Cole Campbell, CLS ’21

A United States District Court recently found that particular regulations targeting littering—and ostensibly unauthorized immigration—substantially burdens the free exercise of some religious practices.[1] Because these regulations are not the least restrictive means of fulfilling a compelling government interest, the court declared them invalid under the Religious Freedom Restoration Act.

Understanding how federal littering and permitting regulations could be invalidated as unduly burdensome on religious practices requires a bit of statutory background. The Religious Freedom Restoration Act, or “RFRA,” was passed by Congress in 1993 to protect the free exercise of religion. At its core, RFRA exempts religious practitioners from laws that substantially burden the exercise of their religious beliefs. But the government can override the exemption if they show that the application of that law to that practitioner is the “least restrict means” of furthering a “compelling government interest.”[2]

Lawyers and law students will recognize that language as akin to the “strict scrutiny” test employed by courts to adjudge government interference in sensitive areas like free speech and religious liberty. Here, Congress essentially imposed strict scrutiny on all federal action that touches on religious practice. Congress is understood to have overruled or superseded a past Supreme Court holding, Employment Division v. Smith (1990), which held that the Free Exercise Clause of the First Amendment “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.”[3]

Enter the defendants in United States v. Hoffman (D. Ariz. 2020). The defendants, including named defendant Natalie Hoffman, are volunteers with “No More Deaths,” an organization associated with the Unitarian Universalist Church of Tucson. No More Deaths was founded to combat the deaths of migrants who attempted to enter the United States across dangerous terrain. The group would leave jugs of water in highly trafficked desert areas to help prevent dehydration.

And the defendants did just that in the Cabeza Prieta National Wildlife Refuge in southern Arizona. They entered the park without the requisite permitting, travelled down a restricted-access road to their destination, and dropped off food and water for the anticipated migrants. The defendants were subsequently charged with violating a series of regulations governing the CPNWR, including one that prohibited leaving water bottles, food, blankets, and clothing on the Refuge.[4]

The defendants ultimately raised a defense under RFRA, claiming that the park regs could not be applied to their activities, which they characterized as religious in nature. A typical RFRA analysis will consider first whether the Defendants are being prosecuted for a “sincere exercise of religion,” and then the court will move on assess whether the burden is substantial, whether the government interest is compelling, and whether the law or regulation is the least restrictive means of fulfilling that compelling interest. The defendants succeeded on all counts, but the court’s “sincere exercise of religion” analysis is particularly interesting.

The bulk of the court’s analysis revolves around determining whether the defendants’ practice can be characterized as religious, and whether it is sincere.[5] This is perhaps understandable: the court does not want every defendant cloaking their illegal actions in the garb of religious practice. But it is also a delicate venture. Throughout the opinion, the court is self-conscious of the distastefulness of a court evaluating whether someone’s beliefs are sufficiently sincere—especially in the religious context.[6] And because “No More Deaths” is not overtly religious, but is rather associated with the Unitarian Universalist Church, the court had a tough task on its hands.

The court ultimately engaged in a fine-grained analysis of the defendants’ religious beliefs. With certain defendants, the religious nature of the acts was apparent; Reverend Fife tied his actions to Christ’s words at the Last Judgment. But another defendant gestured towards her belief that their humanitarian activity was “sacred,” and characterized her moments of silence in the desert as a “sort of prayer.”[7] Some of the analyzed testimony would probably not strike one as traditionally “religious,” but the court cited precedent from the Supreme Court and a pair of sister circuits that suggests the protected belief need not fall within an established religion.

The Ninth Circuit will have its say on whether the defendants’ activities are properly protected under RFRA: the prosecutors have reportedly appealed the District Court’s judgment.

 

[1] United States v. Hoffman, 2020 U.S. Dist. LEXIS 19060 (D. Ariz. 2020).

[2] 42 U.S.C. 2000bb-1(b).

[3] Employment Div. v. Smith, 494 U.S. 872, 879 (1990).

[4] 50 C.F.R. 27.93.

[5] Hoffman, 2020 U.S. Dist. LEXIS 19060 at *10-24.

[6] Id. at *10 (“The Supreme Court has long recognized that a determination of what is a religious belief or practice is a most delicate question” (internal citations and quotation marks omitted)).

[7] Id. at *14-15.

Leo Weissburg, CLS ’21

You may not have heard of Clearview AI. However — if you are one of the hundreds of millions of Americans with a Facebook, Instagram, or Linkedin account — Clearview has almost certainly heard of you. Since 2016, Clearview has quietly “scraped” billions of publicly available photos from millions of websites.^[i] Clearview has used these photos to create a powerful facial recognition app: users simply upload a photo of a person, and Clearview’s app provides links to other publicly available photos of the person — such as their Facebook profile.^[ii] Clearview’s database is orders of magnitude larger than typical law enforcement facial recognition databases — which draw mostly from drivers’ license, passport, and jail booking photos.^[iii] Clearview counts Walmart, the NBA, ICE, and hundreds of local police departments among its clients.^[iv] Since January 2020, when New York Times reporting first brought Clearview’s activities into the public eye, Clearview has been subject to numerous legal threats.

Congress has not yet enacted a general federal data privacy law.^[v] However, some indications suggest that one may not be far off. California has passed the California Citizens’ Privacy Act (CCPA), a broad data privacy statute modeled on the European Union’s recently enacted General Data Protection Regulation (GDPR).^[vi] Many state legislatures are considering similar proposals.^[vii] Concerned that technology companies may face inconsistent (and strict) state privacy regimes, the Chamber of Commerce supports federal legislation in principle.^[viii] Two proposed bills await consideration in the Senate, one supported by the Republican caucus and another supported by the Democrats.^[ix] Concerns about Clearview’s practices may help spur action — Senators Ed Markey and Ron Wyden have sent letters to the company questioning their practices and seeking additional information.[x]

Until Congress enacts federal privacy legislation, affected parties must rely on state law remedies — or pursue theories unrelated to data privacy. Today, the CCPA is the nation’s broadest data privacy law.[xi] In relevant part, the CCPA requires that companies notify individuals when collecting their personal information.^[xii] Companies that collect personal information must also delete all collected information upon request, and allow individuals to opt-out of collection.^[xiii] To satisfy its CCPA obligations, Clearview publishes a “Clearview California Privacy Notice” on its website.^[xiv] While the notice does explain Clearview’s deletion and opt-out procedures, it isn’t clear whether such a statement satisfies the CCPA’s mandate that disclosure be made “at or before the point of collection.”

Putative class actions have been filed in California under the CCPA^[xv] and in Illinois — under that state’s “Biometric Information Privacy Act,” a 2008 law that prohibits companies from collecting individuals’ biometric data without consent.^[xvi] Vermont’s Attorney General has also sued, alleging that Clearview’s practices violate Vermont consumer protection law.^[xvii] The online services from which Clearview obtained photos have also threatened litigation. Facebook, Google, Twitter, Linkedin, Venmo, and Youtube have issued cease-and-desist letters to Clearview, each alleging that Clearview has violated the services’ terms of use.^[xviii] Clearview responds that it has a First Amendment right to make use of publicly available information.^[xix] A recent Ninth Circuit case, HiQ Labs, Inc. v. Linkedin Corp., 938 F.3d 985 (9th. Cir. 2019), involved (but did not resolve) a similar argument.^[xx] There, Linkedin argued that, by “scraping” publicly available information from Linkedin, HiQ had accessed data without authorization — thus violating the Computer Fraud and Abuse Act (CFAA).^[xxi] The Ninth Circuit rejected this restrictive reading of the CFAA—but did not address HiQ’s First Amendment argument.^[xxii]

Despite these legal challenges and mounting pressure from groups like the ACLU, Clearview’s founder has vowed that his company will continue to operate.^[xxiii] It remains to be seen whether the growth of Clearview and other companies like it will spur Congress to act on a federal privacy bill.

 

^[i] “Scraping” refers to automated downloading of publically-available web content, typically images. Louise Matsakis, Scraping the Web Is a Powerful Tool. Clearview AI Abused It, Wired, (Jan 25, 2020), https://www.wired.com/story/clearview-ai-scraping-web/.

^[ii] Kashmir Hill, The Secretive Company That Might End Privacy as We Know It, N.Y. Times, (Jan. 18, 2020), https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html.

^[iii] Kaixin Fan, Clearview AI Responds to Cease-and-Desist Letters by Claiming First Amendment Right to Publicly Available Data, JOLT Digest, Harv. J. L. & Tech. (Feb. 25, 2020), http://jolt.law.harvard.edu/digest/clearview-ai-responds-to-cease-and-desist-letters-by-claiming-first-amendment-right-to-publicly-available-data.

^[iv] Ryan Mac et. al., Clearview’s Facial Recognition App Has Been Used By The Justice Department, ICE, Macy’s, Walmart, And The NBA, Buzzfeed News (Feb. 27, 2020), https://www.buzzfeednews.com/article/ryanmac/clearview-ai-fbi-ice-global-law-enforcement.

^[v] David Saunders & Allison Glover, INSIGHT: A Federal Privacy Bill May Be Closer Than Once Thought, Bloomberg Law, (Feb. 14, 2020), https://news.bloomberglaw.com/privacy-and-data-security/insight-a-federal-privacy-bill-may-be-closer-than-once-thought.

^[vi] Anjali C. Das & Stefanie L. Ferrari, California Consumer Privacy Act Effective January 1, Nat’l L. Rev., (Dec. 3, 2019), https://www.natlawreview.com/article/california-consumer-privacy-act-effective-january-1-update.

^[vii] Rachel Marmor et. al., “Copycat CCPA” Bills Introduced in States Across Country, DWT Privacy & Security Law Blog, (Feb. 8, 2020), https://www.dwt.com/blogs/privacy–security-law-blog/2019/02/copycat-ccpa-bills-introduced-in-states-across-cou/.

^[viii] David Saunders & Allison Glover, INSIGHT: A Federal Privacy Bill May Be Closer Than Once Thought, Bloomberg Law, (Feb. 14, 2020), https://news.bloomberglaw.com/privacy-and-data-security/insight-a-federal-privacy-bill-may-be-closer-than-once-thought.

^[ix] Id.

Wendy Zhang, Comprehensive Federal Privacy Law Still Pending, Nat’l. Law Review, (Jan. 22, 2020), https://www.natlawreview.com/article/comprehensive-federal-privacy-law-still-pending.

[x] Ryan Mac et. Al., Senators Are Probing Clearview AI On The Use Of Facial Recognition By Gulf States And International Markets, Buzzfeed News, (Mar. 4, 2020), https://www.buzzfeednews.com/article/ryanmac/senators-markey-wyden-clearview-ai-facial-recognition.

[xi] Anjali C. Das & Stefanie L. Ferrari, California Consumer Privacy Act Effective January 1, Nat’l L. Rev., (Dec. 3, 2019), https://www.natlawreview.com/article/california-consumer-privacy-act-effective-january-1-update.

^[xii] Id.

^[xiii] Id.

^[xiv] California Privacy Notice, Clearview AI, (Last visited Mar. 31, 2020), https://staticfiles.clearview.ai/clearview_california_notice.html.

^[xv] The CCPA provides no private right of action, except for claims arising out of data breaches or hacks. The Burke complaint frames the alleged CCPA violations as also violating the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, which prohibits businesses from engaging in practices that violate other California laws—such as the CCPA. Complaint, Burke v. Clearview AI, Inc., No. 3:20-cv-00370, 4 (S.D. Cal. Feb. 27, 2020). However, the CCPA appears to explicitly disclaim this kind of bootstrapping. Cal. Civ. Code § 1798.150(c) (“Nothing in this title shall be interpreted to serve as the basis for a private right of action under any other law.”).

^[xvi] Daniel R. Stoller, Sarah Merken, Clearview AI Faces California, Illinois Lawsuit After Breach, Bloomberg Law, (Feb 28, 2020), https://news.bloomberglaw.com/privacy-and-data-security/clearview-ai-faces-california-illinois-lawsuit-after-breach.

^[xvii] Complaint, State of Vermont v. Clearview AI, Inc., Vt, Super. Ct. (Filed Mar. 10, 2020);

Press Release, Office of the Vermont Attorney General, Attorney General Donovan Sues Clearview AI for Violations of Consumer Protection Act and Data Broker Law (Mar. 10, 2020), https://ago.vermont.gov/blog/2020/03/10/attorney-general-donovan-sues-clearview-ai-for-violations-of-consumer-protection-act-and-data-broker-law/.

^[xviii] Kashmir Hill, Twitter Tells Facial Recognition Trailblazer to Stop Using Site’s Photos, N.Y. Times, (Jan 22, 2020) https://www.nytimes.com/2020/01/22/technology/clearview-ai-twitter-letter.html.

^[xix] Kaixin Fan, Clearview AI Responds to Cease-and-Desist Letters by Claiming First Amendment Right to Publicly Available Data, JOLT Digest, Harv. J. L. & Tech. (Feb. 25, 2020), http://jolt.law.harvard.edu/digest/clearview-ai-responds-to-cease-and-desist-letters-by-claiming-first-amendment-right-to-publicly-available-data.

^[xx] HiQ Labs, Inc. v. Linkedin Corp., 938 F.3d 985 (9th. Cir. 2019).

^[xxi] Kaixin Fan, Clearview AI Responds to Cease-and-Desist Letters by Claiming First Amendment Right to Publicly Available Data, JOLT Digest, Harv. J. L. & Tech. (Feb. 25, 2020), http://jolt.law.harvard.edu/digest/clearview-ai-responds-to-cease-and-desist-letters-by-claiming-first-amendment-right-to-publicly-available-data.

^[xxii] Id.

^[xxiii] Caroline Haskins et. al., The ACLU Slammed A Facial Recognition Company That Scrapes Photos From Instagram And Facebook, Buzzfeed News, (Feb. 10, 2020) https://www.buzzfeednews.com/article/carolinehaskins1/clearview-ai-facial-recognition-accurate-aclu-absurd.

Bastian Shah, CLS ’21

As governments ban gatherings to stop the spread of Covid-19, workplaces and universities are shifting to teleconferencing platforms to replace in-person meetings and classes. Before the pandemic, Zoom had been a go-to teleconferencing platform for companies and universities.[1] Now, many schools and businesses, including Columbia University, are meeting exclusively over Zoom. Data privacy watchdogs and digital rights groups have raised questions about Zoom’s use and handling of user data.[2] In the rush to implement social distancing while maintaining business and learning, one may question whether decisionmakers adequately considered security and privacy when choosing a teleconferencing platforms. This post summarizes what we know and don’t know about Zoom’s 1) collection, 2) sale, and 3) disclosure to law enforcement of user data.

Zoom’s Data Collection

The Electronic Frontier Foundation (EFF), an impact litigation organization advocating online free speech, has raised concerns about how much data Zoom collects from users.[3] Like most paid online services, Zoom collects payment information, names, physical locations, and device information from its users.[4] In addition, Zoom allows administrators, like employers and school officials, to record meeting sessions and track users’ computer usage while Zoom is open.[5] It is these employer surveillance measures to which EFF primarily objects.[6] As a result of social distancing policies, employers are surveilling workers in their own homes, raising additional privacy concerns.

Sale of User Data

Zoom’s “Privacy Policy” is ambivalent about whether it sells user data. It does not “allow marketing companies, advertisers, or anyone else to access Personal Data in exchange for payment.”[7] Zoom, in its “humble opinion,” does not “think most of [its] users would see [it] as selling their information.”[8] However, Zoom does share data with third parties, like Google Ads, that advertise on Zoom,[9] and those third parties may use that data for their general advertising business. Despite its “humble opinion,” Zoom’s distribution of user data to third parties for advertising purposes “may be considered a ‘sale’ … under the California Consumer Privacy Act.”[10] Zoom users in California can, therefore, opt-out of the sale of their data to third parties. Students and employees from other states required to use Zoom must either acquiesce to the sale of their data to third parties or discontinue schooling or employment.

Sharing Data with Law Enforcement.

Access Now, a watchdog group that advocates for digital privacy and civil rights, has sent an open letter to Zoom.[11] The letter requests Zoom issue reports on what “safeguards against government abuses” it has in place and “the number of government requests for user data” it receives.[12] Many large tech companies, including Microsoft, which operates Skype; Google, which operates Hangouts; and Facebook, which operates WhatsApp, publicly report data on government requests for user information and policies for data breaches.[13] Zoom does not currently issue such a report. Zoom discloses no information on how many law enforcement demands it receives, nor whether it notifies customers whose information has been requested by law enforcement. Zoom’s privacy policy states that the company will respond “to a legally binding demand for information” but gives no detail on how, or if, it protects against government overreach.[14] Fear of government overreach is compounded by the existence of “Zoom for Government,” a Zoom service for government agencies accredited and used by the Department of Homeland Security.[15] Vulnerable populations, such as undocumented immigrants, may feel less safe working or learning from home with the knowledge that Zoom may, without notice, disclose their location and demographic data to law enforcement.

Teleconferencing platforms like Zoom are allowing important economic and educational activities to continue despite the Covid-19 pandemic. However, those advocating for legal protections for digital privacy have questioned whether Zoom is unambiguously positive for students and employees. Without nationwide legislation addressing online privacy and security rights, states and watchdog groups are left on their own in addressing the digital side of the current crisis.

 

[1] See Laurie Clarke, Zoom Urged to Be Transparent About Government Data Requests, New Statesman (Mar. 19, 2020), https://tech.newstatesman.com/security/zoom-government-data-requests (“Even before the coronavirus outbreak, Zoom was reportedly used by over 60 per cent of Fortune 500 companies and over 96 per cent of the top 200 universities in the US.”)

[2] See Isedua Oribhador, et al., Open Letter: Zoom’s Policies Affecting Digital Rights, Access Now (Mar. 18, 2020), https://www.accessnow.org/cms/assets/uploads/2020/03/Letter-to-Zoom-.pdf; Lindsay Oliver, What You Should Know About Online Tools During the Covid-19 Crisis, Electronic Frontier Foundation (Mar. 19, 2020), https://www.eff.org/deeplinks/2020/03/what-you-should-know-about-online-tools-during-covid-19-crisis;

[3] See Oliver, supra note 2.

[4] Zoom Privacy Policy, Zoom (Mar. 18, 2020), https://zoom.us/privacy.

[5] Attendee Attention Tracking, Zoom (last visited Mar. 29, 2020), https://support.zoom.us/hc/en-us/articles/115000538083-Attendee-attention-tracking (detailing how to ensure employees keep the Zoom app “in focus” on their screens during meetings).

[6] See Oliver, supra note 2.

[7] Zoom Privacy Policy, supra note 4.

[8] See id.

[9] See id.

[10] Id. (California Consumer Privacy Act information only appears as a pop-up when viewing the website on a computer located in California or using a private browser session) (on file with Colum. J.L.. & Soc. Probs.). See also, Cal. Civ. Code § 1798.140(t)(1) (Deering 2020) (“‘[S]ale’ … means … making available … a consumer’s personal information by the business to another business or a third party for monetary or other valuable consideration.”).

[11] See Oribhador, supra note 2.

[12] Id.

[13] See Transparency Reporting Index, Access Now (last visited Mar. 22, 2020), https://www.accessnow.org/transparency-reporting-index/.

[14] See Zoom Privacy Policy, supra note 4.

[15] See Priscilla Barolo, Zoom Achieves FedRAMP Moderate Authorization, Zoom (May 7, 2019), https://blog.zoom.us/wordpress/2019/05/07/zoom-achieves-fedramp-moderate-authorization/ (Announcing Zoom for Government’s sponsorship by the United States Department of Homeland Security); Who’s Behind Ice: The Tech and Data Companies Fueling Deportations, National Immigration Project at 6, 24 (last visited Mar. 29, 2020), https://www.nationalimmigrationproject.org/PDFs/community/2018_23Oct_whos-behind-ice.pdf (noting that “Zoom for Government” is used by the Department of Homeland Security, possibly for Customs and Border Protection).

Katie Friel, CLS ’21

On November 8, 2018, Florida passed Amendment 4 to its constitution, restoring the voting rights of the state’s ex-felons who have completed all terms of their sentences, including parole or probation.[1] According to reports, Amendment 4 would make an estimated 1.4 million Floridians eligible to vote.[2] In a matter of months after Amendment 4’s passage, in June 2019, Florida Governor Ron DeSantis signed Senate Bill 7066, which implemented the Amendment and interpreted its language of “completion of all terms of sentence” to include a requirement that a felon pay all fines, fees, and restitution associated with his sentence before any rights are restored.[3] The Supreme Court of Florida subsequently confirmed this interpretation of Amendment 4, ruling that the text of the Amendment required completion of all payments associated with an individual’s sentence as a precondition to re-enfranchisement.[4]

Almost immediately after the enactment of SB 7066, seventeen ex-felons in Florida filed suits in federal court, challenging the constitutionality of SB 7066’s “fines and fees” requirement.[5]  As the highest court in the state, the Florida Supreme Court’s prior interpretation of Amendment 4 is determinative;[6] therefore, the only question for the federal courts is whether SB 7066 and Amendment 4, so interpreted, violates the United States Constitution. The fines and fees requirement, plaintiffs argued in a consolidated action in the Northern District of Florida, is a violation of the Equal Protection Clause of the 14^th Amendment because it punishes indigent citizens more harshly—by denying them the right to vote—than those who are able to pay their fines and fees.[7] Were it not for this requirement and their genuine inability to pay, plaintiffs argued, they would be eligible to vote under Amendment 4.[8] Following an evidentiary hearing, the district court granted plaintiffs’ motion for a preliminary injunction on October 18, 2019, enjoining the defendants from denying them access to the ballot box based solely on their inability to pay their fines and fees.[9]

Defendants subsequently appealed the district court’s injunctive relief, and, on February 19, 2020, the 11^th Circuit issued its decision on the matter.[10] The Court of Appeals found that the fines and fees requirement disproportionally punishes those who are unable to pay, resulting in the loss of a fundamental right—that to vote.[11] Typically, felon disenfranchisement and re-enfranchisement schemes are subject to rational basis review[12]; however, there are instances that may call for stricter scrutiny. For example, though wealth is not typically a suspect class, as the circuit court noted, Supreme Court precedent suggests that wealth classifications may be subject to heightened scrutiny when “they are used to restrict access to the franchise and in the administration of criminal justice,” both of which apply in Jones[13]; further, heightened scrutiny traditionally applies when fundamental rights are implicated—fundamental rights such as the right to vote.[14] As such, the court found, an analysis of the fines and fees requirement warrants heightened scrutiny.[15] Applying this standard, the 11^th Circuit found that the requirement likely violates the Equal Protection Clause as applied to the seventeen plaintiffs in the case.[16] Therefore, having also concluded that the plaintiffs would suffer irreparable injury in the absence of injunctive relief[17], that potential injury outweighs any harm to the defendants[18], and relief would be in the public interest[19], the court affirmed the district court’s preliminary injunction.[20]

 

[1] Jones v. Governor of Fla., 950 F.3d 795, 800 (11th Cir. 2020).

[2] Id.

[3] Id.

[4] Id. at 803.

[5] Id. at 804.

[6] Id.

[7] Id. at 805.

[8] Id. at 804.

[9] Id. at 805.

[10] Id. at 800.

[11] Id. at 800.

[12] Id. at 823.

[13] Id. at 808.

[14] Id.

[15]  Id. (“Once a state provides an avenue to ending the punishment of disenfranchisement, it must do so consonant with the principles of equal protection, and it may not erect a wealth barrier absent a justification sufficient to overcome heightened scrutiny.”).

[16] Id. at 827.

[17] Id. at 828.

[18] Id. at 829-30.

[19] Id. at 830-31.

[20] Id. at 832-33.

Jaime Brosnan, CLS ’21

Throughout the coronavirus pandemic, Americans have heard the President issue federal stay-at-home guidelines, including a nationwide lockdown until April 30^th. Americans have also heard the President discuss potentially lessening those restrictions and reopening businesses after this date; however, it is not his call to make. [1]  Although it may appear from the Coronavirus Task Force press conferences that the President ordered the current lockdowns, it is the state governments who possess the authority to impose these types of restrictions, although they often take their cues from the federal government. States have the police power to regulate almost everything in its state, including the ability to issue statewide lockdowns, force closures of institutions and businesses, limit public gatherings and prevent travel.[2] Protecting public health and safety is one of the states’ most compelling use of state power. [3] Under the Constitution, the federal government has a limited set of enumerated powers, leaving the state government with the primary authority to fight the pandemic.[4] States have many key advantages over the federal government in enacting these types of restrictions during an emergency, including more knowledge on its own resources and hazards, ability to shape policies on local issues and more flexibility to alter their emergency response plans.[5] That’s not to say the federal government does not possess any power during this crisis. The federal government has the power to provide medical supplies, transfer money to state governments, bar individuals with coronavirus from entering the United States, and fund research for a vaccine. It cannot, however, impose statewide quarantines.[6]

While some experts suggest a national lockdown would dramatically help slow the spread of the coronavirus[7], the United States federalism system likely prevents the federal government from officially enacting one and, instead, leaves that power in the hands of the individual states.[8] Although national emergencies, especially wartime, usually give rise to broader presidential power, a national shelter-in-place order is unprecedented and could likely be challenged in court.[9] While the President’s constitutional authority during emergency crises is not entirely defined[10], without an executive order to the contrary, the states have the lockdown power in their hands. A successful nationwide lockdown would require joint cooperation from all states, but states have each enacted varying levels of restrictive measures. Thirteen states, including New York and California, enacted the most restrictive measures in closing all nonessential businesses and prohibiting all gatherings. [11] Meanwhile, twelve states have yet to issue official statewide stay-at-home orders, including Alabama, Arkansas, Iowa, Missouri and North Dakota.[12] All states have issued some form of restriction, but their degree of prohibitions and exemptions vary. Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases and a key leader in the administration’s coronavirus response, does not believe a nationwide shutdown is necessary because of the variation in infection rates across the states. [13] Nonetheless, responsibility for making decisions about the pandemic rests with the states, not the federal government, so look to your state governor for an update on your state’s individual restrictive stay-at-home measures during this pandemic.

 

[1] Walter Olson, Federalism and the Coronavirus, The Wall Street Journal https://www.wsj.com/articles/federalism-and-the-coronavirus-lockdown-11585609012

(Mar. 30, 2020).

[2] John Yoo, Pandemic Federalism, National Review, https://www.nationalreview.com/2020/03/pandemic-federalism/ (Mar. 20, 2020).

[3] Id.

[4] Id.

[5] See Olson, supra note 1.

[6] See Yoo, supra note 2.

[7] Nurith Aizenmen, Experts Say the U.S. Needs a National Shutdown ASAP—But Differ on What Comes Next, National Public Radio https://www.npr.org/sections/health-shots/2020/03/27/822146372/experts-say-the-u-s-needs-a-national-shutdown-asap-but-differ-on-what-comes-next (Mar. 27, 2020).

[8] See Yoo, supra note 2.

[9] Reid Wilson, Could Trump Declare a National Coronavirus Shutdown? Momentum is Rising, The Hill https://thehill.com/homenews/state-watch/488735-could-trump-declare-national-coronavirus-shutdown-momentum-is-rising (Mar. 20, 2020).

[10] Id.

[11] Id.

[12] Cristina Marcos, Several States Have Yet to Issue Stay-at Home Orders, The Hill https://thehill.com/homenews/state-watch/490695-several-states-have-yet-to-issue-stay-at-home-orders (Apr. 1, 2020).

[13] See Aizenman, supra note 6.

Morgan Marmaro, CLS ’21

For many of us, the COVID-19 pandemic has brought life to a halt. States have rushed to implement social distancing measures, ordering the close of non-essential businesses while non-essential workers work from home. This has provoked the question of “what is essential?” Hospitals, sanitation, courier, and restaurant workers all made the cut.[1] While keeping hospitals and streets clean are essential, Trump’s Environmental Protection Agency made the decision on March 26th that enforcing environmental violations was non-essential.[2]

There has been a backlash against the new temporary policy as many see the move as the administration taking advantage of an unprecedented global pandemic to advance their deregulatory agenda. Though facilities must comply with regulations “where reasonably practicable,” the EPA will not “seek penalties for noncompliance with routine monitoring and reporting obligations.”[3] The EPA announcement stresses that the measures are temporary and only affect “routine monitoring and reporting obligations.”[4] Moreover, the policy only applies to civil violations and “does not provide leniency for intentional criminal violations of law.”[5]

To qualify for discretionary enforcement, facilities must provide documentation of “decisions made to prevent or mitigate noncompliance” and establish a causal link between the COVID-19 pandemic and the company’s noncompliance.[6] David Uhlmann, former chief of the environmental crimes section at the Justice Department, noted that suspicion of the decision—given Trump’s “deplorable record” on environmental protection—is not unfounded, but that “this policy may be less nefarious than the alarming environmental rollbacks that the Trump EPA continues to pursue.”[7]

Environmental advocates are unconvinced by the supposedly narrowly tailored policy. While some flexibility for the current pandemic might be understandable, environmental advocates are concerned that the COVID-19 pandemic is merely pretextual. Cynthia Giles, the former head of the EPA’s Office of Enforcement, noted that “[t]his EPA statement is essentially a nationwide waiver of environmental rules for the indefinite future” and that she is “not aware of any instance when EPA ever relinquished this fundamental authority as it does in this memo.”[8] After all,  as noted by senior attorney for Environment America, John Rumpler, “the absence of verified monitoring strikes at the heart of environmental compliance.”[9]

The policy also has some inconsistencies. While the EPA says documentation about the causal link between noncompliance and COVID-19 is mandatory to avail oneself of the enforcement discretion, it still forgoes all fines or civil penalties for failure to monitor, report, or meet other requirements.[10]  The L.A. Times was quick to note that the oil and gas industries had been lobbying for relaxed environmental enforcement due to staffing issues.[11] Gina McCarthy, the former Obama-era EPA chief explained her outrage at the policy, noting that the waiver applied to “standard work that takes very few people to do.”[12] She further commented that many of the companies lobbying to relax standards due to staffing issues are also lobbying to keep their factories open so workers can keep their jobs.[13]

By implementing this policy, states will lack critical data on what pollutants have been released, hampering future environmental clean-up efforts. It is also interesting to see an ex ante pass being given to facilities rather than dealing with cases as they come up post-pandemic. How effective, or ineffective, the nascent policy will be depends entirely on enforcement and implementation.

 

[1] And from all of us quarantined at home, thank you profusely!

[2] Press Release, Environmental Protection Agency, EPA Announces Enforcement Discretion Policy for COVID-19 Pandemic, EPA.GOV (Mar. 26, 2020), https://www.epa.gov/newsreleases/epa-announces-enforcement-discretion-policy-covid-19-pandemic-0.

[3] Isaac Scher, The Environmental Protection Agency says it won’t enforce its own rules during the coronavirus pandemic, Business Insider (Mar. 27, 2020), https://www.businessinsider.com/coronavirus-epa-stops-enforcing-environmental-protection-rules-2020-3.

[4] Ledyard King, EPA suspends some public health monitoring and enforcement because of the coronavirus crisis, USA Today (Mar. 27, 2020), https://www.usatoday.com/story/news/politics/2020/03/27/coronavirus-crisis-epa-eases-key-permitting-enforcement-oversight/2925990001/.

[5] See Scher.

[6] Press Release, Environmental Protection Agency, EPA Announces Enforcement Discretion Policy for COVID-19 Pandemic, EPA.GOV (Mar. 26, 2020), https://www.epa.gov/newsreleases/epa-announces-enforcement-discretion-policy-covid-19-pandemic-0.

[7] Susanne Rust et al., Citing coronavirus, EPA suspends enforcement of environmental laws, L.A. Times (Mar. 27, 2020), https://www.latimes.com/environment/story/2020-03-27/epa-suspends-enforcement-amid-coronavirus.

[8] See Scher.

[9] See King.

[10] Susanne Rust et al., Citing coronavirus, EPA suspends enforcement of environmental laws, L.A. Times (Mar. 27, 2020), https://www.latimes.com/environment/story/2020-03-27/epa-suspends-enforcement-amid-coronavirus.

[11] Id.

[12] Id.

[13] Id.

Wicy Wang, CLS ’21

The story of the proposed $26 billion merger between T-Mobile and Sprint began last year, when the Federal Communications Commission and the U.S. Justice Department approved the deal contingent, in part, on the divestiture of certain assets.[1] However, there remained concerns about the merger, which would combine the third- and fourth-largest wireless carriers in the U.S. into an expansive corporation servicing approximately 100 million customers.[2] In June 2019, ten attorney generals, including the New York State Attorney General, filed suit in the Southern District of New York to enjoin the merger from taking place under Section 7 of the Clayton Act; they argued that the increased market concentration would result in “diminished competition, higher prices, and reduced quality and innovation.”[3]

On February 11, the S.D.N.Y. dismissed the case, allowing the merger between Sprint and T-Mobile to move forward.[4] The court did not agree that “the New T-Mobile would pursue anticompetitive behavior that . . . will yield higher prices or lower quality for wireless telecommunications services.”[5] One important factor the court noted was that T-Mobile and Sprint have agreed to keep prices steady for three years following the merger; as part of its antitrust analysis, the court was also skeptical that, absent the merger, Sprint’s financial situation would have allowed it to remain competitive in the telecommunications industry.[6]

From an antitrust perspective, the court primarily looked at two ways in which such a merger would be anticompetitive.[7] Firstly, the court dismissed the possibility that the merger would enable “coordinating effects,” where rival firms work together to set high prices that harm consumers. The court gave particular credence to the argument that in the telecommunications industry, firms compete on other dimensions than price such as capacity advantages.[8] Secondly, the court also discounted “unilateral effects” resulting from a general lack of competition, citing AT&T and Verizon as other active competitors in the telecommunications space.[9]

The merger still has its fair share of skeptics. FCC Jessica Rosenworcel argued last year that the promise by T-Mobile not to raise prices is rendered meaningless by the existence of loopholes and surcharges, and that such a promise might not be enforced by the FCC anyway.[10] Furthermore, the telecommunications industry is notorious for its lack of competition at the local level, because of how closely service is tied to geographic coverage; in the New York City metropolitan area, for instance, “the combined company’s share of subscribers would exceed 50%.”[11] And unsurprisingly, the merger is taking place against a backdrop of general industry consolidation;[12] in 2018, AT&T completed its $85.4 billion merger with Time Warner.

What might explain the court’s decision to dismiss this case is a history of generally conservative judicial approaches to antitrust cases, which are traditionally left to federal agency review. In its decision, the court also expressed a fundamental ambivalence towards deciding antitrust cases, noting that the presentation of expert witnesses on both sides was not only unhelpful but counterproductive, and that “conflicting engineering, economic, and scholarly business models . . . essentially cancel each other out as helpful evidence.”[13] Later on in the opinion, the court argues that without discounting economic models, “more traditional judicial methods” are a better approach.[14] By relying on “traditional judicial methods,” however, the court does turn away from data-driven analyses by experts, relying instead on statements from executives in making its decision.[15]

For now, the New York Attorney General has declined to appeal the case.[16] The merger is moving forward, pending approval from the California Public Utility Commission,[17] although it is unclear at the moment how the state public utility commission’s decision would affect the merger.[18] Regardless of whether the merger eventually takes place, this particular case provides an interesting case of state attorney generals asserting their interest under federal antitrust law.

 

[1] Makena Kelly, T-Mobile and Sprint Merger Approved By Justice Department, The Verge (July 26, 2019) https://www.theverge.com/2019/7/26/6646158/t-mobile-sprint-merger-justice-department-approves-26-billion-fcc.

[2] Edmund Lee, T-Mobile and Sprint Are Cleared to Merge as the Big Get Bigger, The New York Times (Feb. 11, 2020) https://www.nytimes.com/2020/02/11/business/media/t-mobile-sprint-merger.html.

[3] Redacted Third Amended Complaint, New York v. Deutsche Telekom AG, No. 1:19-cv-5434 (S.D.N.Y. Sept. 18, 2019).

[4] New York v. Deutsche Telekom AG, 2020 WL 635499 (S.D.N.Y. 2020).

[5] Id. at 4.

[6] Id.

[7] Id. at 39.

[8] Id. at 41.

[9] Id. at 43.

[10] Jessica Rosenworcel, The T-Mobile and Sprint Merger Will Only Hurt Consumers, The Atlantic (Oct. 16, 2019) https://www.theatlantic.com/ideas/archive/2019/10/t-mobile-and-sprints-merger-will-hurt-consumers/599245.

[11] Redacted Third Amended Complaint, New York v. Deutsche Telekom AG, No. 1:19-cv-5434 (S.D.N.Y. Sept. 18, 2019).

[12] Edmund Lee, T-Mobile and Sprint Are Cleared to Merge as the Big Get Bigger, The New York Times, (Feb. 11, 2020) https://www.nytimes.com/2020/02/11/business/media/t-mobile-sprint-merger.html.

[13] New York v. Deutsche Telekom AG, 2020 WL 635499 at 2 (S.D.N.Y. 2020).

[14] Id. at 44.

[15] Id.

[16] Jennifer Ablan and Ortenca Aliaj, New York Decides Against T-Mobile-Sprint Merger Appeal, Financial Times (Feb. 16, 2020) https://www.ft.com/content/66fba848-50ed-11ea-90ad-25e377c0ee1f.

[17] Jon Reid and Victoria Graham, Sprint, T-Mobile Still Need OK From California Utility Regulator, Bloomberg Law (Feb. 11, 2020) https://news.bloomberglaw.com/tech-and-telecom-law/sprint-t-mobile-still-need-ok-from-california-utility-regulator.

[18] Sarah Krouse, California Regulators a Potential Obstacle to T-Mobile, Sprint Merger (Jan. 26, 2020), https://www.wsj.com/articles/california-regulators-a-potential-obstacle-to-t-mobile-sprint-merger-11580063967.

Zhihao (Amy) Zhang, CLS ’21

The Second Circuit recently grappled with the scope of a landlord’s duty to intervene in tenant-on-tenant racial harassment under the Fair Housing Act (“FHA”), and the decision may have significant consequences for the future of landlord-tenant litigation.

In Francis v. Kings Park Manor, Inc., the plaintiff, after moving into an apartment complex owned by the defendants, soon became the victim of “a brazen and relentless campaign of racial harassment, abuse, and threats.”[1] While the plaintiff sought help from the police several times and reported the incidents to his landlord, the landlord failed to respond to his complaints, let alone taking any substantive steps to resolve the conflict or evict the harasser from the property. The harasser eventually pled guilty to harassment charges, and the plaintiff subsequently filed this suit against his landlord.

One of the grounds on which the harassed tenant sued his landlord is alleged violation of section 3604 (b) of the FHA[2] and section 3617 of the Act.[3] The plaintiff argued that in failing to remedy a racially hostile housing environment, the landlord’s behavior amounted to intentional discrimination prohibited by the FHA. While the district court dismissed the plaintiff’s FHA claims, the Second Circuit took a different position and reinstated the claims. Noting that the defendants were “actually aware” of the discriminatory behavior and had a history of “[intervening] against other tenants regarding non‐race‐related violations of their leases or of the law,” the Second Circuit concluded that the landlord’s conduct evinced intentional discrimination that is cognizable under the FHA.[4]

In reinstating the plaintiff’s claims, the Second Circuit joined the Seventh Circuit in deeming landlords liable when they fail to intervene in situations concerning tenant-on-tenant harassment on the basis of a protected class.[5] This ruling can lead to a significant increase in litigation attempting to hold landlords accountable even when they themselves are not the primary perpetrators of discrimination. Tenants under the jurisdiction of other circuit courts may cite to this opinion and urge their courts to follow suit.

There is, however, some concern with the actual impact of the Second Circuit’s decision and the legal uncertainty it may create. First, since the court determines that landlord liability in the racial discrimination context can be predicated on a finding of past interventions by the landlord in non-race-related disputes, this may create perverse incentives for landlords to stop addressing all disputes going forward, thus diminishing the quality of housing services. Furthermore, as Judge Livingston points out in her dissent, the court provides no “parameters of the necessary intervention.”[6] The question remains as to what responses landlords must produce to tenants’ complaints in order to avoid a finding of intentional discriminatory practice. In the face of mounting threats of litigation, they may well pass along the burden to those seeking protection under the FHA through more onerous housing costs, further rendering housing inaccessible to those who need it the most.[7]

 

[1] 944 F.3d 370, 373 (2d Cir. 2019).

[2] Section 3604(b) of the FHA makes it unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(b).

[3] “It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [the Act].” 42 U.S.C. § 3617.

[4] Francis, 944 F.3d at 379.

[5] Joseph William Singer, Landlord may be liable for fair housing violation if no response to one tenant’s racial harassment of another, Property Law Developments (Dec. 7, 2019), https://scholar.harvard.edu/jsinger/blog/landlord-may-be-liable-fair-housing-violation-if-no-response-one-tenants-racial.

[6] Id. at 395 (Livingston, J., dissenting).

[7] Id. (cautioning that “this decision . . . is but another stumble along the path to ever more litigation that increases housing costs for those who rent, renders affordable housing more scarce, and risks the loss of housing for some of the most vulnerable among us”).

Susannah Price, CLS ’21

On January 30, 2020, the Ninth Circuit issued a decision that may usher intense scrutiny of universities’ past and present practices for addressing sexual misconduct on their campuses.

In Karasek v. Regents of the University of California,[1] three former students who were sexually assaulted while undergraduates at the University of California, Berkeley (Berkeley), sued their alma mater, asserting two theories of liability under Title IX of the Education Amendments Act of 1972 (Title IX).[2]  First, they alleged that Berkeley failed to adequately investigate and respond to their individual reports of sexual assault. Second, they alleged that Berkeley cultivated “a general policy of deliberate indifference to sexual misconduct” against female students that created a “sexually hostile environment” and increased the risk that they would be sexually assaulted.[3] This latter theory of deliberate indifference is known as a “pre-assault claim” due to its reliance on events that occur before the assault in question.[4] The Ninth Circuit affirmed the district court’s judgment in favor of Berkeley with respect to the plaintiffs’ individual assaults, but vacated its dismissal of the pre-assault claim and remanded for further proceedings.[5]

In holding that pre-assault deliberate indifference is a cognizable theory of Title IX liability, the Court explained that a school need not have had actual knowledge of a specific assault for liability to attach when that school’s official policy violates Title IX.[6] Thus, rather than zeroing in on a school’s response to a particular report of sexual assault, pre-assault claims allege that a school’s policies and practices, in general, contribute to the occurrence of sexual misconduct by failing to adequately prevent it.[7] According to the Court, a pre-assault claim should not be dismissed if the plaintiff plausibly alleges that: “(1) a school maintained a policy of deliberate indifference to reports of sexual misconduct, (2) which created a heightened risk of sexual harassment (3) in a context subject to the school’s control, and (4) the plaintiff was harassed as a result.”[8] The Court did not provide further guidance as to what conditions would satisfy this standard, but rather left it to the district court to determine on remand.[9]

Despite the Court’s reassurances that universities are not required to “purge” their campuses of all sexual misconduct or “guarantee[] the good behavior of [their] students,” Karasek has serious implications for universities in the Ninth Circuit. Some predict that this decision will cause previously adjudicated Title IX complaints to face more exacting inspection.[10] For example, since Karasek establishes a framework that focuses on policies prior to the occurrence of sexual assault, plaintiffs bringing pre-assault claims will likely seek to introduce the details of past complaints as relevant to proving their own cases.[11] Attorneys representing educational institutions worry that this, in turn, may raise privacy concerns and increase the scope and cost of discovery.[12]

While the precise outcome remains to be determined, this ruling gives new hope to victims of sexual assault on college campuses.[13] Karasek is expected to incentivize Berkeley and other universities across the Ninth Circuit to ensure prompt and effective responses to future allegations, provide preventative training opportunities for students, and assess the overall climate of their campuses with respect to sexual misconduct.[14]

 

[1] Karasek v. Regents of the Univ. of Cal., 2020 U.S. App. LEXIS 2933, *1 (9th Cir. Jan. 30, 2020).

[2] Id. at *4.

[3] Id.

[4] Id.

[5] Id.

[6] Id. at *38-39.

[7] Id.

[8] Id. at *39-40.

[9] Id. at *45.

[10] Susan D. Friedfel and Jason A. Ross, University’s Handling of Students’ Pre-Assault Complaints of Sexual Misconduct Open to Title IX Claim, Nat’l L. Rev. (Feb. 14, 2020), https://www.natlawreview.com/article/university-s-handling-students-pre-assault-complaints-sexual-misconduct-open-to.

[11] Id.

[12] Id.

[13] See Press Release, The Zalkin Law Firm, The Zalkin Law Firm Secures Landmark Ruling in Title IX Sexual Assault Lawsuit Against University of California Berkeley (Feb. 3, 2020), https://www.pr.com/press-release/804817.

[14] See id. See also Paige Hoster Good, Across Campus: Title IX ‘Pre-Assault’ Claims May Increase Liability for Universities, McAfee & Taft (Feb. 24, 2020), https://www.jdsupra.com/legalnews/across-campus-title-ix-pre-assault-97179/.

Noah Bunnell, CLS ’21

Amid a flurry of increasingly aggressive immigration actions by the Trump administration, a number of lawsuits challenging the new DHS “public charge” rule, governing the admissibility of immigrants into the United States, continue to wend their way through the courts.

On January 27, 2020, the Supreme Court granted a stay pending appeal of a preliminary injunction issued by a federal district court in New York, lifting the nationwide injunction — except in Illinois, where a statewide injunction remained in place — and allowing the “public charge” rule to go into effect.^[1] But on February 21, 2020, by way of another 5-4 vote, the Court granted an additional stay with respect to the State of Illinois,^[2] giving leave to U.S. Citizenship and Immigration Services (USCIS) to begin implementing the final rule in all 50 states on February 24, 2020.^[3]

What’s at stake here, most immediately, is immigrants’ eligibility for permanent legal status. Under the Immigration and Nationality Act, an individual seeking permanent resident status is inadmissible if he, “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.”^[4] The new rule — which defines “public charge” as an “alien who receives one or more public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months)”^[5] — amounts to a significant expansion of DHS’s previous interpretation of the statute.

For the past 20 years, the federal government defined “public charge” as someone who had become or was likely to become “primarily dependent on the government for subsistence.”^[6] The guidance issued in 1999 “specified that the federal government would not consider use of Medicaid, CHIP, or other supportive programs in public charge determinations, with the exception of use of Medicaid for long-term institutional care.”^[7] DHS’s redefinition now permits USCIS to deny residency to anyone it deems likely to receive any of a wide range of cash or non-cash benefits.^[8]

In their challenge to the rule, three states, New York City, and a number of immigrant rights groups have argued, among other things, that the administration’s interpretation of the rule is in excess of its statutory jurisdiction and arbitrary and capricious under § 706(2) of the Administrative Procedure Act.^[9] It remains to be seen whether the Court will end up facing any of these issues on the merits, but the 5-4 grants of stay in Department of Homeland Security v. New York and Wolf v. Cook County, Illinois surfaced broader doctrinal issues that continue to agitate some members of the Court.

Along with the January 27 grant of stay, Justice Gorsuch^[10] filed a concurring opinion, joined by Justice Thomas, in which he decried the “increasingly common practice of trial courts ordering relief that transcends the cases before them. Whether framed as injunctions of ‘nationwide,’ ‘universal,’ or ‘cosmic’ scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case.”^[11]

Relying on a 2017 law review article by Samuel Bray,^[12] Gorsuch argued that nationwide injunctions are constitutionally suspect,^[13] expressing hope that the Court “might at an appropriate juncture take up some of the underlying equitable and constitutional questions” raised by their use.^[14] Echoing Bray, Gorsuch also contended that as a matter of judicial policy such injunctions are “patently unworkable, sowing chaos for litigants, the government, courts, and all those affected.”^[15] Specifically, Gorsuch argued, they facilitate forum shopping,^[16] increase the risk of conflicting injunctions,^[17] prevent legal questions from percolating up through multiple circuits,^[18] and “tend to force judges into making rushed, high-stakes, low-information decisions.”^[19]

The other side of the argument, left largely untouched by Gorsuch’s concurring opinion, counsels that universal injunctions play an important role in “preventing widespread harm.”^[20] Forcing plaintiffs to wait for a lawsuit to reach the Supreme Court before an injunction can be issued ignores the fundamental reality that injunctions are issued to prevent “irreparable harm.” And in the immigration context in particular, nationwide injunctions may be the only means of affording complete relief to plaintiffs.^[21] The alternative — permitting federal courts only to grant injunctions of limited geographical scope — would potentially create massive administrability problems, rendering agency rules enforceable in one place and unenforceable in another.^[22]

Sounding a very different note to Gorsuch in her dissent from the Court’s February 21 grant of stay, Justice Sotomayor took aim at the government’s increasing willingness to seek — and the Court’s increasing willingness to grant — stays pending appeal that overrule lower court injunctions.^[23] The Court has historically recognized that such stays represent “extraordinary relief,” and should only be offered where a party can demonstrate a likelihood of irreparable harm.^[24] Recently, however, as Sotomayor’s dissenting opinion emphasized, the government has made an “unprecedented number of requests for emergency or extraordinary relief from the Justices.”^[25]

Indeed, over the first two and a half years of the Trump administration, the DOJ filed over 20 applications for stays at the Supreme Court, compared to eight total applications during the prior 16 years under Bush and Obama.^[26] And, as Sotomayor argued, the Court has recently granted these requests in a number of high-profile immigration cases, despite being forced “to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument.”^[27]

To hear and grant an application for stay, in Sotomayor’s view — particularly here, with the Seventh Circuit scheduled to hear oral argument on February 26, 2020 — frustrates the ability of lower courts to fully consider these questions and asks the Court to review them prematurely. An injunction preserving “a 20-year status quo” immigration policy in one state, on the other hand, hardly rises to the level of irreparable harm.^[28]

Whether the Justices will have occasion to consider these issues squarely anytime soon remains uncertain, but as federal courts continue to issue nationwide injunctions and as the DOJ continues to seek emergency stays, the Court may not be able to refrain from addressing these questions for long.

 

^[1] Department of Homeland Security v. New York, 140 S.Ct. 599 (mem.) (2020).

^[2] Wolf v. Cook County, Illinois, No. 19A905, 2020 WL 858799 (mem.) (Feb. 21, 2020).

^[3] Press Release, U.S. Citizenship and Immigration Services, USCIS Announces Public Charge Rule Implementation Following Supreme Court Stay of Nationwide Injunctions (Jan. 30, 2020), https://www.uscis.gov/news/news-releases/uscis-announces-public-charge-rule-implementation-following-supreme-court-stay-nationwide-injunctions.

^[4] Immigration and Nationality Act § 212(a)(4), 8 U.S.C. § 1182(a)(4)(A) (2012). In making that determination, the statute requires the consular officer or Attorney General to consider the applicant’s age, health, family status, assets, resources, financial status, education, and skills. §1182(a)(4)(B). The statute does not define “public charge.”

^[5] Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41292, 41295 (Aug. 14, 2019) (codified at 28 C.F.R. Pts. 103, 212, 213, 214, 245, 248).

^[6] Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28689 (Mar. 26, 1999).

^[7] Changes to “Public Charge” Inadmissibility Rule: Implications for Health and Health Coverage, Kaiser Family Foundation (Aug. 12, 2019), https://www.kff.org/disparities-policy/fact-sheet/public-charge-policies-for-immigrants-implications-for-health-coverage/#endnote_link_417492-5.

^[8] The rule “defines public benefits to include federal, state, or local cash benefit programs for income maintenance and certain health, nutrition, and housing programs that were previously excluded from public charge determinations, including non-emergency Medicaid for non-pregnant adults, the Supplemental Nutrition Assistance Program (SNAP), and several housing programs.” Changes to “Public Charge” Inadmissibility Rule: Implications for Health and Health Coverage, Kaiser Family Foundation (Aug. 12, 2019), https://www.kff.org/disparities-policy/fact-sheet/public-charge-policies-for-immigrants-implications-for-health-coverage/#endnote_link_417492-5.

^[9] Complaint at 112–114, Make the Road New York v. Cuccinelli, 2019 WL 5484638 (S.D.N.Y. 2019) (19 Civ. 7993 (GBD)).

^[10] Notably, Justice Gorsuch’s doctrinal opposition to the modern administrative state stands in some tension with his hostility to the nationwide injunction — the former position tending to empower federal judges and the latter tending to restrain them. For Gorsuch’s views on the administrative state, see, e.g., Kisor v. Wilkie, 139 S.Ct. 2400, 2446 n.114 (2019) (Gorsuch, J., concurring in judgment) (“To be sure, under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), we sometimes defer to an agency’s construction of a statute. But there are serious questions, too, about whether that doctrine comports with the APA and the Constitution.” (emphasis in original)).

^[11] Department of Homeland Security v. New York, 140 S.Ct. 599, 600 (2020). For more on the distinction between “nationwide” and “universal” injunctions, see Amanda Frost, In Defense of Nationwide Injunctions, 93 NYU L. Rev. 1065, 1071 (2018) (“[N]o one denies that district courts have the power to enjoin a defendant’s conduct anywhere in the nation (indeed, the world) as it relates to the plaintiff; rather, the dispute is about who can be included in the scope of the injunction, not where the injunction applies or is enforced. For that reason, some scholars refer to injunctions that bar the defendant from taking action against nonparties as ‘universal injunctions,’ ‘global injunctions,’ or ‘defendant-oriented injunctions.’”) (citations omitted)).

^[12] Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417 (2017). For a response to Bray, see Spencer E. Amdur & David Hausman, Nationwide Injunctions and Nationwide Harm, 131 Harv. L. Rev. 49 (2017).

^[13] Department of Homeland Security v. New York, 140 S.Ct. 599, 600 (2020) (Gorsuch, J., concurring in the grant of stay) (When a district court orders “the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies. Injunctions like these thus raise serious questions about the scope of courts’ equitable powers under Article III.”).

^[14] Id. at 601.

^[15] Id. at 600.

^[16] Id. at 601 (“Because plaintiffs generally are not bound by adverse decisions in cases to which they were not a party, there is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide.”).

^[17] Id. at 600.

^[18] Id. (“The traditional system of lower courts issuing interlocutory relief limited to the parties at hand . . . encourages multiple judges and multiple circuits to weigh in only after careful deliberation, a process that permits the airing of competing views that aids this Court’s own decisionmaking process.”).

^[19] Id.

^[20] Spencer E. Amdur & David Hausman, Nationwide Injunctions and Nationwide Harm, 131 Harv. L. Rev. 49, 50 (2017) (“Indeed, the Supreme Court has recently suggested that sometimes ‘the equitable balance’ in a case will favor extending injunctive relief to ‘parties similarly situated to’ the plaintiffs” (citing Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (per curiam)).

^[21] Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. 1065, 1090–94 (2018).

^[22] Id. at 1098–1101.

^[23] Wolf v. Cook County, Illinois, No. 19A905, 2020 WL 858799 (Feb. 21, 2020) (Sotomayor, J., dissenting from grant of stay); see also Barr v. East Bay Sanctuary Covenant, 140 S.Ct. 3, 4 (2019) (Sotomayor, J., dissenting from grant of stay) (“Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively.”).

^[24] Williams v. Zbaraz, 442 U.S. 1309, 1316 (1979) (Stevens, J., in chambers).

^[25] Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123, 124 (2018). Vladeck argues that the uptick in grants of stay can be attributed less to a rise in nationwide injunctions than to a shift in the Court’s conception of irreparable harm. “[A] majority of the Justices now appear to believe that the government suffers an irreparable injury militating in favor of emergency relief whenever a statute or policy is enjoined by a lower court, regardless of the actual impact of the lower court’s ruling — or the harm the statute or policy would cause if allowed to go into effect.” Id. at 126.

^[26] Id. at 125.

^[27] Wolf, 2020 WL 858799, at *3.

^[28] Id.