Fourth Circuit defers to BIA on mandatory detention authority

Federal law authorizes immigration authorities to detain a criminal alien without a bond hearing “when the alien is released” from some other custody, such as state imprisonment. See 8 U.S.C. 1226(c)(1). The Board of Immigration Appeals has held that this statute authorizes mandatory detention even if the immigration authorities arrest and detain the individual well after his state custody has ended. The Fourth Circuit held today in Hosh v. Lucero that the BIA’s determination was entitled to Chevron deference and that the immigration-law version of the rule of lenity did not require an alternative outcome. Senior Judge Moon (WDVA) wrote the opinion for the court, in which Judge Keenan and Judge Floyd concurred.

Several district courts have been on both sides of the issue resolved by the Fourth Circuit in this case, although the Fourth Circuit’s decision appears to be the first circuit-level decision on this issue.

Somali pirates lose on appeal: Fourth Circuit affirms piracy convictions in U.S.S. Nicholas prosecution and reverses dismissal of piracy count in U.S.S. Ashland prosecution

The Fourth Circuit today issued published opinions in piracy prosecutions arising out of foiled attacks on the U.S.S. Ashland and the U.S.S. Nicholas. In both, the federal government won and the pirates lost.

The principal opinion, United States v. Dire, affirms the convictions and life-plus sentences of the Somali defendants against several challenges, including the claim “that their fleeting and fruitless strike on the Nicholas did not, as a matter of law, amount to a § 1651 piracy offense.” Judge King wrote the opinion for the Court, in which Judge Davis and Judge Keenan joined.

The other opinion, United States v. Said, vacates the dismissal of the § 1651 piracy count in the prosecution arising out of the attack on the U.S.S. Ashland. Judge King wrote the opinion for the Court, in which Judge Davis and Judge Keenan joined.

The Dire decision is a ringing endorsement of the thorough analysis provided by Judge Mark Davis (EDVA) earlier in the case. See United States v. Hasan, 747 F. Supp. 2d 599 (EDVA 2010). The Fourth Circuit’s opinion states: “Simply put, we agree with the conception of the law outlined by the court below. Indeed, we have carefully considered the defendants’ appellate contentions–endorsed by the amicus curiae brief submitted on their behalf [filed by counsel for the Said defendants]–yet remain convinced of the correctness of the trial court’s analysis.”

One for the dogs: Fourth Circuit issues First Amendment decision about doggy daycare mural

The Fourth Circuit today affirmed the dismissal of a First Amendment challenge to Arlington, Virginia’s prohibition of a doggy daycare’s mural near the Shirlington Dog Park. Judge Diaz wrote the opinion for the Court in Wag More Dogs, LLC v. Cozart, which was joined in by Judge Duncan and Judge Keenan. The challenger was represented by the Institute for Justice, which has a case page with background and more information, together with a response to today’s decision.

My preliminary reaction is that the opinion’s First Amendment analysis is overly deferential to the government. In assessing whether the challenged sign ordinance is content-based or content-neutral, the opinion follows the regrettable path of focusing almost exclusively on whether the ordinance was enacted because of disagreement with the message conveyed. The most underdeveloped part of the opinion, however, is its application of intermediate scrutiny, particularly the narrow tailoring prong. The county asserted that its ordinance serves two interests: promoting traffic safety and enhancing the County’s aesthetics. The county’s enforcement of its ordinance with respect to the challenged mural raises serious questions about how the ordinance is “narrowly tailored” to serve these interests, questions that the opinion simply does not address. The county told Wag More Dogs that the mural would not run afoul of the ordinance if (1) it depicted anything other than pictures relating to the doggy daycare business, or (2) it included the phrase “Welcome to Shirlington Park’s Community Canine Area.” Given the conceded lawfulness of hypothetical alternative murals that comply with either (1) or (2), it is hard to see how the ordinance is tailored at all, much less narrowly tailored, to the promotion of traffic safety or the enhancement of the County’s aesthetics. Instead of examining this issue, however, the opinion conclusorily asserts that the ordinance’s sign and location restrictions do no more than eliminate the exact source of the evil it sought to remedy.

PPACA Severability Series, Post 4

Following the Supreme Court oral arguments in the health care litigation, there has been much more after-argument augmention of merits analyses than severability analyses. That is unfortunate because an incorrect approach to severability poses a more significant problem of long-term distortion of the federal judicial role in constitutional adjudication. This PPACA severability series is an attempt to continue the conversation about severability.

The primary obstacle to clear thinking about severability is a pernicious metaphor that describes invalidation as excision, which is in turn understood as a legislative function. The operation of this metaphor can be seen, for example, in a recent article by Tom Campbell, Dean and Donald P. Kennedy Chair in Law, and Professor of Economics, Chapman University: Severability of Statutes, 62 Hastings L.J. 1495 (2011).

The major premise of Dean Campbell’s article is that “[c]ourts legislate when they engage in ‘severability analysis,’ allowing part of a law to continue in force after having struck down other parts as unconstitutional.” [1495] More precisely,  ”making something into law that was not precisely the text that had been approved by Congress and signed by the President is exactly what a court does when it exercises severability authority.” [1498-99]

From this characterization of severance as creating new legislation, the rest of Dean Campbell’s argument follows. Because a presidential “line-item veto” that would accomplish such legislative handiwork without bicameralism and presentment is impermissible, so too is judicial severance that operates just like a line-item veto. Dean Campbell accordingly calls for “the complete abolition of the severability doctrine.” [1497] According to Dean Campbell’s proposed approach, the unconstitutionality of one provision of a bill enacted into law would result in the invalidation of the entire bill of which that unconstitutional provision was a part.

As I have previously argued, the legislative characterization of the severability function is endemic in modern scholarly discourse and unreflectively implicit in existing doctrine. If one accepts Dean Campbell’s premise that severance creates new legislation, then his proposal makes sense as a way of enforcing the bicameralism and presentment requirements for creating new legislation. Dean Campbell’s proposal therefore presents a challenge to all those who accept an excision-based framework for judicial review.

In my view, however, the major premise is incorrect. A judicial refusal to enforce is not equivalent to amending the law or to exercising a judicial line-item veto. “When a court holds part of a statute unconstitutional, it issues a judgment saying so (and, in some cases, an injunction against its future enforcement). By virtue of precedent and preclusion, this judgment and the reasoning in support of it prevent the unconstitutional part of the statute from having legal effect going forward. Nothing about the actual text of the statute changes as a direct consequence of judicial action.” 85 N.Y.U. L. Rev. at 747.

The real challenge for those who advocate inseverability is to justify the transformation of (A) judicial refusal to give effect as law to one provision in resolving a case, into (B) a command that nobody (in the judiciary or otherwise) should give effect as law to any other provisions of the bill that contained the unconstitutional provision. I do not see how that justification of turning (A) into (B) can be done consistently with traditional separation of powers principles.

Fourth Circuit to hear big campaign finance oral argument in Richmond tomorrow

The Fourth Circuit will hear oral argument tomorrow in United States v. Danielczyk, a First Amendment challenge to a federal ban on corporate contributions to candidates. The legal arguments in Danielczyk grow out of Citizens United, in which the Supreme Court held unconstitutional a federal ban on independent expenditures by corporations.

The key reasoning in Judge Cacheris’s Danielczyk opinion focused on the idea that “corporations and human beings are entitled to equal political speech rights.” Because a flat contribution ban imposed on human beings would be unconstitutional, so is a flat contribution ban on corporations (who should at least be permitted to contribute within the limits imposed on contributions by human beings). Thus reasoned the district court. Now it’s the Fourth Circuit’s turn.

Apart from interesting issues of campaign finance law, the case presents questions about the proper role of inferior federal courts in assessing whether an earlier Supreme Court decision has been so radically undermined by a later Supreme Court decision as to be effectively overruled. The federal government’s brief focuses primarily on the claim that the issue in this appeal is controlled by the Supreme Court’s decision in FEC v. Beaumont (which reversed a Fourth Circuit decision invalidating the same statutory provision challenged in this appeal).

[UPDATE: The Washington Post is running an AP story by reporter Larry O'Dell on the oral argument. The story notes that one of the judges on the panel was Chief Judge Traxler. The other panelists were Judge Gregory and Judge Diaz. I was unable to attend the oral argument, but this panel seems like a good draw for the government. Judge Gregory authored the panel dissent from the Fourth Circuit decision reversed by the Supreme Court in Beaumont. And while it is dangerous to infer too much from one question, particularly without the context of the argument as a whole, the statement by Chief Judge Traxler quoted in the AP story is a favorable one for the federal government. According to the AP report, Chief Judge Traxler responded to an argument  by Jeffrey Lamken, attorney for one of the challengers, by stating, "That may be a great argument, but I just get a little uncomfortable when you’re asking me to overrule the Supreme Court.”]

CA4: Anti-MLS Complaints State a Claim Under Section 1 of the Sherman Act

The Fourth Circuit held today in Robertson v. Sea Pines Real Estate that putative class actions challenging two MLS services in South Carolina under Section 1 of the Sherman Act could go forward. On interlocutory appeal, the appeals court affirmed denial of the defendants’ motion to dismiss. Judge Wilkinson wrote the opinion for the Court, in which Judge King and Judge Agee joined. The decision is notable not only for its discussion of Section 1 caselaw, but also for its application of Twiqbal.

Fourth Circuit allows Muslim prisoner’s RLUIPA claim against Virginia correctional officials to go forward

The Fourth Circuit today reinstated the claim of a Muslim prisoner incarcerated in Virginia who sued state correctional officials under the federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”) after they refused to permit him to grow a short beard for religious reasons. The decision means that the prisoners claim can go forward, but further proceedings will be needed to determine whether the prisoner actually wins on the merits.

Chief Judge Traxler wrote the opinion for the court in Couch v. Jabe, in which Justice O’Connor and Judge Shedd joined. Here is the opening of the opinion:

William R. Couch, a Sunni Muslim currently incarcerated in a state correctional facility, brought this action alleging that prison officials violated the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) by refusing to permit him to grow a one-eighth-inch beard in compliance with the requirements of his faith. The district court granted summary judgment to the prison officials, and Couch appeals. Because the prison officials did not explain how a one-eighth-inch beard would implicate health or security concerns, they failed
to satisfy their burden under RLUIPA of showing that the general grooming policy that they rely upon is the least restrictive means of furthering a compelling governmental interest. Accordingly, we vacate the grant of summary judgment and remand for further proceedings.