Monthly Archives: February 2022

The Supreme Court is going to decide as early as the end of next week whether to hear the most recent constitutional challenge to the Indian Child Welfare Act (ICWA). According to the provisions of ICWA, which was passed in 1978, tribal governments have a say over where children with Indian blood are placed if there's ever a dispute over custody. In practice, this has meant that tribal governments can block that child's placement for foster care or adoption with a non-Indian familyeven if no Indian family is available. Last year, the U.S. Court of Appeals for the Fifth Circuit affirmed, by a divided vote, the district court's judgment that ICWA's preference for adoptive placement with other Indian families violates the equal-protection component of the Fifth Amendment.

Leaving aside for a moment the constitutional question, it is worth asking if ICWA has succeeded on a pure policy level: Has it, in fact, advanced the welfare of Indian children? The answer is a resounding no.

Anyone who follows these cases may wonder why it is that so many Native children end up staying in a non-Native foster home for years at a time, bonding with the parents, only for an Indian family to be found on the other side of the country, necessitating authorities ripping young children away from the only family they have ever known.

Nor is it just the cases that make the headlines. Take the Cliffords, a Minnesota couple who took in a five-year-old. More than two years later, the child was taken away to be adopted by a grandmother who had previously been denied placement. Or the Blacks, a Wyoming couple that had taken in two half-siblings (an eight-year old and two-month-old), and cared for one for four years and the other for eight years, before the boys were placed with an aunt they didn't know.

The reason for these outcomes is actually in the math. Take Minnesota, which has one of the largest Native populations in the country. There are about 7,800 kids in the foster care system, about a quarter of whom are classified as Nativedespite the fact that Natives make up only about 2% of Minnesota's population.

Sixty percent of the Indian kids who are in foster care are placed there by a tribal agency. There is a popular misconception out there that Indian kids are being snatched from Indian families and communities by non-Natives who act out of racial bias. Indeed, this is one of the reasons that ICWA was passed in the first placethe idea that white caseworkers looked at Indian children living in poverty and removed them to white families, instead of giving them the material support they deserve.

Whatever the truth of that a half-century ago, these days it is often tribal members who are deciding when kids are at risk and need to be removed. But only 12.5% of the 3,200 non-relative foster homes available are Native. In other words, there are about 2,000 Indian kids in foster care and 400 Native homes to place them in.

The result is that Native kids are regularly placed with non-Native families, often for years at a time, and bond with these families. But because of ICWA's provisions designed to ensure Native children are only adopted by Indian families, it is much harder for them to find permanent homes. When Indian families are found, they are often from a different tribe, in a different stateand some of those placements are done over the objection of children's own immediate and extended family members. The trauma that results from these moves away from biological relatives is only compounded by the fact that the Native children have created strong bonds with their foster families.

Indian children are also forced to spend a much longer period of time in the foster system than their peers of other races. According to the timelines laid out in the Adoption and Safe Families Act of 1997, when children are in foster care for more than 15 of the last 22 months, states are supposed to move to terminate parental rights. A bipartisan coalition of legislators considered that a child spending as much as two years in foster care is severely detrimental to that child's well-being. Foster care, after all, is supposed to be temporary.

But thanks to ICWA, Native kids can, and do, spend much longer in care. In Minnesota, there are almost 200 Native kids who have been in care for longer than three years. That's a higher raw number than children of any other race. Taking these children away from loving families with whom they have developed secure attachments after so many yearsregardless of the families' race or ethnicityis nothing short of cruel. Any child welfare policy that produces this kind of trauma is not really a policy concerned with the welfare of a child.

Natives residing in the Fifth Circuit's jurisdiction now need not worry about the impacts of this detrimental law, but only the Supreme Court can ensure equal protections for Indian children extend across the nation by striking down ICWA.

Mark Fiddler is a progressive Democratic activist, a fellow at the Academy of Adoption and Assisted Reproduction Attorneys and a member of Turtle Mountain Band of Chippewa Indians. Naomi Schaefer Riley is a senior fellow at the American Enterprise Institute and author of No Way to Treat a Child.

The views expressed in this article are the writers' own.

Original post:
The Case Against the Indian Child Welfare Act | Opinion - Newsweek

Over the past several years, many federal courts have weighed in on whether a key Supreme Court decision requires them to dismiss non-resident opt-in plaintiffs in federal wage and hour collective actions, and there is now disagreement among appeals courts about how to proceed. Just last month, the First Circuit Court of Appeals issued a decision disagreeing with prior decisions from the Sixth and Eighth Circuits, declining to extend the helpful SCOTUS ruling to Fair Labor Standards Act (FLSA) collective actions. While these prior decisions provided clarity, guidance, and a favorable outlook for employers, last months First Circuit decision blew up all those positive effects and left employers feeling confused. Given the ongoing debate over the applicability of the SCOTUS ruling and the new circuit split, what do employers need to know?

A Closer Look at the Key SCOTUS Ruling

In 2017, the Supreme Court handed down a helpful decision in Bristol-Myers Squibb Co. v. Superior Court of California. The case involved a group of close to 700 plaintiffs who filed multiple complaints in California state courts asserting products liability and other claims under state law. The plaintiffs claimed they suffered injuries from a drug sold and manufactured by a pharmaceutical company that was not headquartered or incorporated in California and that maintained substantial operations outside of California. Pursuant to a state procedural rule, the plaintiffs combined their lawsuits into one mass-tort action. The suit included non-resident plaintiffs who did not obtain or use the drug in California or receive any treatment in California for their purported injuries.

The case eventually made its way to the Supreme Court, which held that the Fourteenth Amendments Due Process Clause prohibited state courts from exercising specific jurisdiction over state law claims asserted by non-resident plaintiffs who lacked any connection to the forum and the claims at issue.

Specific jurisdiction is one of the two types of jurisdiction that can be asserted by a court under the Fourteenth Amendments Due Process Clause. The other is general jurisdiction. Specific jurisdiction requires a suit to arise out of relate to a defendants contacts with the forum state. General jurisdiction, which did not apply in Bristol-Myers, requires a corporation to have contacts that are so constant and pervasive as to render it essentially at home in the forum state.

Sixth and Eight Circuits Extend SCOTUS Ruling to FLSA Collective Claims

On consecutive days in August 2021, the Sixth and Eighth Circuit Courts of Appeal issued decisions that relied upon the rationale of Bristol-Myers and held that district courts lacked specific jurisdiction over non-resident opt-in plaintiffs FLSA claims. The Sixth Circuits ruling in Canaday v. Anthem Companies, Inc. applied to employers in Ohio, Kentucky, Michigan, and Tennessee, and the Eighth Circuits Vallone v. CJS Solutions Group decision covered Missouri, Minnesota, Arkansas, Iowa, Nebraska, South Dakota, and North Dakota.

These appeals courts found that the FLSA does not provide for nationwide service of process. As a result, they looked to Rule 4(k) of the Federal Rules of Civil Procedure and found that jurisdiction over the non-resident opt-ins claims was limited based on state long-arm statutes and the Fourteenth Amendments Due Process Clause. Since the lower federal courts lacked general jurisdiction over the defendants in each of the cases, the Sixth and Eighth Circuits analyzed whether the district courts could exercise specific jurisdiction based on each of the nonresident opt-in plaintiffs claims. The appellate courts concluded they could not due to the lack of connection between the out-of-state claims and the forum states.

First Circuit Declines to Extend SCOTUS Decision

On January 13, 2022, the First Circuit Court affirmed the denial of an employers motion to dismiss the FLSA claims of nonresident opt-in plaintiffs, expressly disagreeing with the Canaday and Vallone decisions from the Sixth and Eighth Circuits and setting up a classic circuit split.

The First Circuits Waters v. Day & Zimmermann NPS, Inc. decision, covering employers operating in Massachusetts, Rhode Island, Maine, New Hampshire, and Puerto Rico, distinguished the Supreme Courts Bristol-Myers decision. It concluded that the Supreme Courts reasoning in that case was based on the Fourteenth Amendments limits on state courts exercising jurisdiction over state-law claims, not federal law claims. According to the First Circuit, a federal courts jurisdiction over federal claims is governed by the Fifth Amendment, which does not bar an out-of-state plaintiff from suing to enforce their rights under a federal statute in federal court, provided the defendant maintains the requisite minimum contacts with the United States.

The First Circuit also disagreed that Rule 4(k)(1) limited a federal courts exercise of personal jurisdiction in collective actions. The First Circuit examined the text of the Rule and its history and determined that Rule 4(k)(1) only concerns service of a summons, not limits on a federal courts jurisdiction after a summons is properly served. As further support, the First Circuit pointed to Rule 20 of the Federal Rules of Civil Procedure, which allows for the joinder of parties whose claims arise from the same transaction [or] occurrence and present common question[s] of law or fact. The First Circuit also pointed to the FLSA and its legislative history to show that Congress created the collective action mechanism to allow all affected employees to bring a single suit against a single employer.

What Should Employers Facing Collective Actions Do?

With the recent split among circuit courts, it is expected that the Supreme Court will eventually take up the issue of Bristol-Myerss applicability to FLSA collective actions. However, SCOTUS is notoriously unpredictable, and theres no telling when or if it will take up this issue to resolve the circuit split. Its docket for the 2021-2022 term is already full, meaning we wont see any substantial action on this question until Fall 2022 at the earliest.

In the meantime, employers faced with FLSA collective actions will want to work with their legal counsel to understand whether Bristol-Myers provides a viable basis for narrowing the scope of any collective action you face. While the answers may be settled (for now) in the states covered by the First, Sixth, and Eighth Circuits, more than 50 lower district courts have weighed in on the debate and you could find fertile ground to help your defense in some of these areas.

Conclusion

The Canady and Vallone decisions provide an important limitation on forum-shopping, preventing non-resident plaintiffs from dragging a corporation into court in an unfavorable venue. However, until the Supreme Court weighs in and settles the debate, the Bristol-Myers defense remains jurisdiction-specific in FLSA collective actions.

Read the original:
Federal Appeals Courts Add to Employers Confusion by Disagreeing on Whether to Dismiss Out-of-State Plaintiffs in FLSA Collective Actions - JD Supra

The congressional inquiry into the Jan. 6 invasion of our capital is getting little or no cooperation from Republican lawmakers. That in itself is unfortunate as violence against our elected officials cannot and should not be tolerated.

Over 100 witnesses have taken the Fifth Amendment in refusing to answer questions which they have every right to do. Of course, former President Donald Trump has claimed there is an inference of guilt to those who plead the Fifth but surely, he exempts those of his followers who are possibly doing so to protect him. To our former president consistency is the hob-nob of virtue.

The investigating committee should consider offering immunity from prosecution to those pleading the Fifth which forces them to answer questions or be prosecuted. After all, Trump has openly said he will pardon them anyway so they would be absolved from fear of jail time i.e., if they testify in Trumps favor.

But by an offer of immunity, the investigators can force open that Pandoras box of silence and find out the truth. Of course, a witness operating under such a waiver must be truthful, as the offer is valid only if a witness tells the truth. Admittedly that by itself may become a problem for some of the more involved witnesses but that is their problem. The committee should act accordingly as its primary purpose is to obtain information not necessarily to jail perpetrators, which is the job of the Department of Justice.

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Our view: Primary goal is to get to the truth of Jan. 6 - Journal Inquirer

Many aspects of the immigration enforcement system were modeled after the criminal justice system and created in response to perceived threats raised by immigrants arriving in the U.S. While immigration enforcement has historically focused on locking certain groups out of the country, in recent decades, attention has turned to punishing immigrants residing in the U.S., particularly as a deterrent measure.

These policies have subjected immigrants to a system that impacts their ability to pursue liberty, happiness, and freedom in the U.S. the crimmigration system. Room for debate exists about the origins and development of crimmigration law. Still, there is wide acknowledgment that the intersection of the two areas of law immigration and criminal law is inextricably bound in todays society.

The U.S. has an imitable history of restricting large groups of immigrants into the country. Historically, Americas disdain for and fear of certain immigrants during war, depression, and disease resulted in the passage of now-illegal exclusionary laws, the internment of Americans and immigrants, and rampant, violent discrimination.

In the 1980s, the U.S. began using the criminal justice system to exclude immigrants based on their criminal background and focused on interior enforcement of immigration laws. As a result, criminal convictions for offenses committed within the U.S. resulted in removals and deportations increased, resulting in more focus on interior enforcement. In a 2013 BYU Law Review article, Creating Crimmigration, author and immigration attorney Csar Cuahtmoc Garca Hernndez wrote:

Crimmigration law, this Article explains, developed in the closing decades of the twentieth century due to a shift in the perception of criminal laws proper place in society combined with a reinvigorated fear of noncitizens that occurred in the aftermath of the civil rights movement. Specifically, in the aftermath of the civil rights movement, overt racism became culturally disdained and facially racist laws impermissible. Derision of people of color, however, did not cease. Instead, it found a new outlet in facially neutral rhetoric and laws penalizing criminal activity. When immigration became a national political concern for the first time since the civil rights era, policymakers turned to criminal law and procedure to do what race had done in earlier generations: sort the desirable newcomers from the undesirable.

Following the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in the mid-1990s, the scope of criminal activity that impacts immigration exploded from drug and violent offenses to include arguably minor crimes like participating in the false preparation of an immigration application. According to Hernndez in his 2021 Crimmigration Law 2nd Edition book citing 2010 Federal Justice Statistics:

Arrests for immigration crimes doubled from 1994 to 1998, doubled again from 1998 to 2004, and yet again from 2004 to 2008[] In 2010 a full 46 percent of individuals arrested and booked by the United States Marshals Service for suspicion of any federal crime found themselves in that predicament because of an immigration offense. Just about all of the increase in federal arrest rates95 percentfrom 1998 to 2018 can be attributed to immigration crime cases.

Given these statistics, one could believe that immigrants commit crimes at disproportionately higher rates than citizens, but it is not the case. As noted in a Cato Institute study published in 2019, With few exceptions, immigrants are less crime-prone than natives or have no effect on crime rates.the research is fairly one-sided. The study concludes, All immigrants have a lower criminal incarceration rate, and there are lower crime rates in the neighborhoods where they live, according to the near-unanimous findings of the peer-reviewed evidence.

There has been an increasing focus on why we see higher incarceration rates for individuals of color and lower socioeconomic status in the U.S. This has ultimately led to the recent passage of incarceration and sentencing reforms in the past several years.

In a new series at the Niskanen Center, we will explore how the criminal justice system overlaps with the immigration system. From initial encounters with immigration enforcement agencies to detention to the need for an independent immigration court system, this series lays out an evidence-based approach to analyze and provide policy solutions to these complex issues.

Similarly, we will explore crimmigration, including the facets that seem at face value antiquated, unfair, and ineffective. The impacts of criminal and immigration law, for instance, both have life-altering impacts on an individuals freedom. Accordingly, the Fourth (search and seizure), Fifth (due process), and Sixth Amendments (right to counsel) are keystones of our criminal justice system. However, in immigration law, Fourth and Fifth Amendment protections are loosely applied at best and the Sixth Amendment has been deemed not to apply to immigration law. The lack of these protections becomes increasingly poignant given the murky nature and complexity of immigration law.

Look for commentaries this year addressing:

Photo credit: iStock

More:
The Legal Snarls Between Criminal & Immigration Law: Tackling Crimmigration in the 21st Century - Niskanen Center

On Dec. 15, 2021, the Supreme Court agreed to review Torres v. Texas Department of Public Safety. The case is a rare instance in which the court will confront the scope of Congresss constitutional war powers. The central question in Torres is whether Congress may authorize private citizens to sue nonconsenting state governments under its constitutional war powers. This is controversial because of state sovereign immunity, a long-standing doctrine that, subject to certain exceptions, generally prohibits private citizens from suing state governments. Specifically, Torres involves provisions of the Uniformed Services Employment and Reemployment Rights Act (USERRA) that authorize service members to sue their employers (including state government employers) for damages relating to employment discrimination. Notably, the Torres decision will not only determine if protections are available to hundreds of thousands of veterans against employment discrimination but also could have broader ramifications for the war powers doctrine and/or the state sovereign immunity doctrine.

Texas State Trooper Le Roy Torress path to the Supreme Court began with the Texas Department of Public Safetys alleged employment discrimination against him. During his Army tour in Iraq, Torres suffered serious lung damage from exposure to burn pits. Following his service, Torres sought reemployment at the department. Because his lung damage (later diagnosed as constructive bronchitis) prevented him from being reemployed in his former position, he requested a different assignment within the department. However, the department denied his request, offering him only a temporary position that effectively forced him to resign.

In 2017, Torres sued the Department of Public Safety in Texas state court under the USERRA. Texas challenged USERRAs authorization of private suits as unconstitutional because of state sovereign immunity. A Texas state intermediate appellate court agreed and dismissed the case under state sovereign immunity, holding that the suit was barred because Congress may not repeal state sovereign immunity pursuant to its Article I legislative powers. This holding was consistent with the outcome in seven other state courts.

In 2020, after the Texas Supreme Court denied review, Torres petitioned the U.S. Supreme Court. In March 2021, the court invited the U.S. solicitor general to file a brief expressing the United States view on whether to grant cert. In November, Solicitor General Elizabeth Prelogar filed a brief disagreeing with the Texas state court, arguing that USERRAs provisions were constitutional and Texas could not claim state sovereign immunity. However, she recommended against granting cert, claiming that the Courts review would be premature. Despite that recommendation, the court will now hear the case.

Background on USERRA

USERRA was intended to protect veterans from employment discrimination. In 1994, Congress passed the modern version of USERRA pursuant to its enumerated Article I, Section 8, legislative powers to raise and support Armies and provide and maintain a Navy. Thus, Torres concerns whether one of the recognized exceptions to state sovereign immunity applies to the war powers used to pass USERRA. USERRA is the culmination of decades of legislation aimed at preventing employment discrimination against veterans. USERRA declares that its purpose is to encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service. As a House Reportt explained, Congress saw USERRA as part of a national policy to encourage [U.S. military] service. Following the Vietnam War, in 1974, Congress greatly expanded existing employment discrimination protections by, for the first time, authorizing service members to sue discriminating employers. The modern version of USERRA, passed in 1994 following the Gulf War, provides the right to take military leave from civilian employment while ensuring prompt reemployment on return, freedom from discrimination owing to military service, and rights to have employers make reasonable efforts to accommodate disabilities incurred during military service.

State Sovereign Immunity

A long-standing principle of constitutional law is that states and state agencies have immunity from private lawsuits. However, the Supreme Court has announced two exceptions to this general ban, each of which applies to certain constitutional provisions. First, the court upheld Congresss ability to abrogate state sovereign immunity under certain congressional constitutional powers. Second, Congress can authorize suits if a state has explicitly consented to waive sovereign immunity. Notably, the court has held that certain constitutional provisions contain an implicit waiver that states consented to at the Founding.

The Supreme Court has limited the first exception (abrogation) to congressional action under Section 5 of the 14th Amendment, which authorizes Congress to enforce the Constitutions core civil rights provisions. In Fitzpatrick v. Bitzer (1976), the court upheld Congresss authorization of suits against states for employment discrimination based on race, color, religion, sex and national origin. By contrast, the court sharply limited Congresss power to abrogate state sovereign immunity under Article I legislative powers in Seminole Tribe of Florida v. Florida (1996). That case concerned the Indian Gaming Regulatory Acts provisions permitting private suits against states, passed pursuant to the Commerce Clause. In a 5-4 decision that was issued over the courts liberal justices strident dissents, the court declared that Congress cannot abrogate state sovereign immunity pursuant to its Article I powers. With almost all of Congresss legislative powers contained in Article I (commerce, taxing, spending, war powers, patent-granting power, etc.), this represented a dramatic limitation. In reaction to Seminole Tribe, Congress amended USERRA in 1998 to authorize employment discrimination suits in state court, rather than federal court to evade state sovereign immunity. Nonetheless, the court subsequently extended the ban on abrogation to cover state, as well as federal, court in Alden v. Maine (1999), setting the stage for this case. Because of the courts consistent rejection of Article I abrogation, the exception appears unlikely to aid the plaintiffs in Torres.

Despite the courts check on Article I abrogation, the court has found that Congresss Article I power to establish uniform Laws on the subject of Bankruptcies throughout the United States satisfied the second exception to state sovereign immunity: when a state consents. In a narrow 5-4 decision, Central Virginia Community College v. Katz (2006), the court ruled that states consented to private debtor suits against state agency creditors. Though the state of Virginia never explicitly consented to suit, the ruling expressed that the states implicitly consented in the plan of the [Constitutional] Convention not to assert [sovereign] immunity (emphasis added) regarding private bankruptcy suits.

The court asserted that the Bankruptcy Clause was unique among Article I powers. The majority opinion noted:

The history of the Bankruptcy Clause, the reasons it was inserted in the Constitution, and the legislation both proposed and enacted under its auspices immediately following ratification demonstrate that it was intended to authorize limited subordination of state sovereign immunity in the bankruptcy arena.

Fair bankruptcy proceedings require the court to have power over a debtors entire property and its distribution to all creditors. If state creditors alone were immune from suit, the bankruptcy process would be unfair. In other words, the court determined that the states ratifying the Constitution recognized that the bankruptcy power entailed the necessary ancillary ability to authorize private bankruptcy suits against states. Subsequently, in Allen v. Cooper (2020), the court affirmed that Katz was limited to the Bankruptcy Clause; the opinion reflects what might be called bankruptcy exceptionalism and did not apply to any other Article I powers.

The courts recent opinion in PennEast Pipeline Co. v. New Jersey (2021) suggests that other Article I powers, including war powers, might be entitled to the same plan of the Convention analysis as bankruptcy in Katz. In PennEast, the court upheld Congresss authorization of suits against states under Congresss eminent domain power. The eminent domain power is not enumerated in Article I; rather, the court saw it as inherent in the Fifth Amendment Takings Clauses bar on government takings of private property for public use, without just compensation. The court reasoned that the states consent to suit by private citizens in congressionally authorized eminent domain proceedings was inherent in the structure of the original Constitution itself that the states had agreed to.

Although the PennEast court asserted that it was not addressing Article I powers, PennEast nonetheless raises the question of whether Congress can authorize suits against states under any non-bankruptcy Article I powers under a plan of the Convention consent theory. In her dissent, Justice Amy Coney Barrett noted that the Fifth Amendment does not provide an independent eminent domain power that could authorize the Natural Gas Act statute at issuethe Fifth Amendment merely limits government power. As Barrett explained, Congress authorized suits in the Natural Gas Act pursuant to its power to make all Laws which shall be necessary and proper for carrying into Execution its other powers. Thus, PennEast arguably concerns a non-bankruptcy Article I power, suggesting Katzs reasoning may not be limited solely to bankruptcy.

Legal Issues in Torres

The central issue that the court will confront in Torres is whether war powers should get the same exceptional treatment the court gave bankruptcy in Katz. Based on the briefing from Torres, Texas, and their amici, there are at least three reasons why war powers are unique. The court will consider whether any of these features of congressional war powers indicate state consent to suit at the Founding.

Exclusive Federal Power

The Constitution not only grants war powers to Congress but also explicitly removes war powers from the states sovereign prerogatives. The Constitution bars states from engag[ing] in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Torres claims that this federal grant and state removal echoes Alexander Hamiltons claim in Federalist #32 that, by ratifying the Constitution, states consented to alienat[e] state sovereignty over sovereign powers that the Constitution grant[s] in one instance to the Union, and in another prohibited the States from exercising [them]. According to this argument, by entering a union in which the federal government had exclusive control over the military, and the states were restricted from exercising military power, states implicitly waived all aspects of their sovereignty over military matters. However, as Texas argues in its brief, [s]overeignty is not an all-or-nothing concept. In other words, the waiver of sovereign powers to raise and support a military does not necessarily entail the waiver of all aspects of sovereignty, including immunity from suits. Did states know that because they surrendered their right to maintain a military, they also surrendered their right to state sovereign immunity for military-related matters?

The Expansiveness of Federal Military Power

Congressional war powers are recognized as expansive. The Constitution was originally understood to give Congress far-reaching, plenary authority over war. In the Federalist Papers, Alexander Hamilton asserted that congressional war powers can have no limitation, and Madison claimed that Congress has INDEFINITE POWER of raising TROOPS in PEACE [and] in war. The Supreme Court similarly has a long tradition of reading Congresss war powers very expansively, memorably declaring in 1934, the war power of the federal government ... is [the] power to wage war successfully, suggesting congressional war powers are virtually limitless. The court has also long granted congressional war powers legislation great deference regarding its constitutionality. Indeed, the court asserted that when Congress passes raise and support Armies legislation, judicial deference is at its apogee.

Does the expansiveness of Congresss war powers suggest that the states consented to waive their immunity when Congress exercises those powers? It could be argued that by entering a union in which Congress had near plenary power, states implicitly consented to noninterference with congressional war powers. However, the court has never found that sovereign immunity was waived simply because a congressional power is expansive.

The Constitution and State Impediments to Federal Military Power

Another argument for states consent at the Founding is that the Constitution was understood as necessary to overcome the inconveniences associated with the Articles of Confederations state-by-state military requisition system. During and after the Revolutionary War, American leaders were frequently frustrated by states hindering efforts to raise and support the military by refusing to provide either needed funds or manpower. The Supreme Court has repeatedly relied on this original understanding to hold that the Constitution bars state interference. The court long ago stressed that [n]o interference with the execution of this power of the National government in the formation, organization, and government of its armies by any State officials could be permitted. The court has rejected state restrictions on national conscription or the use of congressionally deployed National Guard troops and held that federal wartime price controls bound states, as well as private businesses, because otherwise states could impede the federal war effort. The court is particularly hostile to states hampering the war effort by burdening U.S. service members. For example, the Court upheld 2 acts of Congressone which barred states from taxing service members based solely on the location of their military assignment and the other which prohibited Texas from barring service members who moved to Texas from voting.

Given this history, the court will have to grapple with the question of whether state assertions of sovereign immunity to prevent USERRA suits constitute a similar type of impermissible interference with federal military efforts. The amicus brief from the Reserve Organization of Americaa Reservists and National Guardsmen advocacy organizationstresses USERRAs role boost[ing] the recruitment, retention, and morale of noncareer servicemembers. USERRAs legislative history indicates Congresss belief that preventing employment discrimination against service members was essential to American warfighting ability. As a House committee report explained, Congress sought to ensure the policy of maintaining a strong national defense is not inadvertently frustrated by States refusing to grant employees the rights afforded to them by USERRA. However, USERRAs anti-discrimination provision arguably relates only indirectly to efforts to raise and support Armies or provide and maintain a Navy. Indeed, Congress never once explicitly references specific constitutional War Powers Clauses. More generally, there remains a larger question as to whether the assertion of a traditional state right to prevent private civilians suing a state is comparable to states deliberately interfering with a national war effort.

PennEast

PennEast, issued after all the briefs besides the solicitor generals were already filed, will likely feature prominently in the courts opinion and offers support to both sides. On the one hand, PennEast seems to favor Torres, as it suggests the plan of the Convention theory extends beyond bankruptcy alone. The eminent domain power is far less extensive than war powers and not exclusive, so if states consented to waive sovereign immunity under the eminent domain power, they arguably did so for the war powers. Moreover, because (as discussed above), PennEast appears to permit authorizations of suits under Congresss Article I Necessary and Proper Clause, suggesting bankruptcy is not necessarily unique. On the other hand, both bankruptcy and eminent domain have at least one feature distinguishable from war powers: They both require court proceedings. In Katz, the court noted that it would be absurd if states, alone among actors in the bankruptcy litigation process, were immune from suit. Similarly, eminent domain involves condemnation proceedings and, therefore, could be directly impeded by state sovereign immunity. By contrast, litigation is not a necessary complement to Congresss war powers. It is less obvious that states accepted that they were waiving their sovereign immunity through the War Powers Clauses, even if they did recognize the expansiveness and exclusivity of the war powers.

Looking Ahead

The Supreme Court will hear oral arguments in Torres by April and will issue a decision by June or July. If the court reaches the merits of the case, it might rule for Torres for several reasons. The court granted cert even without a split among lower courtsthe situation most frequently yielding cert grants and despite the government (on the Supreme Courts request) filing an amicus brief recommending against cert. Moreover, as a distinguished veteran injured in combat alleging employment discrimination, Torres is sympathetic. Finally, conservative justicestraditionally supportive of state sovereign immunityare also traditionally the most supportive of expansive war powers, suggesting Torres may appeal to justices across the ideological spectrum.

The case could have a substantial impact on Torres himself and hundreds of thousands of active and reserve service members across the country currently working for state government agencies.

But it may have important legal implications beyond the specific facts involved in at least three areas of law. First, the case could have implications for the courts state sovereign immunity jurisprudence generally. If the court rules for Torres, and recognizes a second Article I exception, it will likely encourage future litigation to determine if other Article I powers permit Congress to authorize suits against states. Second, a ruling for Torres might encourage Congress to try to evade state sovereign immunity in other statutes by trying to tie them to war powers. For example, Congress might try to authorize suits against states in a commercial regulation statute under the theory that a provision authorizing the suit was somehow necessary to raise and support Armies, not just to regulate commerce. Third, and finally, the court may give its first major statement on the scope of congressional war powers in 16 years. This decision could have important implications for other war powers/federalism-related issues raised this past year, such as states use of their National Guard troops for federal purposes and recent states efforts to resist President Bidens vaccine mandate for their National Guard units.

Read more from the original source:
War Powers and State Sovereign Immunity in Torres v. Texas Dep't of Public Safety - Lawfare

Lyndsey Grace Bronston, the final defendant in the 2018 drive-by shooting that killed Brentwood resident Clark Cable, entered into a plea deal with prosecutors on Monday.

She plead guilty to second degree murder and was sentenced to an effective 25 years in a state prison.

In September 2021, Bronstons co-defendant, Dustin William Russell, was sentenced to 30 years in prison for firing the deadly shots following his conviction of second degree murder and four counts of reckless endangerment in a July 2021 trial.

Bronston briefly appeared in court at the start of Russells trial, where she invoked her Fifth Amendment right against self-incrimination, which ended her participation in his criminal proceedings.

The couple were both initially charged with one count of first degree murder, conspiracy to commit first degree murder, reckless endangerment discharging a firearm into an occupied habitation and three counts of reckless endangerment with a deadly weapon, while Bronston was also charged with one count of tampering with evidence.

As part of the deal, Bronston pleaded guilty to the amended charge of second degree murder, one count of reckless endangerment discharging a firearm into an occupied habitation and three counts of reckless endangerment with a deadly weapon.

Lyndsey Grace Bronston in 2019.

She was sentenced to 20 years in prison for the murder charge and 5 years in prison for the charge of reckless endangerment discharging a firearm into an occupied habitation, which run consecutively. She received two years in prison for the counts of reckless endangerment with a deadly weapon, which runs concurrently with the first two counts.

Bronston will also receive jail credit for the some three years shes been incarcerated since her arrest.

Assistant District Attorney Kelly Lawrence, who prosecuted both Bronston and Russells cases, said in a phone call that the years-long process was emotional for both Cables family and those investigating and prosecuting the case, which saw significant delays due to the ongoing COVID-19 pandemic.

Theres no sentence within the law that is ever going to comfort the family or [show] that justice has been done because they lost their son, so nothing that we do on our end or what the judge can do is ever going to make that right or make them whole, but with respecting the jurys verdict in Mr. Russells case, the sentence that LyndseyBronston received was commensurate with that, Lawrence said.

Lawrence said that the case was an unusual crime and set of circumstances to occur in Brentwood, especially as the case dealt with the apparent confusion by Bronston and Russell as to who Cable was or wasn't.

As brought up in the trial, Bronston had been a sex worker for around six months working between Nashville, Tullahoma and Atlanta, and at some point she began to become fearful of a Black man from Memphis she called Joe Jones.

Assistant District AttorneyKelly Lawrence gives the state's closing argument to the jury on July 29, 2021, during the murder trial of Dustin Russell. The victim, Clark Cable, can be seen on the court's television screen in a family photo.

That fear and seeming paranoia also included mentions of gangs in Memphis and bad cops along with a specific concern that she was in danger of becoming the victim of sex trafficking.

These concerns came with a text and phone call exchange between Bronston and Cable, where she asked a confused Cable, Who the f**k you sent to me and what they were planning."

These came before Cablereceived texts from Bronstons phone with details of Cables family and threats to their safety.

Later that night Cable opened up to his mother about the confusing communications and interactions with Bronston, but minutes later the home was attacked with a barrage of bullets, one of which killed Clark Cable on the night of his 25th birthday.

The couple fled the state soon after and were arrested in Arizona on Dec. 13, 2018.

It would almost be unbelievable had we not seen the searches that were brought up and the things that she was searching for, Lawrence said.

For this to just kind of happen I think startled the whole community, Lawrence said. Especially the family, they were totally taken aback by this.

Dustin Russell addresses and apologizes to the family of Clark Cable during his sentencing hearing on Sept. 27, 2021, where he was sentenced to 30 years in prison for murdering Cable in Brentwood in 2018. Russell'sdefense attorney Eric Larsen stands behind him.

Bronston did not address the court during the plea hearing, and while the hearing was attended by Cables family, they chose not to issue a victim impact statement, having previously issued passionate and emotional testimonies during both Russells trial and sentencing hearing last year.

Bronston was represented in court by Public Defender Greg Burlison, while Russell was represented in his case by attorney Eric Larsen.

Larsen argued in Russells trial that Russell was convinced that someone was attempting to traffick Bronston and that Russell had fired at the Cables home in an attempt to protect her from the perceived threat.

This case is a tragedy for all involved, Burlison said in an email. No resolution will replace what the Cable family has lost. Ms. Bronston is extremely remorseful for her role in this senseless death. She is grateful for the agreement reached that allows her to take responsibility for her actions while giving due consideration to the mitigating circumstances present in this case.

Brentwood Police Department Assistant Chief of Police Richard Hickey said in an email that BPD is pleased that both cases have come to a close with convictions, noting the hard work of BPD detectives who quickly honed in on Bronston and Russell as the suspects.

It gives us some closure, but more importantly, we hope it gives the family closure, Hickey said. Are we happy? We cant be happy when a young man lost his life in such a senseless act. We cant bring him back to life. But if the family has some measure of justice, then we did our job of making sure someone was held accountable. We dont always succeed, but this is our goal for every person who has been a victim of crime.

See more here:
Lyndsey Bronston pleads guilty in 2018 fatal Brentwood drive-by shooting, sentenced to 25 years in prison - Williamson Home Page

In 1984, the Supreme Court ruled unanimously that courts must defer to an administrative agencys reasonable interpretation of an ambiguous statute. But last year, the Supreme Court stripped the FTC of its ability to seek equitable monetary remedies such as disgorgement or restitution. And a couple weeks ago, the Supreme Court dismantled the Occupational Safety and Health Administrations (OSHA) vaccine mandate, with Justice Gorsuch writing that the decision prevents OSHA from becoming a roving commission to inquire into evils and upon discovery correct them. The Supreme Court may be positioning itself to say something similar about the FTC.

On January 24, 2022, the U.S. Supreme Court agreed to hear a case challenging the constitutionality of the FTCs administrative review scheme. The case is brought by Axon Enterprise Inc., a taser manufacturer, which sells stun guns, body-worn cameras and other equipment used by police. Although the Supreme Court only took up the jurisdictional issue whether district courts can review constitutional challenges to the FTCs structure without waiting for agency proceedings to play out this case could have far reaching implications for the administrative adjudicatory process across government agencies if the Court sides with Axon.

The case arises out of Axons efforts to acquire a competitor, which the FTC believed would severely limit competition in violation of the FTC Act and antitrust laws. Facing an administrative enforcement proceeding to challenge the acquisition, Axon sued in federal court to halt the FTC proceeding and seeking a declaratory judgment that the merger was legal. Axon argued, among other things, that the administrative proceedings violated its Fifth Amendment due process rights because the FTC was effectively acting as the prosecutor, judge, and jury and that it was entitled to a district court trial. Axon also argued that the restrictions on the removal of FTC administrative law judges ran afoul of the Constitutions separation-of-power principles.

The District Court for the District of Arizona dismissed Axons complaint for lack of subject matter jurisdiction, holding that under the FTC Act, Axon must first raise its constitutional challenges in an administrative proceeding.Axon Enter. Inc. v. FTC. The U.S. Court of Appeals for the Ninth Circuit, in a split panel decision, upheld the lower courts dismissal.Axon Enter. Inc. v. FTC.

The Ninth Circuit panel found itself bound to Supreme Court precedent, the application of which necessitated an interpretation of the FTC Act that impliedly precluded district court jurisdiction over claims of the type brought by Axon.Id.at 1178.

Furthermore, the Ninth Circuit found that because the FTC statutory scheme allowed Axon to present its constitutional challenges to a federal court of appeals after the conclusion of the administrative proceeding, Axon did not suffer any cognizable harm. However, the panel noted that Axon raised legitimate questions about whether the FTC has stacked the deck in its favor in its administrative proceedings, noting that the FTC has not lost a single case in the past quarter-century.Id.at 1187. The full Ninth Circuit refused to reconsider the lawsuit, once again affirming the lower courts finding that Axon must submit to the administrative proceeding.

Not giving up, Axonpetitionedthe Supreme Court to revive its case and answer (1) whether the district court has the power to review constitutional challenges to the FTCs structure before the agency issues a final administrative order, and (2) whether the FTCs structure, including the for-cause removal protections afforded administrative law judges, violates the Constitution. The justices agreed to take up Axons first question, but declined to consider the second.

What may have ultimately persuaded the Supreme Court to grant cert on Axons first question was the recent decision by the Fifth Circuit inCochran v. SEC.InCochran, the Fifth Circuit held that an accountant could proceed with her lawsuit in federal district court challenging the constitutionality of the SEC administrative law judge system without waiting for a final determination in the SEC proceeding against her. Axon filed asupplemental briefarguing that this decision was in direct conflict with the Ninth Circuits decision in its case (as well as decisions from other circuits) on the critically important question of whether district courts may hear constitutional challenges to an agencys structure or existence, and thus created a circuit split which the Supreme Court must resolve.

By taking up this case, the Supreme Court granted itself the opportunity to weaken the FTCs authority to adjudicate potential antitrust violations and enforce agency action. If the Supreme Court rules in favor of Axon, it would enable the federal district courts to reevaluate the legitimacy of the FTCs administrative review system, as well as those of other administrative agencies. Under the current system, the federal appeals courts already have jurisdiction to hear such challenges. However, granting district courts the jurisdiction to hear these challenges as well, especially if they need not give deference to an FTC decision, increases the likelihood that these challenges succeed.

The FTCs administrative review process is crucial to its ability to reshape the antitrust landscape, and in particular, its efforts to move away from a consumer welfare standard, which is entrenched in federal antitrust jurisprudence. Should its ability to use this process be eroded, the FTC may find it harder to implement some of the sweeping changes it has promised. Also, from a logistical standpoint, if the FTC is forced to defend itself against an increasing number of constitutional challenges, it will have fewer resources to devote to scrutinizing the current swell of mergers and acquisitions.

We now wait and see how the Supreme Court decides this case, and whether it will continue its recent apparent receptiveness to arguments that limit the scope of agencies implied authority.

2022 Proskauer Rose LLP. National Law Review, Volume XII, Number 38

Read more here:
Supreme Courts Decision to Hear Challenge to FTC Administrative Review - The National Law Review

OPINION:

Congressional investigations dont often evolve into criminal cases, especially when misdemeanor contempt charges are concerned. In fact, former high-ranking Justice Department officials from its Office of Legal Policy have testified that the contempt of Congress statute does not apply to executive officials asserting executive privilege.

But in cases where Jan. 6 and Stephen K. Bannon are concerned, the Department of Justice seems to be making a rare exception. If the departments own guidelines and internal rulings mean anything, it is an exception that could damage the departments integrity and create a dangerous chilling effect within the criminal court system.

Last week, news broke that federal prosecutors in the U.S. Attorneys Office for the District of Columbia got a court order in November to obtain the phone and email records of Robert J. Costello, an attorney representing Mr. Bannon, who is fighting two misdemeanor charges for not complying with a subpoena from the House Select Committee on the January 6 Attack. There are reportedly three federal prosecutors and four FBI agents assigned to the matter.

Prosecutors justified the act by insisting the move was not an attempt to breach attorney-client communications, but rather because Mr. Costellos appearance before the Jan. 6 committee on behalf of Mr. Bannon, made him fair game as a witness. This rationale is questionable however since another of Mr. Bannons attorneys, Adam Katz, who did not appear before the committee is also considered a witness.

More concerning, however, is the fact that the DOJs own guideline, 9-13.410, which touches upon issuing subpoenas related to the representation of their clients requires approval from the assistant or deputy attorney general of the criminal division at the main component of the Justice Department.

This suggests that if the subpoena was related to Mr. Bannons case, someone high up possibly even a Biden political appointee would have approved the decision. If they did not, it could mean a career prosecutor disregarded DOJ guidelines.

According to a 28-page Feb. 4 filing by Mr. Bannons legal team, one federal prosecutor told them, the Government has not taken any steps to obtain any attorney work product relating to any attorneys representation of Mr. Bannon or to obtain any confidential [attorney client] communications Federal prosecutors may sincerely believe this since the records obtained were reportedly not actual substantive content or attorney client communications, but we disagree.

The effect of the governments move creates an unfair advantage by providing prosecutors a rare glimpse into an otherwise secret realm that typically only exists between an attorney and their client. By reviewing Mr. Costellos phone and email logs, the Justice Department now knows who Mr. Bannons lawyer contacted after otherwise protected client communications took place, including potential witnesses who the prosecution can now interview, subpoena or target.

This type of information would otherwise be protected under the attorney-client privilege or work-product privilege, as it is considered a confidential under D.C. Bar Rule 1.6. Confidential material is so broad that it often includes attorney-client fee agreements and billing statements.

For avoidance of doubt, Rule 1.6 in the District of Columbia is arguably broader than other jurisdictions since it not only prohibits attorneys from revealing confidences with clients, but also their secrets. The Bar broadly defines secrets as other information gained in the professional relationship the disclosure of which would be embarrassing or likely to be detrimental, to the client. In other words, just about anything and everything.

Attorneys are also prohibited from contacting opposing parties without communicating through their legal representative. In criminal cases, this covenant falls under the Fifth Amendment. The purpose of this rule and the aforementioned are to ensure the sanctity of confidentiality and secrecy between a lawyer and their client without intrusion from the government. It creates a protected zone for a defendant facing criminal charges so the government cannot get into their head in the Orwellian fashion of the Thought Police.

The ultimate result of DOJs recent rare hardball tactics is a chilling effect in which defendants have to fear prosecutors seeking creative workarounds to the Constitution, and legal clients need to fear a flagrant lack of respect for the spirit of the rules of confidentiality enshrined in the Bar. This is most likely why the Justice Department created 9-13.410, as a guideline, so its own prosecutors do not cross this sacred line in a rogue capacity.

For the moment, it appears someone in DOJ felt crossing such a line for a misdemeanor case against one embattled journalist was worth the long-term reputational damage it could cause to DOJ. Perhaps over time, evidence will surface to justify the departments decision and demonstrate that the risk was well worth the potential cost.

For now, the appearance of overreach is troubling and should raise concerns with any lawyer, defendant or American who cherishes their civil rights.

Read more:
EDITORIAL: Is Steve Bannon giving DOJ all the rope it needs? - Washington Times