What’s Next for the Supreme Court’s Transgender Bathroom Case?

The case revolves around the interpretation of a federal regulation that bans discrimination “on the basis of sex” in schools that receive federal money. The legal question is whether it can also ban discrimination based on gender identity.

hear oral argument in the case next month, if not before. (Getty Images)

Although the Supreme Court will hear oral arguments in the case next month, if not before, the Trump administration’s reversal of a rule on transgender students’ rights could potentially remove the case from the Court’s docket. (Getty Images)

The fate of the most controversial case the Supreme Court has agreed to decide this term is uncertain now that the Department of Education (DOE) has issued a “Dear Colleague” letter withdrawing a previous letter requiring school districts to allow transgender students to use the bathroom consistent with their gender identity.

Title IX prohibits school districts that receive federal funds from discriminating “on the basis of sex.” A Title IX regulation states that, if school districts maintain separate bathrooms (locker rooms, showers, etc.) “on the basis of sex,” they must provide comparable facilities for the other sex. In a 2015 letter DOE interpreted the Title IX regulation to mean that, if schools provide for separate boys’ and girls’ bathrooms, transgender students must be allowed to use the bathroom consistent with their gender identity. The new “Dear Colleague” letter takes no position on whether the term “sex” in Title IX includes gender identity.

The Supreme Court has agreed to decide two questions in Gloucester County School Board v. G.G.  First, should it defer to DOE’s letter interpreting the regulation? Second, putting the letter aside, should the Title IX regulation be interpreted as DOE suggests?

G.G. is biologically female but identifies as a male. The Gloucester County School Board prevented him from using the boy’s bathroom. He sued the district, arguing that it discriminated against him in violation of Title IX. The Fourth Circuit Court ruled in favor of G.G, giving Auer deference to DOE’s letter.

Per Auer v. Robbins (1997), a court generally must defer to an agency’s interpretation of its ambiguous regulations. According to the Fourth Circuit, the Title IX regulation is ambiguous because it is “susceptible to more than one plausible reading because it permits both the Board’s reading (determining maleness or femaleness with reference exclusively to genitalia) and the Department’s interpretation (determining maleness or femaleness with reference to gender identity).”

Despite the 2015 letter being rescinded, both parties still want the Supreme Court to decide this case. On SCOTUSblog, Amy Howe describes some of the Court’s options: “Among other things, they could send the case back to the Fourth Circuit for it to weigh in more fully on the Title IX question in light of the government’s changed position, or they could forge ahead and rule on that question themselves. At the very least, we should know more about the justices’ inclinations when they hear oral arguments in the case next month, if not before.”

Putting aside the factual context of this case, state and local governments, acting through the State and Local Legal Center, have criticized Auer deference in Supreme Court amicus briefs. The Gloucester County School Board asked the Supreme Court to decide whether to overturn Auer, but the Court refused to consider this question.

Two states – Tennessee and Arkansas – have passed laws that preempt local non-discrimination provisions.

“Preemption efforts – where state law nullifies a municipal ordinance or authority – lead to a loss of local control and can have far-reaching economic and social impacts in our communities,” said National League of Cities (NLC) CEO and Executive Director Clarence E. Anthony. NLC’s latest report, City Rights in an Era of Preemption, examines the prevalence of state preemption across the country.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. She is a regular contributor to CitiesSpeak.

Supreme Court Midterm Review for Local Governments 2017

The Supreme Court’s 2016-2017 docket is now set – and a number of cases will directly impact local governments.

photo - Supreme Court in Spring with Fountain

The Court may decide to rehear tied (4-4) cases next term, when a new Justice will presumably join the bench. (Getty Images)

This article covers cases of interest to local governments which the Court accepted after September 15, 2016 and agreed to hear this term. (Here is a summary of cases of interest to local governments which the Court agreed to hear before September 15, 2016.) The Court is still down a Justice, but has accepted as many cases as usual (about 75) on its 2016-2017 docket. In theory, all the cases discussed below will be decided by June 30, 2017.

The Supreme Court’s decision from this term most likely to receive significant media attention involves a transgender student who wants to use the bathroom consistent with his gender identity. However, Gloucester County School Board v. G.G. will not directly affect local governments.

Provocation

In Los Angeles County v. Mendez,* the Supreme Court must decide whether to accept or reject the Ninth Circuit’s “provocation” rule. Per this rule, “where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation, he may be held liable for his otherwise defensive use of deadly force.”

It is undisputed that police officers used reasonable force when they shot Angel Mendez. As officers entered, unannounced, the shack where Mendez was living they saw a silhouette of Mendez pointing what looked like a rifle at them. Yet the Ninth Circuit awarded him and his wife damages because the officers didn’t have a warrant to search the shack, thereby “provoking” Mendez.

The Mendezes also argue that, putting the provocation theory aside, the officers are liable in this case because their unconstitutional entry “proximately caused” them to shoot Mendez. Many Americans own guns, so the Court argued it is reasonably foreseeable that, if officers barge into a shack unannounced, the person in the shack may be holding a gun.

Qualified Immunity

United States Border Patrol Agent Jesus Mesa, Jr., shot and killed Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national, who was standing on the Mexico side of the U.S.-Mexico border. At the time of the shooting, Agent Mesa didn’t know that Hernandez was a Mexican citizen.

One question in Mesa v. Hernandez is whether qualified immunity may be granted or denied based on facts unknown to the officer at the time of the incident, such as the victim’s legal status. The Fifth Circuit granted Agent Mesa qualified immunity based on the fact that Hernandez was a Mexican citizen even though Agent Mesa didn’t know that at the time of the shooting.

Given the rapid pace of police work, it is not unusual for officers to learn a variety of information after they have used force, which supports their qualified immunity claim (i.e. the person they shot had a gun, had threatened another officer or citizen, etc.). Considering this kind of after-the-fact information in the qualified immunity analysis would be favorable to officers.

But the question in this case is whether qualified immunity may be granted or denied based on facts discovered later. In some cases, officers may learn after-the-fact information that undermines their claim for qualified immunity (i.e. the person they shot stated he had a weapon but did not, had been mistakenly perceived to have threatened another officer or citizen, etc.). Considering this kind of after-the-fact information in the qualified immunity analysis would be unfavorable to officers.

Free Speech

During the fall, the Supreme Court accepted three First Amendment free speech cases. This is not good news for local governments, as the Supreme Court routinely and sometimes unanimously votes against states and local governments in First Amendment free speech cases.

Packingham v. North Carolina* is probably the First Amendment case of most interest to local governments as the Supreme Court is likely to discuss whether the statute at issue in the case is content-based or content-neutral.

The issue in this case is whether a North Carolina law prohibiting registered sex offenders from accessing commercial social networking websites, where the registered sex offender knows minors can create or maintain a profile, violates the First Amendment.

Lester Packingham was charged with violating the North Carolina statute because he accessed Facebook. In the posting that got him in trouble, Packingham thanked God for the dismissal of a ticket.

If a statute limits speech based on content, it is subject to strict (nearly always fatal) scrutiny. In Reed v. Town of Gilbert, Arizona (2015), the Supreme Court held that the definition of content-based is very broad.

The North Carolina Supreme Court concluded that the statute is a “content-neutral” regulation because it “imposed a ban on accessing certain defined commercial social networking websites without regard to any content or message conveyed on those sites.”

Waters of the U.S.

The Supreme Court has agreed to decide whether federal courts of appeals versus federal district courts have the authority to rule whether the “Waters of the United States” (WOTUS) regulations are lawful in National Association of Manufacturers v. Department of Defense.

Per the Clean Water Act, a number of decisions by the Environmental Protection Agency (EPA) Administrator must be heard directly in federal courts of appeals, including agency actions “in issuing or denying any permit.”

A definitional regulation like the WOTUS regulation does not involve the issuing or denying of a permit. Nevertheless, the Sixth Circuit Court of Appeals concluded that it has jurisdiction to decide whether the WOTUS regulations are lawful.

Judge McKeague, writing for the court, relied on a 2009 Sixth Circuit decision National Cotton Council v. EPA, holding that this provision encompasses “not only… actions issuing or denying particular permits, but also… regulations governing the issuance of permits.” The definition of WOTUS impacts permitting requirements.

…and more

The work of the Supreme Court never ends. The Court has already accepted one case for next term involving a local government. In District of Columbia v. Wesby, the Supreme Court will decide whether, when the owner of a vacant house informs police he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects’ claims of an innocent mental state.

*Indicates a case where the SLLC has filed or will file an amicus brief.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. She is a regular contributor to CitiesSpeak.

What’s Next for President Trump’s Travel Ban

The executive order on refugees has had a significant impact on America’s cities – but it could also be an indicator of how the president’s executive orders will generally be interpreted throughout the legal system moving forward.

(Getty Images)

Litigation will likely continue regarding President Trump’s travel ban, which prohibits refugees and other visitors from predominantly Muslim countries from entering the United States. (Getty Images)

On February 9, the Ninth Circuit Court refused to stay a district court’s temporary restraining order disallowing President Donald Trump’s travel ban from going into effect. The executive order prevents people from seven predominately Muslim countries from entering the United States for 90 days.

The states of Washington and Minnesota sued President Trump, claiming their public universities are harmed because students and faculty of the affected countries cannot travel for research, academic collaboration, or personal reasons. A wide swath of people are affected by this executive order, including refugees, legal residents, and visa holders who may have different rights and legal claims based on their status.

The government argued that the president has “unreviewable authority to suspend admissions of any class of aliens.” The Ninth Circuit disagreed, stating “there is no precedent to support this claimed unreviewablity, which runs contrary to the fundamental structure of our constitutional democracy.”

The Ninth Circuit agreed with the district court that the states are likely to succeed on the merits of their claim that the executive order violates the due process rights of lawful permanent residents, non-immigrant visa holders, and refugees. More specifically, the executive order provides no notice and hearing before restricting a person’s right to travel and “contravenes the procedures provided by federal statute for refugees seeking asylum.”

Technically speaking, no court has yet ruled on the merits of this case – instead, the courts have only temporarily prevented the executive order from going into effect based on their view that the government is likely to ultimately lose. The purpose of a temporary restraining order is to stop a likely unlawful activity until a full briefing can occur to determine if unlawful activity is in fact occurring.

In response to the temporary restraining order, the president Tweeted, “SEE YOU IN COURT.” We have every reason to believe the litigation in this case will continue, so what are the president’s options?

A run-of-the-mill case would now go back to the district court where the legal issues would be fully briefed. The district court would then issue an opinion determining definitively whether the executive order is unconstitutional. That ruling could then be appealed back to the Ninth Circuit and ultimately the U.S. Supreme Court. However, President Trump has two other options.

First, he can ask the U.S. Supreme Court to stay the district court’s temporary restraining order while the case is being fully briefed at the district court. This request would go to Justice Anthony Kennedy, who oversees emergency appeals from the Ninth Circuit. Justice Kennedy could rule on this issue alone or ask the entire Court to rule (which is probably more likely). Five votes from the current eight Justices would be needed to temporarily reinstate the ban. As Amy Howe of SCOTUSblog notes, “if the government can’t get those votes – which could be difficult, given the temporary and relatively narrow nature of the court’s ruling – the ban could remain on hold while its full merits are litigated in the lower courts.”

Second, instead of going directly to the Supreme Court, President Trump could ask the entire Ninth Circuit to stay the district court’s temporary restraining order while the case is being briefed at the district court.

Two other technical points about this case that could affect whether and how it is litigated are noteworthy. First, the travel ban only lasts for 90 days, so at some point very soon the litigation in this case could be moot unless the president extends the travel ban. Second, President Trump could modify the executive order to cure the due process problems the Ninth Circuit pointed out. However, this might not be enough. Washington and Minnesota raised numerous claims in addition to due process which the Ninth Circuit did not rule on for the sake of expediency. However, the Ninth Circuit went out of its way to describe, but not rule on, the states’ religious discrimination claim – which at the very least implies that the court thought this claim might be valid as well.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Is President Trump’s “2-for-1” Executive Order Actionable?

Without a doubt, state and local governments would benefit from the repeal of many federal regulations – but there are legal barriers to the president’s approach.

President Donald Trump signs an executive order to advance the construction of the Keystone XL and Dakota Access pipelines. (Wikimedia Commons)

President Trump signs an executive order to advance the construction of the Keystone XL and Dakota Access pipelines. (Wikimedia Commons)

Through executive orders, presidents are able to direct the work of administrative agencies and implement authority granted to their office by a federal statute or the U.S. Constitution. President Donald Trump’s “2-for-1” executive order – which states that, for every federal regulation proposed, two must be “identified” for repeal – has, unsurprisingly, been criticized by some and applauded by others. Per the executive order, for every regulation added, the cost of the new regulation must be offset by eliminating two regulations.

Those who are for the executive order argue it will be good for the economy. Those who are against it argue most regulations exist for good reason and eliminating regulations like “limiting lead in drinking water and cutting pollution from school buses” will harm Americans. Those opposing the executive order also argue it is arbitrary to eliminate regulations based solely on cost without considering benefit.

Without a doubt, state and local governments would benefit from the repeal of many federal regulations. But can it be done this way? At least two legal barriers exist to eliminating regulations, either through a “2-for-1” scheme or in general.

Some statutes require administrative agencies to write regulations. Simply eliminating such regulations would be legally problematic. The executive order is sprinkled with the phrase “unless required by law,” which is perhaps an acknowledgement that not all regulations can be eliminated without a replacement.

Per the Administrative Procedures Act (APA), getting rid of federal regulations involves the same lengthy and cumbersome process as adopting federal regulations. The agency must publish the proposed repeal in the Federal Register, solicit comments from interested parties, and read and respond to comments. This process would likely take more than a year, and much longer for more complicated or controversial regulations.

The APA requires that repeals of rules not be arbitrary or capricious. Per this standard, an agency must “display awareness that it is changing position” and “show that there are good reasons for the new policy.” Eliminating regulations for the sake of meeting a numerical or cost-based quota is not likely to satisfy this standard.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

What Might Justice Gorsuch Mean for State and Local Governments?

One case in particular gives cities a reason to be excited about this nomination.

President Donald Trump with Supreme Court nominee Neil Gorsuch at the White House. (Wikimedia Commons)

President Donald Trump with Supreme Court nominee Neil Gorsuch at the White House. (Wikimedia Commons)

The authors of Searching for Scalia evaluated who on President Donald Trump’s list of potential nominees to replace Justice Antonin Scalia’s seat on the Supreme Court would be most like Justice Scalia – the originalist, the textualist, and, most importantly, the conservative. The winner: Supreme Court nominee Judge Neil Gorsuch.

While just one case is too few to judge any Supreme Court nominee, one case in particular gives state and local governments a reason to be excited about this nomination. Last year, Judge Gorsuch (strongly) implied that, given the opportunity, the U.S. Supreme Court should overrule Quill Corp. v. North Dakota (1992). In Quill, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax.

While Judge Gorsuch hasn’t ruled on abortion (an issue states care about), his most prominent rulings involve a related issue (the Affordable Care Act birth control mandate), which is not of particular interest to state and local governments.

Interestingly, in the one area of the law where the views of Judge Gorsuch and Justice Scalia differ – agency deference – the views of state and local governments are generally more in-line with Judge Gorsuch’s view. Less than six months ago, Judge Gorsuch called for the end of Chevron deference. In Chevron v. NRDC (1984), the Supreme Court held that courts should defer to reasonable agency interpretations of ambiguous statutes. State and local governments generally prefer that courts not defer to federal agency regulations because this deference gives federal agencies a lot of power.

If Judge Gorsuch is confirmed, his views on agency deference could be very important if the Court rules on the legality of the Clean Power Plan, the Waters of the United States definitional regulations, and the Fair Labor Standards Act overtime rules.

Like Justice Scalia, Judge Gorsuch has written a number of opinions indicating he is supportive of religion in public spaces. His opinions don’t indicate that he objects to the death penalty. While he hasn’t decided any cases involving gun control, he encouraged the Tenth Circuit to review a case where it held that, to convict a felon for knowingly possessing a gun, the person convicted doesn’t have to know he or she is a felon.

Liberals, and conservatives especially, routinely rule against state and local governments in First Amendment cases. Judge Gorsuch’s First Amendment opinions indicate he may be no exception.

Justice Scalia was known to take a more pro-privacy, pro-criminal defendant view of the Fourth Amendment than his conservative colleagues on the Supreme Court. Many of Judge Gorsuch’s more prominent rulings involve the Fourth Amendment. United States v. Carloss demonstrates that Judge Gorsuch may have Fourth Amendment instincts similar to Justice Scalia. In this case, Carloss posted a “no trespassing” sign. In his dissent, Judge Gorsuch opined that the sign revoked a police officer’s license to enter the property.

Not much has been written about Judge Gorsuch’s views on some of the more routine cases brought against state and local governments, including employment, qualified immunity and land use. It would be surprising if Judge Gorsuch veered to the left on any of these issues.

Now that we know who the nominee is, two questions remain: Will the Senate Democrats filibuster Judge Gorsuch, as they have promised to do? And if they do, will Senate Republicans exercise the “nuclear option,” meaning only a simple majority of Senators will be needed to confirm Judge Gorsuch’s nomination? Time will tell.

SCOTUSblog provides a more in-depth analysis of Judge Gorsuch’s Tenth Circuit opinions.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Refugee Executive Order Faces Legal Challenges

Judges in New York and Boston, among other cities, have prevented parts of the executive order on refugees from going into effect temporarily, citing possible violations of the U.S. Constitution’s Due Process and Equal Protection Clauses.

(Wikimedia Commons)

Protestors have gathered at airports across the country, such as the Metropolitan Airport in Detroit (above), to protest President Trump’s executive order barring refugees and other visitors from predominantly Muslim countries from entering the United States. (Wikimedia Commons)

President Donald Trump’s refugee executive order has resulted in confusion and lawsuits which will continue to be resolved in the upcoming months. On Monday night, acting Attorney General Sally Yates directed Justice Department attorneys not to defend the executive order in court. President Trump quickly fired her. Dana Boente was promptly sworn in, and has instructed DOJ lawyers to “defend the lawful orders of our president.”

Cities preparing to receive Syrian refugees and others are having to change plans. Additionally, cities have been affected by protests, airports have been overrun, and 16 attorneys general have spoken out against the executive order.

While not all aspects of the executive order are entirely clear, it includes the following:

  1. People from the following countries may not enter the United States for the next 90 days: Iraq, Syria, Iran, Libya, Somalia, Sudan, and Yemen
  2. Syrian refugees are banned from the United States indefinitely
  3. No refugees will be allowed into the United States for the next 120 days
  4. Only 50,000 (versus 110,000 last year) refugees will be allowed in the United States in 2017
  5. Refugees with religious-based persecution claims will be prioritized where they are of a minority religion in their country of origin

Judges in New York, Boston, Virginia, and Seattle have issued temporary injunctions against various aspects of this executive order, citing a variety of legal grounds.

A wide swath of people will be affected by this executive order, including refugees, legal residents, and visa holders who may have different rights and legal claims based on their status. Adding to the complexity, the Immigration and Nationality Act appears contradictory. It gives the president of the United States broad power to ban classes of people for periods of time “as he shall deem necessary” – yet it also states that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”

Numerous legal theories have been relied on and are being discussed as grounds for challenging this executive order.

Judges in New York and Boston prevented parts of the executive order from going into effect temporarily, citing possible violations of the U.S. Constitution’s Due Process and Equal Protection Clauses. Due process generally requires that a person is afforded an opportunity to be heard (for example, at a hearing before an impartial decision-maker) before they are deprived of a right. Equal protection requires that the government not treat people differently on the basis of race, ancestry, or religion.

David Cole, Legal Director for the American Civil Liberties Union (ACLU), sees this executive order as essentially a Muslim-only ban on immigration which violates the Constitution’s Establishment Clause. While it doesn’t explicitly ban anyone on the basis of religion, the fact that it applies to seven Muslim-majority countries and creates, practically speaking, preferences for Christians, is enough to make it unconstitutional, Cole argues.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Legal Steps Sanctuary Cities Can Take If They Lose Federal Funding

The State and Local Legal Center’s Lisa Soronen discusses a few possible legal theories cities may rely on if they sue the federal government in the wake of President Trump’s most recent executive order.

(Getty Images)

New York City Mayor Bill de Blasio is threatening to sue the Trump administration in response to its most recent executive order, which calls for the removal of immigrants who (according to an immigration officer) are deemed to pose a risk to public safety. The order could theoretically pertain to any immigrant who has had any sort of interaction whatsoever with local law enforcement. (Getty Images)

On the campaign trail, President Donald Trump promised to cancel all federal funding to sanctuary cities who do not cooperate with the federal government in enforcing federal immigration law. True to his word, President Trump has signed an executive order stating that sanctuary cities are “not eligible to receive Federal grants,” with some unclear exceptions.

Whether and when this executive order will lead to cities losing federal funding, and how much, is unknown. New York City mayor Bill de Blasio has vowed to sue the federal government “the minute action to withhold funding” occurs.

Much has been written about what legal theories could be relied on to challenge the cancelling of federal funds. It is difficult to gauge the strength of these theories because all are rooted in Supreme Court precedent applying broad constitutional provisions in fact contexts different than this executive order.

Below are a few possible legal theories cities may rely on if they sue the federal government. The first three are based on limitation the Supreme Court has found in the Constitution’s Spending Clause. In short, the Spending Clause allows the federal government to place conditions on money states and local government receive – to a point. The final theory rests on the Tenth Amendment.

If sanctuary cities sue the federal government, they are likely to allege that cancelling all federal funding is “coercive” under the Spending Clause. In NFIB v. Sibelius (2012), Chief Justice Roberts famously described the federal government’s plan to withhold all Medicaid funding if states refused to agree to the Obamacare Medicaid expansion as a coercive “gun to the head.” In that case, states stood to lose more than 10 percent of their overall budget by not agreeing to the Medicaid expansion. Many sanctuary cities would stand to lose that percentage of their budget – and more – if they lost all federal dollars.

As George Mason University School of Law professor Illya Somin points out in a Washington Post article, the fact that the statutory language of most, if not all, federal grant programs to cities doesn’t require cities to assist the federal government with immigration enforcement is another possible ground for sanctuary cities to challenge this executive order. In decisions, including Pennhurst State School and Hospital v. Halderman (1981), the Supreme Court has stated that when Congress, using its spending power, imposes conditions on the receipt of federal funds it must do so “unambiguously.”

The Supreme Court also has held that per the Spending Clause conditions Congress place on grants must be “germane” or “related to” the federal interest in the grant program. In South Dakota v. Dole (1987), the Court noted approvingly that South Dakota didn’t challenge the “germaneness” of the Secretary of Transportation withholding a percent of highway funds to states which did not raise the drinking age to 21.

Now imagine if Congress “unambiguously” conditioned a number of federal grant programs for roads, health care, education, etc. on cities assisting with federal immigration enforcement. Cities could argue these conditions are not “germane” or “related to” the federal interests in funding roads, health care, or education.

The Tenth Amendment reserves powers not delegated to the federal government to the states. The Supreme Court has interpreted the Tenth Amendment to contain an anti-commandeering requirement where states and local governments cannot be required “to enact or administer a federal regulatory program.” For example, in Printz v. United States (1997), the Court struck down a federal law requiring local police departments to perform handgun background checks until the federal government could manage the task. Sanctuary cities could therefore argue that they cannot be commandeered into enforcing federal immigration law.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Executive Orders 101

Can President Trump cancel President Obama’s “unconstitutional” executive orders?

Former President Obama signs an Executive Order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity. (photo: White House Archives)

Former President Obama signs an executive order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity. (photo: White House Archives)

Former President Barack Obama, like most of the presidents that recently preceded him, issued about 300 executive orders. While on the campaign trail, President Donald Trump promised to cancel President Obama’s “unconstitutional” executive orders, and during his first days in office, President Trump has signed a number of executive orders of his own.

Through executive orders, presidents are able to direct the work of administrative agencies and implement authority granted to their office by a federal statute or the U.S. Constitution.

Executive orders are controversial because no provision of the Constitution explicitly authorizes them. Regardless, they have been used by every president (except one) since George Washington.

Executive orders, while considered to have the force of law, can’t be used to overturn laws – but the orders themselves can be overturned by Congress.

The U.S. Supreme Court has declared some executive orders unconstitutional. Perhaps the most famous example is the 1952 case of Youngstown Sheet & Tube Co. v. Sawyer. The Supreme Court struck down President Harry Truman’s executive order directing the Secretary of Commerce to seize and control all American steel mills. The Supreme Court ruled that neither the Constitution nor the laws of the United States authorized this action.

More recently, the Supreme Court agreed to decide if President Obama’s executive order allowing certain undocumented immigrants to stay and work in the United States indefinitely was unconstitutional. The Supreme Court issued a 4-4 decision last summer which effectively affirmed a lower court ruling striking down the executive order on grounds other than its constitutionality.

Can President Trump cancel President Obama’s “unconstitutional” executive orders? Yes – and he can reverse President Obama’s “constitutional” executive orders as well. For example, President Trump has already reinstated the “Mexico City Policy” by executive order, which prohibits non-governmental organizations that receive federal funds from providing or promoting abortions overseas. Since President Ronald Reagan, Democrat and Republican presidents have alternatively cancelled or reinstated this policy by executive order.

More relevant to state and local governments, President Trump may reverse Obama’s executive orders on climate change, energy, and immigration.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Trump May Not Be Able to Remove Federal Regulations Himself – But Someone Else Could

Three federal regulations of particular interest to cities might be on the chopping block following the inauguration, but the incoming administration would face difficulties removing them on its own.

A conservative Supreme Court could be the key to removing federal regulations under a Trump presidency. (Getty Images)

A conservative Supreme Court could be the key to removing federal regulations under a Trump presidency. (Getty Images)

President-elect Donald Trump has repeatedly stated that one of the goals of his new administration is to get rid of federal regulations. Three on the chopping block of particular interest to state and local government include:

  • the Clean Power Plan (CPP), President Barack Obama’s signature climate change measure
  • the regulations defining “Waters of the United States” (WOTUS), a significant term in the Clean Water Act defining the federal government’s jurisdiction to regulate water
  • the Fair Labor Standards Act (FLSA) overtime regulations, which extend overtime pay to four million workers

Despite the fact that the new administration has a menu of options when it comes to removing final federal regulations, the most effective options are probably the most difficult for the president to achieve. If any or all of these regulations go, it won’t likely be the result of the direct efforts of the new president – the U.S. Supreme Court would likely be responsible.

What Are Trump’s Options?

Perhaps the cleanest way to undo final regulations is to rewrite or eliminate the statutory language being interpreted in the regulation. For example, the WOTUS final rule includes eight categories of jurisdictional waters. Congress could simply rewrite the Clean Water Act to define WOTUS differently from the final regulations. But getting such a change through Congress would probably be impossible as Senate Democrats would certainly filibuster any change they saw as offering less environmental protection than the final regulations.

The Trump Administration could also instruct federal agencies to rewrite regulations, but a number of challenges arise with this option. First, the agency would have to come up with new proposed regulations – and depending on the regulation, this might take a lot of time. Take the Clean Power Plan regulations, for example; they are more than 300 pages long. In addition, once new regulations are proposed, they are subject to a public comment period of either 60 or 120 days. The agency must then consider hundreds or thousands of comments before issuing final rules. Finally, when this process is complete, the new regulations would almost certainly be subject to a court challenge. Changes to agency rules must be non-arbitrary, and supporters of any of the three regulations discussed in this post would likely be willing to sue.

Another option when it comes to dealing with disfavored regulations is to simply fail to enforce them by giving agencies inadequate funding to engage in rigorous enforcement or instructing agencies to make enforcement of particular regulations a low priority. This strategy would be more effective for some regulations than others. For example, if President-elect Trump instructed the Department of Labor to ignore employees being classified as “white collar” when they should not be per the FLSA, employees could pursue lawsuits against their employers for this violation without Department of Labor involvement.

Agencies also have the option of issuing interpretations of regulations that can take those regulations in a different direction than originally intended. This strategy would not work well for dismantling seismic regulations like the Clean Power Plan or very simple, straightforward regulations like the FLSA overtime rules. Also, these interpretations can be subject to court challenge as arbitrary and can be overturned with the stroke of a pen by the next administration.

The CPP, the WOTUS regulations, and the FLSA regulations are all currently being challenged in court on various grounds. The Trump administration can also refuse to defend these laws. But the lawsuits are unlikely to simply go away because interveners would probably step in to defend them. For example, states and local governments have already intervened to defend the Clean Power Plan, and the Texas AFL-CIO has sought to intervene to defend the FLSA overtime regulations.

Enter Justice Kennedy

Before President-elect Trump was elected, all three of the cases described above were likely headed to the Supreme Court. Despite his hostility towards them (and maybe even because of it), these regulations will probably still end up before the Supreme Court.

It is perhaps unfair to speculate how a Supreme Court Justice might look at these regulations (which are all being challenged on different legal grounds) based solely on whether that Justice is a conservative or a liberal. Nevertheless, these labels indicate general legal philosophies and leanings.

Conservative Justices – for a variety of reasons which may differ depending on the regulation – might generally be more likely to view these (and other regulations) with more hostility than liberal Justices. A conservative Justice is more likely to see any or all of these regulations as an attack on federalism or as an example of federal agency overreach. Regarding the CPP or the WOTUS rule in particular, a conservative Justice may see these measures as part of a pro-environment policy agenda rather than as a manifestation of clear law.

While we don’t know who President Trump will nominate to fill Justice Antonin Scalia’s vacancy, all signs point toward President Trump nominating (and the Senate ultimately confirming) a reliable conservative. But this nomination will not change the balance of the Supreme Court before Justice Scalia died; it would remain a 5-4 conservative Court with Justice Anthony Kennedy in the middle.

So, unless membership in the Supreme Court changes again soon, the fate of these regulations may lie in the hands of a person as puzzling, powerful, and unpredictable as Donald J. Trump: Justice Kennedy.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

2016 Supreme Court Preview for Local Governments

A number of cases currently on the Court’s docket will directly impact local governments – and in two of those cases, a city is a named party.

(Getty Images)

The Supreme Court’s docket is currently about half full – which is typical for this time of year. (Getty Images)

*Indicates a case where the SLLC has filed or will file an amicus brief.

The cases on the Supreme Court’s 2016 docket described below will directly impact local governments. In two of those cases, a city is a named party.

The issue in both Wells Fargo v. City of Miami* and Bank of America v. City of Miami* is whether Miami has “statutory standing” to sue banks under the Fair Housing Act (FHA) for economic harm caused to the city by discriminatory lending practices.

The Eleventh Circuit concluded Miami had “statutory standing” based on an older case, Trafficante v. Metropolitan Life Insurance Company (1972), where the Supreme Court stated that statutory standing under the Fair Housing Act is “as broad as is permitted by Article III of the Constitution.” The parties do not dispute that the city of Miami has Article III standing in this case.

In Ivy v. Morath,* the Supreme Court will decide when state and local governments are responsible for ensuring that a private actor complies with the Americans with Disabilities Act (ADA).

In Texas, state law requires that most people under the age of 25 attend a state-licensed private driver education school to obtain a driver’s license. Deaf students sued the Texas Education Agency (TEA), arguing it was required to bring the driver education schools — none of which would accommodate deaf students — into compliance with the ADA.

The ADA states that no qualified individual with a disability may be excluded from participation in, or be denied the benefits of, public entity “services, programs, or activities” because of a disability. The Fifth Circuit concluded that the ADA does not apply to the TEA because it does not provide “services, programs, or activities.”

In Murr v. Wisconsin,* the Supreme Court will decide whether merger provisions in state law and local ordinances (where nonconforming, adjacent lots under common ownership are combined for zoning purposes) may result in the unconstitutional taking of property.

The Murrs owned contiguous lots E and F, which together totaled .98 acres. Lot F contained a cabin and lot E was undeveloped.

A St. Croix County merger ordinance prohibits the individual development or sale of adjacent lots under common ownership that are less than one acre total. But the ordinance treats commonly owned adjacent lots of less than an acre as a single, buildable lot.

The Murrs sought and were denied a variance to separately use or sell lots E and F. They claim the ordinance resulted in an unconstitutional uncompensated taking.

The Wisconsin Court of Appeals ruled there was no taking in this case. It looked at the value of lots E and F in combination and determined that the Murrs’ property retained significant value despite being merged. A year-round residence could be located on lot E or F, or could straddle both lots.

In the case of Manuel v. City of Joliet,* Elijah Manuel was arrested and charged with possession of a controlled substance even though a field test indicated his pills weren’t illegal drugs. About six weeks after his arrest, he was released when a state crime laboratory test cleared him.

If Manuel would have brought a timely false arrest claim in his case, it is almost certain he would have won. But such a claim would not have been timely because Manuel didn’t sue within two years of being arrested or charged. So he brought a malicious prosecution claim under the Fourth Amendment.

An element of a malicious prosecution claim is that the plaintiff prevails in the underlying prosecution. Manuel “prevailed” when the charges against him were dismissed, and he brought his lawsuit within two years of the dismissal.

The question the Supreme Court will decide in Manuel v. City of Joliet* is whether malicious prosecution claims can be brought under the Fourth Amendment in the first place. The Supreme Court left this question open in Albright v. Oliver (1994).

Notably absent from the Court’s docket this term so far are a lot of routine issues the Court regularly takes, including Fourth Amendment searches, qualified immunity, and employment. The Court has plenty of time and space on the docket to agree to decide cases raising those issues.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.