely on controlled movement and business restrictions to slow the spread of infection—is primarily governed at the state level. The typical federal role—which has largely been abdicated in this crisis—is to finance, support, guide, and inform state and local efforts. Section 361’s emphasis on preventing the inter-state spread of infection reflects the gap-filling role the federal administration is intended to play. Section 70.2 of the CDC’s regulations implementing Section 361 arguably narrows the federal role further, by making CDC action contingent upon a finding that state and local efforts are “insufficient to prevent the spread of communicable diseases” across state and territorial borders. These requirements could open the door to advising the CDC order be revised to strengthen the nexus to inter-state spread. The declarations covered tenants must make could require a statement that eviction would result in an inter-state move, for example.

Although some commentators have called for nation-wide, federally-imposed restrictions on personal movement and businesses to increase social distance and mandate face covering, there are reasons to be wary of expanding the federal role in pandemic restrictions. For one, local conditions vary from place to place and time to time throughout the course of a pandemic. Nationally uniform rules may not always be appropriate or desirable. For another, enforcement options are more limited at the federal level. Section 368(a) of the PHSA, 42 U.S.C. § 271(a), makes any violation of a regulation issued under Section 361 a crime, 42 CFR § 70.18 provides violations are subject to steep fines and jail time. CDC’s eviction freeze order relies on these provisions to threaten harsh criminal penalties. Some state and local governments have used licensing-based penalties, such as smaller fines and suspension of business licenses, to enforce restrictions without relying heavily on criminalization and community policing. Federal agencies have little involvement in licensing and thus fewer levers available to incentivize compliance without resorting to criminalization. Federal financial support is crucial, but federal restrictions should be adopted and reviewed with caution.

If the CDC’s broad interpretation of Section 361(a) is upheld in the face of inevitable court challenges, the resulting precedents could embolden the Trump administration—or a future Biden administration—to use 361 to implement other national orders, such as a mask mandate or even a stay-at-home order. If the CDC eviction order is enjoined, however, precedents could deter further use of Section 361 to implement federal social distancing and face covering mandates, potentially even in situations where inadequate state and local efforts clearly put people in other US jurisdictions at risk. More significantly, but less certainly, challenges to the CDC eviction order could generate precedents that support the nondelegation doctrine as a limit on agency authority—or at least as a cannon of statutory construction. On balance, if the CDC eviction order is enjoined, it is likely to be on the grounds that the wrong part of the government adopted it, or perhaps adopted it through the wrong process, rather than an argument that no government may freeze evictions to mitigate disease transmission during a public health emergency. Nonetheless, the implications for federal regulation—in the pandemic and beyond—could be sweeping.

Lezmond Mitchell’s Execution Would Be Another Broken Promise to Tribal Nations

There are few things more American than baseball, apple pie, and the federal government breaking its promises to Native Americans.

The United States’ continued failure to keep its promises to Native Americans seemed to be ending when last month, in a move that stunned many observers, the Supreme Court sent a clear message that this centuries-long history of lies, deception, and “might making right” must come to an end. But now, as part of its broader campaign to rev up the federal government’s machinery of death, the Trump Administration is seeking to execute Lezmond Mitchell, a member of the Navajo Nation, in a clear breach of the government’s promises to respect tribal sovereignty.

In the McGirt decision, Justice Neil Gorsuch noted that, “it’s no matter how many other promises to a tribe the federal government has already broken,” going forward it must honor the promises it has made to respect a tribe’s sovereignty.

Less than a month later, however, the U.S. Department of Justice scheduled the execution of Lezmond Mitchell, a member of the Navajo Nation, for August 26. As Judge Morgan Christen of the Ninth Circuit remarked earlier this year, Mr. Mitchell’s impending execution “is a betrayal of a promise made to the Navajo Nation, and it demonstrates a deep disrespect for tribal sovereignty.”

After a nearly twenty-year moratorium, the federal government is in the midst of an historically unprecedented and seemingly arbitrary rush to put people to death, with three executions in the past month, and four more scheduled over the next two months. If the remaining executions move forward, the Trump Administration will have tripled the number of federal executions in modern history.

Meanwhile, Mr. Mitchell, who is schedule to be the next person executed, is the only Native American currently on federal death row. The crimes for which he was convicted, by a jury with only one other member of the Navajo Nation, were committed on Navajo territory, against members of the Navajo Nation. This would be the first federal execution for such a crime in modern times. Although a federal statute, the Major Crimes Act (MCA) generally gives federal courts jurisdiction to try members of tribes for certain crimes committed on tribal land, a 1994 amendment eliminated the death penalty for prosecutions under the MCA, “unless the governing body of the tribe has elected” otherwise. Under this so-called “tribal option,” the Navajo Nation declined to opt-in to the federal death penalty.

The Attorney General for the Navajo Nation at the time of Mr. Mitchell’s prosecution explained that the Nation objected to a capital prosecution of Mr. Mitchell specifically, because, “Navajo cultural and religious values . . . do not support the concept of capital punishment. Navajo holds life sacred. Our culture and religion teach us to value life and instruct against the taking of human life for vengeance.” This sentiment was echoed in a letter the president of the Navajo Nation, Jonathan Nez, recently sent to President Trump requesting a commutation of Mr. Mitchell’s sentence to life imprisonment.

In an attempt to honor the Navajo Nation’s opposition to the death penalty, the local U.S. Attorney recommended against seeking the death penalty at the time of Mr. Mitchell’s prosecution. Rather than upholding the US commitment to give tribes a say in capital prosecutions, the federal government, through the U.S. Department of Justice, chose to ignore the objections of the Navajo Nation and the victims’ families and exploit a loophole to pursue and obtain a death sentence. As Judge Christen observed in her concurrence to a three-judge panel’s rejection of Mr. Mitchell’s claims of jury bias in April, “Mitchell did not receive the death penalty for his murder convictions. . . . Mitchell faces the prospect of being the first person to be executed by the federal government for an intra-Indian crime, committed in Indian country, by virtue of a conviction for carjacking.”

The federal government betrayed a promise when it sought the death penalty against Lezmond Mitchell nearly two decades ago. Today, it has the opportunity to make amends and keep that promise by halting his execution.

Justice Gorsuch observed in the McGirt decision last month “Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking.”

Too often in Washington, DC, political leaders pledge support for tribal sovereignty and tribal self-rule but then are unwilling to accept the decisions tribe’s make. This is a textbook example. It costs little to halt the execution of Lezmond Mitchell, a result that would both respect the sovereign dignity of a tribal nation and do the right thing for Mr. Mitchell.

Law Enforcement Officials, Qualified Immunity and the Absolute Immunity of Anonymity

Photo credit: @spencerwithans

 

Last month, a retired therapist (with no legal background) with whom I’m friends said that she was writing to Congress to ask that they “eliminate the qualified immunity defense.” Everyone has been talking about qualified immunity, including Congress.  On June 25, 2020 the House passed H.R. 7120, the “George Floyd Justice in Policing Act.” The Act is intended “to hold law enforcement accountable for misconduct in court, improve transparency through data collection, and reform police training and policies.”  Qualified immunity seems to encapsulate the problem with police misconduct – police can violate the constitution, but they do not have to pay for their misconduct.  So, if one is concerned about police misconduct, eliminating qualified immunity seems an obvious way to increase police accountability.

The Supreme Court first outlined qualified immunity in Harlow v. Fitzgerald.  There, the Court held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  The Court reasoned that “[i]f the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” As the Court later explained, a right is clearly established when it is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”  While this may sound like a relatively straightforward test, it is anything but.

There is so much wrong with the qualified immunity defense.  Circuit courts are split on whether district courts and other circuits can make “clearly established law.”  The Supreme Court has offered mixed guidance on the effect circuit splits have on the doctrine.  And these are just a few of the substantive problems.  Qualified immunity is a proceduralist’s nightmare.  Courts regularly require plaintiffs to bear the burden of proving the law was clearly established.  This practice contradicts the basic rule that defendants bear the burden of proof on affirmative defenses and ignores the fact that evidentiary burdens are irrelevant to questions of law.  Defendants can make an interlocutory appeal if they are denied qualified immunity.  And the Court has advised lower courts to decide qualified immunity on summary judgment before discovery, which, in many respects seems to ignore the purpose of summary judgment --- to determine whether there is sufficient evidence to necessitate a trial.  Finally, as Sina Kian, a constitutional law scholar recently noted, qualified immunity “has no basis in the text of section 1983” and “there is scant support in history or common law for so robust an immunity.”

All of this suggests there are very good reasons for eliminating the qualified immunity defense. However, the appearance of federal law enforcement officials in Portland and President Trump’s promise to deploy “more federal law enforcement” officials suggest we may have a much bigger problem.  Traditionally, police accountability and reform has focused on local police officials.  It is becoming increasingly clear we should be equally, if not more, concerned about federal law enforcement officials and whether they too will be held accountable for constitutional violations.  There is no question that the federal officials can violate the constitution, they can be sued for these deprivations through Bivens actions, and that they can claim qualified immunity.

Should it become law, the George Floyd Justice in Policing Act would “eliminate qualified immunity for both local and federal law enforcement officers.”  When the Act was initially introduced in the House, section 102 only applied to local law enforcement officials and state correctional officers.  However, the bill was later amended to eliminate qualified immunity for a  “[f]ederal investigative or law enforcement officer.”  This is an important development.  However, eliminating qualified immunity seems like a small gesture when law enforcement officials – both local and federal – are protected by anonymity.

 

Photo credit: Doug Brown, ACLU of Oregon

 

Clashes between protestors and law enforcement officials following the killing of George Floyd have shown how difficult it can be to distinguish law enforcement officials from one another in the protest context.  As a practical matter, because so many officials are present during protests, it is difficult to know who among many fired the rubber bullet, released the tear gas, or swung the baton that injured the putative plaintiff.  And even if one saw the individual, riot gear and SWAT team uniforms often make it impossible to identify the officer. This problem is only compounded by missing or covered badges numbers.  As Attorney General Bar stated, “in the federal system, we don't wear badges with our name -- I mean the agents don't wear badges and their names and stuff like that, which many civilian police ... agencies do.” The U.S. Customs and Border Protection Acting Commissioner explained that this was an intentional decision to conceal the identities of agents because protestors, who he dubs as “violent criminals[,] use this information to target them & their families, putting both at risk.”  Similarly, there are reports from around the country that local officials policing protests covered their names and/or badge numbers.

Portland, Oregon exemplifies the problem of anonymous law enforcement officials.  Earlier this month reports emerged of masked agents wearing camouflage patterns usually donned by Army officers “patrolling areas of Portland—and conducting arrests by scooping suspects up into vans.”  Initially, people had no idea who these law enforcement officials were.  President Trump has since taken credit for sending agents from the Department of Homeland Security to Portland to protect federal property.  More troubling, Trump is considering sending federal agents to other cities “run by very liberal Democrats.”

Not only are unidentified federal officials policing American streets, but there are allegations that their tactics are depriving civilians of their constitutional rights.  Last month, Oregon’s attorney general filed a suit against several federal agencies and “unnamed individual officers” alleging federal officials’ tactics deprived detainees of due process.  The Western States Center (WSC), a Portland-based civil rights organization, filed a federal lawsuit against the Department of Homeland Security (DHS), the US Marshals Service (USMS), Customs and Border Protection (CBP), and the Federal Protective Service (FPS) alleging the “the administration’s actions are unconstitutional” and have “deprived Portlanders the right to protest peacefully.”  Additionally, last week, “two groups and five individual plaintiffs” filed a complaint against various federal agencies alleging “federal officials deprived protesters of their constitutional rights to free speech, free assembly and due process, and their freedom from unreasonable seizure.”

The purpose of the George Floyd Justice in Policing Act is to hold law enforcement officials accountable.  One implicit goal of Section 102 is to increase the likelihood that law enforcement officials --- regardless of whether they are local or federal --- will be accountable to the persons they injure.  To this end, legislators are right to eliminate the qualified immunity defense.   But doing so is largely futile if law enforcement officials can hide behind masks and shields. Anonymity offers officials a new, more powerful form of immunity.  You can’t sue someone when you don’t know who they are.  And although federal police are withdrawing from Oregon, we must ensure that anonymity does not replace qualified immunity as a shield to liability.