Check out this post from our sister blog on an important employment decision:
Sixth Circuit Practice Institute – Oct. 29, Cincinnati
On October 29 in Cincinnati, the Federal Bar Association is hosting the Sixth Circuit Practice Institute. The Institute is planned in coordination with the Sixth Circuit and features a terrific line-up. Chief Judge Jeffrey Sutton, eight other Sixth Circuit judges, and several District Court judges will speak. This special single-day CLE will provide a unique opportunity to discuss practice issues in the Sixth Circuit and hear directly from the bench during a year when the judicial conference is judges-only.
A detailed brochure and agenda is here.
You can register here.
The program also includes a luncheon and cocktail reception. The keynote luncheon address will be given by Commissioner Kalpana Kotagal, who serves on the U.S. Equal Employment Opportunity Commission.
Panel topics include:
- How a Judge Decides a Case
- Artificial Intelligence in Advocacy and Judging
- Eyes on the Supreme Court
- Criminal Justice Act Training & Introduction to the Clerk’s Office
- Dialogue between Circuit and District Judges
- Judges’ Views on Effective Advocacy
- Behind the Scenes at the Staff Attorney’s Office
This is a fantastic way to get to know the Circuit! We’re looking forward to it.
The Second Amendment Permits The Disarming of “Dangerous” Felons
Each year, more than 8,000 people are convicted for unlawful possession of a firearm under 18 U.S.C. § 922(g). About 90% of those cases arose from gun possession by a felon. Firearm prosecutions are reportedly “the third most common federal offense.” Such prosecutions are even more common in some districts, including the Middle District of Tennessee where over 42% of cases involve § 922(g). Section 922(g) is the law that prohibits felons, and certain other groups, from possessing firearms. The Sixth Circuit has now taken a big step in defining the constitutionality of the law, holding that a person only loses his Second Amendment rights under § 922(g) by committing a crime that involves danger to others or the community.
As our readers know, Bruen held that government regulation of conduct that “the Second Amendment’s plain text covers” must be “consistent with this Nation’s historical tradition of firearm regulation.” That methodological approach to Second Amendment cases represented an express rejection of the courts of appeals’—including the Sixth Circuit’s—consensus “two-step test,” where courts would often balance the government’s prosecutorial interest against the defendant’s individual-liberty interest. Put (over)simply, the Supreme Court replaced interest balancing with historical inquiry.
This past term, the Supreme Court reinforced Bruen’s holding: “the appropriate analysis,” Rahimi explained, “involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” Rahimi rejected a facial challenge to Section 922(g)(8)’s disarmament of persons subject to a domestic violence restraining order, extracting from history a tradition of disarming “an individual [who] poses a clear threat of physical violence to another.”
Meanwhile, the lower courts have wrestled with Bruen’s applicationto Section 922(g)’s centerpiece—the ban on felons from possessing firearms. Results vary—not least in the district courts within the Sixth Circuit. But save for plain error cases the Sixth Circuit itself had not applied Bruen to the felon-dispossession law. Last week it finally confronted the issue head on.
Erick Williams both owned a gun and had been convicted of aggravated-robbery. That combination produced a felon-in-possession indictment, which Williams challenged by asserting the Second Amendment. In United States v. Williams, a decision written by Judge Thapar, the Sixth Circuit rejected his defense that Section 922(g)(1) is unconstitutional, both facially and as-applied.
Before Bruen, the circuits (including the Sixth) relied on a two-step balancing framework to uphold the constitutionality of felon-dispossession ban. After Bruen, some circuits refused to re-analyze the issue because analogous “pre-Bruen precedents controlled post-Bruen challenges.” But Judge Thapar’s opinion explained that Bruen’s “new analytical framework” required a new analysis because the old precedent was “inconsistent with Bruen’s mandate to consult historical analogs.” Bruen, of course, places the burden on the Government to show an American “historical tradition of regulating firearms” in a “relevantly similar” manner.
Judge Thapar’s historical analysis reviewed English disarmament laws from as early as the First War of Scottish Independence and the time of Magna Carta, through the Middle Ages, to colonial America, to the ratification of the Constitution and Bill of Rights, culminating in the Reconstruction era after the Civil War. The take-away from this historical analysis was that Governments have “long disarmed groups that they deemed to be dangerous.” But always, the court clarified, the disarmed “could demonstrate that their particular possession of a weapon posed no danger to peace.” The answer to the historical question was therefore that Congress has the power to disarm “dangerous” people.
But who is dangerous? The Sixth Circuit’s answer is that judges should make individualized determinations and “should [not] simply defer to Congress,” lest the legislature “define away a fundamental right.” The decision notes that Congress could also allow the Executive Branch to make a decision on dangerousness, and that Congress even created “rearmament” program through the Bureau of Alcohol, Tobacco, and Firearms. But since Congress has refused to fund the program so it is unavailable as a solution.
And who has the burden of proving dangerousness? The opinion places the burden on the defendant, deferring to Congress’ presumption that anyone convicted of a felony is dangerous. This is also a result of its historical inquiry: “Our nation’s history shows that the government may require individuals in a disarmed class to prove they aren’t dangerous in order to regain their right to possess arms.” And when considering the issue, a “defendant’s entire criminal record” is fair game. In sum, the Sixth Circuit now requires that courts give felons “a reasonable opportunity to prove that they don’t fit the class-wide generalization” of dangerousness imposed by Congress.
Did Mr. Williams convince the court that he was not dangerous? Not even close. After all, he had previously “robbed two people at gunpoint, stealing cash, a watch, and clothing” and had also “agreed to stash a pistol that was used to murder a police officer.” It seems unlikely he will ever legally own a gun.
But many cases will be more difficult, so the opinion gives advice that will no doubt be welcome to district courts that must now review dangerousness. It stated that crimes are dangerous if they are against “the body of another human being,” like murder, rape, assault, and robbery, or “inherently” pose “a significant threat of danger,” like drug trafficking and burglary. It explained that a person in those categories “will have a very difficult time, to say the least, of showing he is not dangerous.” The opinion then says that claims with no physical danger, like “mail fraud, tax fraud, or making false statements,” are a “more difficult category” that may not cause disarmament.
This new standard will likely take time to settle. The panel’s analysis requires a holistic, individualized analysis of each defendant’s criminal record. Drug crimes will likely be particularly difficult—for example, where a defendant has a prior possession conviction, but the amount of drugs was very high. Or a trafficking conviction with no gun charge and very small amounts. Courts will also wrestle with encounters with the justice system that do not lead to convictions, such as arrests and dismissed charges, but which sometimes can create a strong evidentiary record of dangerousness.
Another issue is notice. Someone may be convicted of, for example, felony perjury, and then have no idea afterwards whether they can own a gun. State and federal trial courts should consider giving explicit instructions on the issue during sentencing. They may also consider whether to make findings about how long afterwards the person should be considered dangerous, assuming that they have no further convictions. Certainly, the defense bar will argue that some felony convictions, especially those that are on the edge of dangerousness, should have a reasonable time-limit on disarmament.
Judge Thapar’s opinion strikes us as presenting a compelling reading of the historical record, combined with a reasonable compromise regarding felons and the Second Amendment. But there is a long way to go before these issues will be resolved.
Finally, Judge Davis concurred in the judgment. Her view was that the majority’s historical analysis was unnecessary because “the presumption of lawfulness [of felon dispossession] set forth in Heller, Bruen, and now Rahimi, is sufficient,” and she argued that the court’s pre-Bruen precedent remains good law. She would thus avoid the “dangerousness” issue altogether.
Sixth Circuit Explores the General Law of Wrongdoership
The “maxim that wrongdoers may not profit from their wrongs” is having a big week at the Sixth Circuit. In two cases—one about ERISA, the other about restitution—sons betrayed their mothers for financial gain. The facts in these cases are devastating, though the legal issues are fascinating nonetheless. In short, the murderer lost, but the fraudster won.
ERISA cases, let’s face it, are not known for intrigue. Standard Insurance Co. v. Guy is the outlier. Guy was the beneficiary of his mother’s employment benefits. Guy murdered his parents and had the audacity to try to cash in on their ERISA benefits. Tennessee has a “slayer statute” that ensures “a killer cannot profit from the killer’s wrong.” ERISA, however, casts a broad preemptive net, superseding “any and all State laws … relate[d] to any employee benefit plan.” The Sixth Circuit declined to decide whether ERISA preempts Tennessee’s slayer statute—following the path of the Supreme Court in Egelhoff v. Egelhoff.
The court first checked whether the text of ERISA controlled. Guy was his mother’s named beneficiary and ERISA prescribes that “plan fiduciaries act ‘in accordance with the documents and instruments governing the plan.’” But that rule, caselaw provides, admits of exceptions, such as, for example, cases of undue influence, forgery, and fraud. The court placed the “slayer scenario” within the exception and beyond “RCRA’s text.”
How then to decide whether federal law permits a killer to profit from his malfeasance? Rather than look to state law, the court resorted instead to the federal common law. Judge Larsen explained that the “federal common-law slayer rule” provided the rule of decision. The rule is “universal and near axiomatic in the insurance context,” and thus provides the backdrop of a “firmly entrenched” rule of “common law” against which “Congress enacted ERISA.” The result: Guy cannot benefit from his slain “mother’s ERISA policies.”
In the other case, United v. O’Hara, the crime was not quite so heinous. For defrauding his mother, O’Hara received a sentence to prison plus restitution due to her estate. The mother passed, leaving O’Hara as her sole beneficiary—a fact known to the government at sentencing. After sentencing, at the government’s request, the district court amended its sentence to redirect the restitution payment to the Crime Victim’s Fund instead of the mother’s estate. But the Sixth Circuit reversed because the trial court lacked authority to modify the restitution payment.
Authority to modify a criminal sentence, Judge Nalbandian explained, must come from a statute. The provision that addresses modification of restitution, 18 U.S.C. § 3664(o), is silent on the situation at hand. Although the Mandatory Victims Restitution Act gave the trial court good reason to direct restitution away from the mother’s estate “when sentencing” O’Hara, it provided no basis to modify an existing judgment. Without express authority to alter the restitution sentence, the government invoked the “maxim that no one should benefit from his own wrongdoing.” While true, the court responded, “background principles of equity do not displace statutory text.”
In Guy, the wrongdoer rule carried the day; in O’Hara, it gave way to the sentencing law. But the two cases are readily reconcilable. ERISA aims to be comprehensive. But when a benefits case uncovers a “gap” in ERISA or a question the written law “itself does not answer,” the federal common law—what Caleb Nelson calls “background rules of general law”—supplies the answer. For beneficiaries’ rights, the wrongdoer rule embodies the general law. O’Hara explained that a different default rule controls modification of a criminal sentence: it “requires an express ‘statutory basis.’” The wrongdoer rule may influence an equitable criminal sentence, but a court cannot post-hoc modify a final judgment in service of that “ancient equity maxim.”
In Rare Summer Opinion, Supreme Court Follows Sixth Circuit’s Lead
In Department of Education v. Louisiana, the Supreme Court issued a rare August opinion to maintain two preliminary injunctions that block the Department of Education’s new rule. That rule expands Title IX to prevent sexual-orientation and gender-identity discrimination. State coalitions brought challenges; district courts in Louisiana and Kentucky enjoined the rule during the litigation; the Fifth and Sixth Circuits denied the government’s requests to stay the injunctions, nor would the Supreme Court intercede for the government.
All the Justices agreed that aspects of the rule warranted interim relief, most centrally the “provision that newly defines sex discrimination” to include sexual-orientation and gender-identity discrimination. But because the district courts enjoined the entirety of the rule, the scope of relief proved divisive. A narrow majority agreed to leave the broad injunctions in place, while four Justices in dissent argued to sever the suspect aspects of the rule and allow the remainder of the rule to take effect. With emphasis on the “emergency posture,” the majority explained that the government had not carried its burden “on its severability argument.”
Justice Sotomayor’s dissent proposed limiting the injunctions to just the three challenged aspects of the rule. The dissent focused on the “traditional” limits on courts’ power to fashion “equitable remedies.” That Justice Gorsuch joined Justices Sotomayor, Kagan, and Jackson should come as no surprise. Justice Gorsuch has harped on limiting equitable remedies to party-specific relief (e.g. Labrador v. Poe); cast doubt on severability doctrine (Barr v. AAPC (opinion concurring in part and dissenting in part)); and, of course, authored the landmark Bostock v. Clayton County decision that interpreted Title VII to protect against sex discrimination in much the same way the Department wishes to interpret Title IX.
This decision is an unreliable forecast of the Court’s view of what Title IX sex discrimination encompasses. The Court unanimously agreed to table the debate over the Department’s new definition of sex discrimination while the lower courts proceed “with appropriate dispatch.” The case concerned the status of the rest of the rule as that litigation continues.
A truer tell on the merits is the Sixth Circuit panel’s order denying the government’s stay request. The panel found it “likely” “that the Rule’s definition of sex discrimination exceeds the Department’s authority.” Preliminarily at least, the court thought it unlikely that Title IX—last amended in 1972—addresses sexual-orientation and gender-identity discrimination. The Sixth Circuit has been reluctant “to export Title VII’s expansive meaning of sex discrimination to other settings”—and so it was here.
If “past is not always prologue,” still sometimes it is. The Sixth Circuit panel divided on the injunction’s scope just like the Supreme Court. Chief Judge Sutton and Judge Batchelder formed the majority, finding that the three “central provisions of the Rule . . . appear to touch every substantive provision.” Saddling school administrators with new regulatory requirements on the eve of the new schoolyear tipped the equities toward enjoining the full rule. Judge Mathis dissented because the injunction disturbed provisions of the rule “that Plaintiffs have not challenged.”
For now, the Department’s new rule yields to the old one. That rule, too, is being litigated in the Sixth Circuit because guidance documents say the Department will interpret Title IX the same way Bostock interpreted Title VII. See Tennessee v. Dep’t of Educ. and this coverage at the Notice & Comment blog. To close out with some Supreme Court trivia—this marks its first mid-summer opinion since Alabama Association of Realtors v. DHHS in 2021, where the Court ended the Biden Administration’s Covid-era moratorium on evictions. Before that may be the Court’s September 2012 decision Tennant v. Jefferson County Commission involving a challenge to West Virginia’s congressional districts.
Divided Sixth Circuit Panels Find Tennessee Gender Laws Constitutional
A Tennessee law prevents changing one’s designation of sex on his or her birth certificate, even if that person has changed gender identity on other official documents as in life. In Gore v. Lee, the Sixth Circuit affirmed this law’s constitutionality. This decision is best understood in tandem with another gender-rights case from Tennessee: L.W. v. Skrmetti. Last year in L.W., the court upheld Tennessee’s limitation on minors’ ability to obtain sex-transition intervention. The same divided panel decided both cases—with Chief Judge Sutton writing, Judge Thapar joining, and Judge White dissenting.
Let’s unpack both decisions, beginning with the recent birth certificates case. All the States record data about their newly born citizens. Although Tennessee does not condone changes to the sex assignment on a birth certificate (save for recording errors), the court surveyed other States that allow it on varying conditions. In this Circuit, for example, Kentucky requires surgery first, Ohio requires a medical declaration, and Michigan permits birth certificate amendment “based solely on applicants’ declaration of their current gender identity.”
Noting the States’ varied approaches to the issue, the court found no substantive “right to a birth certificate conforming to one’s gender identity.” The court applied Washington v. Glucksberg’s framework, where an unenumerated right must be “‘deeply rooted’ in our history and ‘implicit in the concept of ordered liberty’” to garner substantive due process protection. As for the Equal Protection Clause, the court held that the Tennessee law does not discriminate based on sex but rather “treats the sexes equally … , even if sex ‘factors into’ the law’s application.” The court would not treat transgender status as a “suspect class” for the first time, and the law withstood rational-basis review. “Tennessee did not exceed [its] discretion in distinguishing biological sex from gender identity in its birth certificate records.”
Chief Judge Sutton concluded in characteristic form: “policymaking in this area through democracy rather than through federal judges is far more likely to lead to stable settlements than efforts to update the meaning of the Fourteenth Amendment.” Because the “Constitution does not speak directly to this evolving issue in our society,” he added, the States may decide.
L.W. v. Skrmetti laid the groundwork for Gore. In a challenge to Tennessee’s “ban [on] certain medical treatments for minors” to transition gender, Chief Judge Sutton framed the case as whether the Constitution transfers decisional authority over an ongoing and “novel topic of medical debate” from “the democratic process” to “life-tenured federal judges,” in the context of children, no less. That framing spelled trouble for the challengers.
Resemblant to the analysis in Gore, the “key to the constitutionality of [the] laws,” according to the court, was “that they do not disadvantage ‘persons’ based on their sex” or any other immutable characteristic. Same as Gore, the court would not assign transgender individuals to a suspect class due heightened protection under the Equal Protection Clause. And considering the long tradition of governments regulating the medical profession, without a pedigree of judicial intervention, the court found no due-process right of minors to obtain the restricted medical procedures. Nor could the court locate a due-process right of parents to negate the Tennessee law.
As this post runs long, much more could be said. A few notes to wrap up: (1) The Supreme Court has granted review of L.W., and we anticipate an argument later this year with a decision to come, realistically, next June; (2) Judge White wrote thorough dissents in both cases, finding unjustified sex- and identity- based discrimination; (3) the challengers in both cases pressed arguments based on Bostock v. Clayton County—the Supreme Court’s Title VII decision about discrimination against sexuality and gender identity—but the majority would not import Bostock’s statutory analysis “into the Fourteenth Amendment.”
A final post-script: Before the ink could dry in Gore, yet another divided panel of the Sixth Circuit decided yet another culturally salient case from Tennessee. This case, Friends of George v. Mulroy, featured a First Amendment challenge to the Tennessee law that bans drag shows performed in public or around minors. The district court enjoined the law’s enforcement, but the Sixth Circuit reversed, unable to find standing for the organizational plaintiff that did not itself perform drag shows. Judge Mathis dissented. The Tennessee legislature has kept the Sixth Circuit busy; we are doing our best to keep up.
The limits of Loper Bright and the long decline of Chevron
Given the continuing discussion about the Supreme Court’s decision to overrule Chevron in Loper Bright Enterprises v. Raimondo, we thought that a review of the decision (and its limits) is in order.
The Loper Bright decision
The 6-3 decision written by Chief Justice Roberts launched a full-throated attack on deference to administrative agencies: “Chevron gravely erred”; it “required judges to disregard their statutory duties”; it is “fundamentally misguided,” “impressionistic and malleable.” The Court concluded: “Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.”
Starting with first principles, the Court explained that the judiciary interprets the law. That tradition persisted through the New Deal, the Court recounted, when decisions like Skidmore v. Swift & Co. permitted agency deference based only on the “power to persuade.” The Court framed Chevron v. NRDC as a departure from that tradition by sometimes insisting on deference to agency interpretations. When a statute is “silent or ambiguous,” Chevron required courts “to defer to the agency if it had offered ‘a permissible construction of the statute.’” The majority criticized that rule as unworkable, as shown by subsequent efforts to clarify the standard (like US v. Mead Corp’s “step-zero” analysis) that “only added to Chevron’s unworkability, transforming the original two-step into a dizzying breakdance.”
In addition to those structural concerns, the Court relied on the Administrative Procedure Act, whose Section 706 instructs courts to “decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” By contrast, the APA “does mandate that judicial review of agency policymaking and factfinding be deferential.” The majority read the APA, like the constitution, to require courts to exercise “independent judgment on questions of law.” The majority also rejected the dissent’s stare decisis concerns, stating that “[r]ather than safeguarding reliance interests, Chevron affirmatively destroys them.”
Justice Thomas and Justice Gorsuch separately concurred, the former focusing on separation of powers concerns and the latter addressing stare decisis concerns. Justice Gorsuch offered: “judges [play] a lawfinding rather than lawmaking role” that at times requires courts to “inter” bad precedents. In dissent, Justice Kagan returned to her common theme of adherence to precedent, and she also defended Chevron deference as correct in the first instance.
The limits of Loper Bright
Despite overruling Chevron, the majority was clear that substantive holdings using the deference framework remain good law. Loper Bright, after all, only affects agency rules or action that is based on statutory ambiguity or silence. As under Skidmore, we can expect courts to continue to adopt agency rules and interpretations that are persuasive or backed up by significant experience. Substantive holdings that Chevron produced are subject to their own stare decisis analysis, which applies with strongest force in statutory interpretation cases—as the Court itself recognized.
In addition, deference to an agency’s interpretation of its own regulations (“Auer deference”) ostensibly remains good law; after all, the Court favorably cited Kisor v. Wilkie a handful of times.
There are other limits, including that Loper Bright only applies to an agency’s conclusions of law; it does not affect the traditional deference to agency factfinding. The APA states that such findings of fact can be set aside only if they are “unsupported by substantial evidence.” And nothing in Loper Bright prevents courts from interpreting statutes to recognize that Congress has delegated an agency wide discretion: “When the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject to constitutional limits.”
Ultimately, the effects of Loper Bright will likely be on full display in fields subject to new or evolving regulation, as they will be more vulnerable to challenge without Chevron deference.
The long decline of Chevron
An interesting subplot to Chevron’s fall is that it has been coming for a long time–hopefully facilitating a smooth transition to the new standard. The Court hadn’t “deferred to an agency interpretation under Chevron since 2016,” in Cuozzo Speed Technologies v. Lee. To the dissent, this was a purposeful preparation “to overrule Chevron.” The Court passed over many chances to defer, such as in cases like West Virginia v. EPA that present “major questions” of “deep … significance.” Part of the dynamic, as the Court explained it, is that where “[o]ne judge might see ambiguity everywhere; another might never encounter it.” The Court cited Judge Kethledge for the second proposition. Judge Kethledge said in a 2017 article: “I personally have never had occasion to reach Chevron’s step two in any of my cases.”
But not every Sixth Circuit judge can say the same. In Valent v. Commissioner of Social Security, for example, the court finding the relevant statute ambiguous deferred to the Commissioner’s reasonable interpretation. This prompted Judge Kethledge to dissent. In a more recent case, Ohio v. Becerra, the Sixth Circuit applied Chevron because Supreme Court precedent interpreting the same statute compelled deference. But the court observed a shifting “doctrinal landscape” that left “[t]he status of the Chevron deference doctrine … notoriously uncertain.” (In Becerra, Chevron helped sustain part of an abortion-related HHS rule).
Reflecting the shift in administrative law, our review of Sixth Circuit cases shows that the court of appeals has been citing Chevron less and less – and for less-important reasons – over the past fifteen years. For example, last year in Hardin v. ATF, the Sixth Circuit resorted to the rule of lenity instead of Chevron deference to resolve an ambiguity in favor of the private citizen by deciding that a semi-automatic gun equipped with a bump stock is not a machine gun—the same ruling the Supreme Court recently reached in Garland v. Cargill. As the Sixth Circuit maintains an active administrative law docket, its cases ushering in the Loper Bright era will be critically important.
Supreme Court GVRs Two Sixth Circuit Cases And Other Highlights from the Order List
The Supreme Court’s recent spate of high-profile decisions gives Court watchers much to process. At this blog, we hope to explore many of those decisions as summer progresses. In the meantime, we note a couple details from the Court’s Order List this week following its “clean-up conference.”
I count 30 cases the Court granted, summarily vacated, and remanded to the courts of appeals (GVR’d). These were cases similar enough to Loper Bright, Rahimi, Erlinger v. United States, and other fresh decisions to merit a new look at the circuit level. Two Sixth Circuit cases were GVR’d, both with instruction to apply Erlinger—Justice Gorsuch’s opinion that the Fifth and Sixth Amendments and Apprendi require a jury to find a defendant’s past, separate offenses before imposing the Armed Career Criminal Act’s mandatory minimum sentences. In those two unpublished decisions, United States v. Thomas and United States v. Cogdill, the Sixth Circuit had affirmed the findings of ACCA-predicate offenses by a district court, not a jury. Critically, however, both the Chief Justice and Justice Kavanaugh (joined by Justice Alito) stressed that violations of the right Erlinger recognized “are subject to harmless error review.”
Further down the Order List, Justice Thomas and Justice Sotomayor wrote separate opinions related to two cert. denials in Sixth Circuit cases. First up, Justice Sotomayor addressed the “absolute immunity [of] a prosecutor,” highlighting the “limits” of such immunity and other “safeguards” against prosecutorial misconduct. This discussion arose from the case of Price v. Montgomery County, where the Sixth Circuit affirmed the dismissal of a §1983 action against a Kentucky prosecutor based on “a mix of absolute and qualified immunity.” Justice Sotomayor found it “difficult to see how” the prosecutor’s “destruction of evidence to thwart a court order” enjoys immunity.
Meanwhile, Justice Thomas dissented from the Court’s cert. denial in Allstates Refractory v. Su. In that case, the Sixth Circuit held that “the standard prescribed by the OSH Act [is] a constitutional delegation of authority” to OSHA. The Act empowers OSHA to make Rules it deems “reasonably necessary or appropriate to provide safe or healthful employment.” 29 U.S.C. § 652(8). Justice Thomas observed this is perhaps “the broadest delegation of power to an administrative agency found in the United States Code.” Justice Thomas would have taken the case to reassess the “intelligible principle” standard that limits congressional delegations of authority to the Executive Branch. Without joining the dissent, Justice Gorsuch signaled that he too would have granted review. And, as Justice Thomas noted, other Justices have also signaled interest in adding teeth to the nondelegation doctrine, but this was not to be the case.
Notably, Judge Nalbandian wrote separately in both Price and Allstates Refractory. He reviewed history and recent scholarship and came away skeptical of the vitality of a prosecutorial immunity defense in a §1983 case. Justice Sotomayor quoted his partial concurrence. Judge Nalbandian also dissented at considerable length (28 pages) in Allstates Refractory, detailing his view that the OSH Act’s delegation fails “even under the minimal requirements” of the “intelligible principal” standard.
Rounding out this eventful Order List, the Court granted review in 5 new cases. These include a free speech case, a case involving the FDA’s attempt to regulate vapes, an immigration case, and finally two consolidated cases on criminal sentencing under the First Step Act. The last cases are significant because the Supreme Court denied a petition out of the Sixth Circuit that raised the same issue, after six judges dissented from the denial of rehearing en banc. The Court is expected to issue three more order lists this summer, but any fireworks are unlikely.
Here’s to a happy Independence Day!
En Banc Court Hears First Amendment Challenge to Campaign Finance Restriction
Congratulations are in order to the forty-something law clerks that swore in to the Sixth Circuit bar Wednesday. That was a prelude to the court’s en banc argument on campaign finance restrictions in National Republican Senatorial Committee v. FEC. The Committee challenges the constitutionality of part of the Federal Election Campaign Act that places limits on political parties’ “coordinated party expenditures.”
Notably, the en banc court is taking the first pass on the constitutional question. The Act includes a unique judicial review provision that requires the district court to “immediately … certify all questions of constitutionality of this Act” to the court of appeals to “hear the matter sitting en banc.” All 16 of the Sixth Circuit’s non-senior judges sat for the lively argument.
In limiting “coordinated party expenditures,” the Act caps the amount a party may spend on activities like political advertising for a candidate. Even if that spending limitation serves the legitimate objective of limiting corruption and its appearance, the Committee argued, the restriction violates the core First Amendment right to associate with the political candidate of one’s choosing under seminal precedents like Citizens United, McCutcheon, and the 2022 Cruz decision (all versus FEC).
Sixth Circuit Grants P.G. Sittenfeld Release from Prison Pending Appeal
Today, the Sixth Circuit took the relatively rare step of granting a criminal defendant’s release from prison before deciding the merits of his case. That followed last week’s oral argument in the high-profile criminal appeal of Alexander “P.G.” Sittenfeld, the former Cincinnati City Councilperson. Sittenfeld’s counsel closed his rebuttal argument by renewing his request for release from prison pending appeal, in advance of the Court issuing its opinion. The court granted that relief today (subject to conditions) in a per curiam order. This interim relief is a positive development for Sittenfeld, though the court was careful to “express no opinion on the ultimate outcome of Sittenfeld’s appeal.” The briefs and oral argument satisfied the panel that Sittenfeld at least met “the standard for release pending appeal.”
