Yesterday California Atty. Gen. Xavier Becerra filed a Complaint for Declaratory and Injunctive Relief [text of complaint][press release] on behalf of the state that will challenge President Trump’s proposal to build a wall at the U.S.-Mexico border. The lawsuit, which includes the California Coastal Commission as a plaintiff, states its purpose:
The People bring this action to protect the State of California’s residents, natural resources, economic interests, procedural rights, and sovereignty from violations of the United States Constitution, the National Environmental Policy Act and the Administrative Procedure Act occurring as a result of the actions of the United States of America, the United States Department of Homeland Security (“DHS”), former DHS Secretary John Kelly in his official capacity, Acting DHS Secretary Elaine Duke in her official capacity, the United States Customs and Border Protection (“CBP”), and Acting CBP Commissioner Kevin K. McAleenan in his official capacity (together Defendants”), with respect to the planning and construction of a border wall and related border barrier projects along the southern border of the United States, including sigificant projects (“Border Wall” or “Border Wall Projects”).
For background, see Patrick McGreevy and Jazmine Ulloa, California to sue Trump administration over plan for U.S.-Mexico border wall, Los Angeles Times, Sept. 20, 2017. — Joe
Democratic attorneys general filed the suit Wednesday in retaliation to the administration’s announcement a day earlier that it would end the program created by former President Barack Obama, unless Congress provided a legislative fix by March 2018. From the text of the complaint for declaratory and injunctive relief:
The States of New York, Massachusetts, Washington, Connecticut, Delaware, District Of Columbia, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia (the “States”) bring this action to protect the States—including their residents, employers, regulatory systems, and educational institutions—against the illegal actions of the President and the federal government.
Ending DACA, whose participants are mostly of Mexican origin, is a culmination of President’s Trump’s oft-stated commitments—whether personally held, stated to appease some portion of his constituency, or some combination thereof—to punish and disparage people with Mexican roots. The consequence of the President’s animus-driven decision is that approximately 800,000 persons who have availed themselves of the program will ultimately lose its protections, and will be exposed to removal when their authorizations expire and they cannot seek renewal.
In response to a presidential directive banning transgender individuals from military service, the ACLU has filed a complaint for declaratory and injunctive relief on the grounds that the transgender ban violates the constitutional guarantees of equal protection and substantive due process by singling out transgender individuals for unequal and discriminatory treatment. — Joe
The National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates & Defenders (GLAD) filed the suit, Doe v. Trump, in response to President Donald Trump’s recent tweets calling for a full ban on transgender people serving in the United States military. The complaint, which can be viewed here, rests on claims of equal protection, due process and estoppel, based on the inequity of the reversal of military policy after thousands of service members followed protocol and informed their chain of command that they are transgender. — Joe
On July 25, 2017, the DOJ announced that it will no longer award criminal justice grants to cities and states that refuse to cooperate with federal agents in detaining undocumented immigrants. This week, the City of Chicago sued the DOJ over the Department’s new conditions. [Text of Complaint] See Sanctuary jurisdictions will only receive DOJ criminal justice grant funds if cities and states cooperate in detaining undocumented immigrants, LLB, July 27, 2017.
In his Constitutional Law Prof Blog post, Steven D. Schwinn writes “Chicago challenges DOJ-added conditions on the Byrne Justice Assistance Grant program that, it says, exceed DOJ authority, violate federalism principles, and interfere with the City’s long-standing and effective Welcoming Policy, now codified as the Welcoming City Ordinance.” — Joe
“Ensuring the President ‘shall take Care that the Laws be faithfully executed'” is the mission of Take Care. Recently, Take Care complied a list of its coverage of all emoluments issues addressed by the bloggers at Take Care. The posts are divided into six topical categories:
- History & Theory of Emoluments
- CREW Lawsuit
- Maryland & DC Lawsuit
- Members of Congress Lawsuit
- Examples of Corruption & Emoluments
- Citizen Activism & Emoluments
Here’s the link. Recommended.
Last Friday, Citizens for Responsibility & Ethics in Washington (CREW), the plaintiffs in CREW v. Trump, filed their brief opposing President Trump’s motion to dismiss. CREW’s filing explains how the President is violating both of the Emoluments Clauses, and why the plaintiffs’ claims against him must be decided on the merits. Text of the brief and related materials. — Joe
Headlines are blaring everywhere about the lawsuit filed by Rod Wheeler against Fox News involving a Fox story, later retracted, about the death of Seth Rich as part of a plan to distract from the Russia investigation involving President Trump. See Lawsuit Asserts White House Role in Fox News Article on Seth Rich from the New York Times as an example. If anyone is interested, the complaint in the case is available from the Deadline news site, here. Another source is from Document Cloud. —Mark
On May 5, 2017, The Boston Globe published a report indicating that President Trump has been sued in federal court 134 times since he was sworn into office. While some suits are frivolous, the plaintiffs in most cases vary from green card holders who were blocked from entering the U.S. as a result of Trump’s travel ban to sanctuary cities that sued after the Trump administration threatened to withhold federal funding. In Trump has been sued 134 times in federal court since inauguration, Boston Globe, May 5, 2017, Matt Viser writes “The dramatic uptick in litigation — Barack Obama faced 26 suits at this point in his first year, while George W. Bush had seven, and Bill Clinton, 15 — is further evidence of the unsettled era ushered in by Trump’s election and the intense fallout stemming from his early executive actions. Court filings may not be as visible as demonstrations on the National Mall, but they ultimately could exert a more lasting check on his executive power.” — Joe
The complaint, filed late last week, asserts the interim provost and the University of Cincinnati illegally placed Jennifer Bard on administrative leave in March immediately following her response to local media reports about financial deficits at the College and faculty members’ responses to her efforts to reduce those deficits. The complaint also asserts Bard was denied due process of law under the Fourteenth Amendment when she was summarily placed on administrative leave, suffered First Amendment retaliation for speaking to the press on matters of public concern, and that the university breached both its contract with her and an agreed upon 6-month plan to restore mutual trust and communication. TaxProf Blog has the complaint. — Joe
The New York Times is reporting that Whittier Law School is planning to shut its doors. The school has not set a date but announced that it will not admit 1Ls this fall. Whittier is the first fully accredited school to announce plans to close. For more, see Elizabeth Olson’s DealBook post. See also Whittier Law School may close, as trustees announce no new students (National Jurist) which notes that Whittier’s enrollment has dropped from 700 in 2010 to less than 450. During the same time period, its median LSAT has dropped from 152 to 146. Its bar passage rate has dropped to 38.1 percent for the class of 2015, the most recent data available. It was as high as 69 percent in 2012. Inside Higher Ed reports that some law school faculty members have sued to block the school from closing. The faculty members claim that Whittier College is seeking to profit from a sale of the land on which the law school is located. Here’s their TRO brief. — Joe
Leading a coalition of 10 states and municipalities, New York Attorney General Eric Schneiderman petitioned the Second Circuit to review Trump’s order. The petitioners claim the Trump administration violated the federal Energy Policy and Conservation Act’s “anti-backsliding” provisions and the Administrative Procedures Act. The petition asks the appeals court to require the standards to take effect immediately.
Joining in the petition are California, Connecticut, Illinois, Maine, Massachusetts, Oregon, Vermont and Washington state – along with Pennsylvania’s Department of Environment Protection and New York City. In a letter yesterday, the coalition warned the Department of Energy to publish the new standards within 60 days or face a federal lawsuit. — Joe
Two journalists with long-term ties to the Middle East, including one US citizen, have been targeted for death because they are erroneously listed on the US government’s terrorist kill list. On March 30, 2017, the parties — Ahmad Muaffaq Zaidan and Bilal Abdul Kareem — filed suit in the US District Court for the District of Columbia seeking declaratory and injunctive relief under the Administrative Procedure Act for being placed on this kill list. From the complaint:
Plaintiffs are both journalists who do courageous and important reporting in some of the most difficult areas of the world. Their travel, communications, social media content and contacts, related data and metadata have been input into “algorithms” used by the United States to identify terrorists. Those algorithms have identified them as persons to be killed, not because they are terrorists but because the methodologies employed by defendants result in the unjustified killing of innocent people. Plaintiffs’ inclusion on the Kill List is the result of arbitrary and capricious agency action, accomplished without due process, and in violation of the United States Constitution and U.S. and international law.
From the Courier-Journal report by Grace Schneider:
A federal judge in Louisville said in a ruling that then-candidate Donald Trump incited the use of violence against three protesters when he told supporters at a campaign rally a year ago to “get ’em out of here.”
U. S. District Judge David J. Hale of the Western District of Kentucky also wrote in an opinion and order released Friday that because violence had broken out at a prior Trump rally and that known hate group members were in the Louisville crowd, Trump’s ordering the removal of an African-American woman was “particularly reckless.”
Text of the memorandum opinion and order here. For an analysis, see CUNY Law prof Ruthann Robson’s Constitutional Law Prof Blog post. — Joe
Last week, US District Court Judge Richard Story issued a ruling in favor of the Georgia Code Revision Commission to preserve the State of Georgia’s claimed copyright of the Official Code of Georgia Annotated (OCGA). Here’s the text: Code Revision Commission et al v. Public.Resource.Org, Inc. The case turned on Lexis-supplied annotations to an official state code that in this rare instance happens to be annotated; most, if not all, other official state codes are unannotated. As value-added material, the annotations entitled the work to copyright protection according to the district court. Wait ‘n see.
At the URL for Public Resources’ OCGA archive, Carl Malamud posted the following message:
Dear Fellow Citizen:
You have been denied permission to access this document at this time due to ongoing judicial proceedings in the following case: Code Revision Commission et al v. Public.Resource.Org, Inc. (Case 1:15-cv-02594-MHC, U.S. District Court for the Northern District of Georgia)
Your access to this document, which is a law of the United States of America, has been temporarily disabled while we fight for your right to read and speak the laws by which we choose to govern ourselves as a democratic society.
To apply for a license to read this law, please consult the Code of Federal Regulations or applicable state laws and regulations for the name and address of a vendor. For more information on edicts of government and your rights as a citizen under the rule of law, please read my testimony before the United States Congress. You may find more information on our activities at Public Resource on our registry of 2015 activities.
Thank you for your interest in reading the law. An informed citizenry is a fundamental requirement for our democracy to work. I appreciate your efforts and apologize for any inconvenience.
March 23, 2017
For an excellent article covering this development, see Joe Mullin’s If you publish Georgia’s state laws, you’ll get sued for copyright and lose: In some states, you can’t read the law without paying a corporation (ars technica, March 30, 2017)– Joe
The answer to that question is “wait ‘n see.” A former contestant on The Apprentice claims Trump defamed her by denying that he sexually assaulted her during the presidential election campaign in Zervos v. Trump, (Supreme Court of the State of New York County of New York, ndex No. 150522/2017). On March 27, 2017, Trump’s attorneys file this interesting memorandum of law.
H/T to and for a summary, see Adam Klasfeld’s Trump Asserts Immunity Against Defamation Claims (Courthouse News Service). — Joe
On Monday, AG Sessions announced new measures that would claw back Justice Department funds from sanctuary cities that take a more lenient approach to enforcing federal immigration laws. On Tuesday, The Trump administration’s threat to defund sanctuary cities dominated the House Judiciary Committee’s hearing. On Wednesday, the City of Seattle sued the Trump administration over his administration’s threats against sanctuaries cities in the Western District of Washington.
The lawsuit makes two main arguments about Trump’s Executive Order according to Dean Kevin R. Johnson’s (UC-Davis) Immigration Law Prof Blog post:
- The order is unconstitutional and ambiguous, and creates uncertainty around Seattle’s budget by threatening federal funding. It violates the 10th amendment by attempting to force local entities to enforce federal immigration law, and violates the Spending Clause by attempting to coerce local action through the denial of federal funds.
- The City of Seattle and our welcoming city policies do not violate federal law. The Executive Order calls for localities to cooperate with the federal government and share information. City employees are directed to cooperate with, not hinder, federal actions; however, City employees are prohibited from inquiring into immigration status. The City doesn’t prohibit information sharing, but instead limits the collection of information.
For recent CRS reports on sanctuary cities, see this LLB post. — Joe
Catherine A. Tremble attempts to answer that question in her forthcoming Fordham Law Review note, Wild Westworld: The Application of Section 230 of the Communications Decency Act to Social Networks’ Use of Machine-Learning Algorithms.
Here’s the abstract:
On August 10th, 2016, a complaint filed in the Eastern District of New York formally accused Facebook of aiding the execution of terrorist attacks. The complaint depicted user-generated posts and groups promoting and directing the incitement of terrorist activities. Under section 230 of the Communications Decency Act (CDA), Interactive Service Providers (ISPs), such as Facebook, cannot be held liable for user-generated content where the ISP did not create or develop the information. However, this case stands out because it seeks to hold Facebook liable not only for the content of third parties, but also for the effect its personalized machine-learning algorithms — or “services” — have had on the ability of terrorists to orchestrate and execute attacks. By alleging that Facebook’s conduct goes beyond the mere act of publication, and includes the actual services’ effect on terrorists’ abilities to more effectively execute attacks, the complaint seeks to prevent the court from granting section 230 immunity to Facebook.
This Note argues that Facebook’s services — specifically the personalization of social media pages through the use of machine-learning algorithms — constitute the “development” of content and as such do not qualify for immunity under section 230 of the CDA. Recognizing the challenge of applying a static statute to a shifting technological landscape, this Note analyzes recent jurisprudential evolutions in section 230 doctrine to revise the original analytical framework applied in early cases. This Framework is guided by congressional and public policy goals but evolves to demonstrate awareness of technological evolution and ability. It specifically tailors section 230 immunity to account for behavioral data mined for ISP use, and the effect the use of that data has on users — two issues that courts have yet to confront. This Note concludes that, under the updated section 230 framework, personalized machine-learning algorithms made effective through the collection of individualized behavioral data make ISPs co-developers of content and as such bar them from section 230 immunity.
Hoping to represent a class of consumers who bought LN’s New York Landload-Tennat Law (aka the Tanbook), the law firm of Himmelstein, McConnell, Gribben, Donoghue & Joseph brought a Feb. 23 complaint against the publisher in Manhattan Supreme Court.
“Rather than an authoritative source of state statutes, laws and regulations, the Tanbook, which is represented by the defendant as complete and unedited, is instead, at least as pertains to those involving rent regulated housing in New York rife with omissions and inaccuracies, rendering it of no value to the attorneys, lay people, or judges who use it,” the 25-page complaint states.
Details at Class Calls LexisNexis Publication Totally Useless (Courthouse News Service). Hat tip to and see also Jean O’Grady’s Dewey B Strategic post. — Joe
Bob Ambrogi reports that Casemaker had a change of heart and is now preparing to fight Fastcase over the publishing rights to the Georgia Administrative Rules and Regulations. Casemaker, as you may recall, claims to be the only authorized distributor of Georgia Administrative Rules and Regulations by virtue of its contract with the State of Georgia. Fastcase claims that a private publisher cannot create its own exclusive rights in non-editorial, non-enhanced public law by contract with the government.
For details about this latest development, including the text of Casemaker’s answer to Fastcase’s complaint, see Bob Ambrogi’s So Much for Casemaker Saying It Will Not Fight Fastcase Lawsuit. — Joe