Tag: clause

Border Wall Funding Upheld (SCOTUS)

On 26 July 2019, in Trump v. Sierra Club, 588 U. S. (2019), the US Supreme Court stayed an injunction blocking President Trump’s allocation of funds for a border wall with Mexico. The decision was supported by Justices Alito, Gorsuch, Thomas and Kavanaugh and Chief Justice Roberts, with Justice Breyer concurring in part and dissenting in part. Justices Kagan, Sotomayor and Ginsburg dissented.

The Supreme Court ruled that the Trump Administration had “made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.” The injunction was lifted on the grounds that the Trump Administration would suffer ‘irreparable harm’ if the injunction had been left in force. This was based on the fact that if the funds had not been released, the Trump Administration would not have been able to finalise contracts with building companies by 30 September 2019, meaning that the funds would have had to be “returned to the Treasury and the injunction [would] have operated, in effect, as a final judgment.” The injunction is stayed pending the appeal before the Court of Appeals for the Ninth Circuit and a potential appeal from that Court to the US Supreme Court, if pursued.

In his partly-concurring and partly dissenting opinion, Justice Breyer, the least liberal of the four liberals on the US Supreme Court, argued that the injunction should have been stayed in so far as to allow the Trump Administration to finalise the contracts but not to begin construction. According to Justice Breyer, this would have allowed the Trump Administration to use the funds before they expire on 30 September 2019, yet at the same time, it would have prevented the wall from being erected before the case was properly decided on the merits.

The original injunction was prompted by Proclamation 9844 declaring a state of emergency at the Southern border issued by President Trump under the National Emergencies Act 1976 on 15 February 2019. The National Emergencies Act 1976 contains a list of special 136 emergency powers which can be relied on once an emergency has been declared. Under Proclamation 9844, the Trump Administration relied on section 8005 of the Department of Defense Appropriations Act of 2019 allowing the Secretary of Defense to transfer funds for military purposes if the Secretary determines that the transfer is “for higher priority items, based on unforeseen military requirements” and “the item for which funds are requested has [not] been denied by the Congress.” Under Proclamation 9844, the Trump Administration moved $8 billion from the Department of Defense to the Department of Homeland Security to finance the construction of the wall at the US-Mexico border after Congress had refused to allocate more than $1.375 billion for that purpose (NY Times).

As soon as Proclamation 9844 was issued, the Sierra Club and Southern Border Communities Coalition, two advocacy groups represented by the ACLU, sued claiming that Proclamation 9844 violated the Appropriation Clause of Article I, Section 9 of the Constitution which identifies Congress as the only body responsible for the allocation of funding. In May 2019, in Sierra Club v Trump, 19-cv-00892-HSGthe District Court for the Northern District of California imposed a preliminary injunction declaring that the redirection of the funds towards the construction of the wall violated the Appropriation Clause. Then, in June 2018, in a second decision, the same Court made the injunction permanent. The Trump Administration appealed against the injunction, but in a 2-1 decision, the Court of Appeals for the Ninth Circuit declined to lift the injunction pending a full appeal. Now, that the US Supreme Court has stayed the injunction, the construction of the wall will proceed while the case is being considered by the Court of Appeals for the Ninth Circuit on the merits.

However, the case of Sierra Club v Trump is not the only Court case against Proclamation 9844. On the announcement of Proclamation 9844, the House of Representatives, being co-responsible for the allocation of funding under the Appropriate Clause, sued in the District Court for the District of Columbia seeking to block the redirection of funds for the wall. On 3 June 2019, the Court ruled, in US House of Representatives v Mnuchin, 1:19-cv-00969, that the House of Representatives had no legal standing to sue the President and, therefore, it lacked jurisdiction to hear the case. No decision on the merits was issued (The Washington Post).

Interestingly, the decision in US House of Representatives v Mnuchin, 1:19-cv-00969 can be contrasted with a recent case of US House of Representatives v. Burwell, 130 F. Supp. 3d 53, 81, where, in September 2015, the same District Court for the District of Columbia (although a difference Judge) held that the House of Representative (with a Republican majority) had a legal standing to sue the Obama Administration for unauthorised payments under a cost-sharing program under the ObamaCare. In fact, in its subsequent decision on the merits in May 2016, in US House of Representatives v. Burwell, 185 F. Supp. 3d 165, the Court ruled that those payments had in fact violated the Appropriate Clause. However, the ruling was stayed while the Obama Administration pursued an appeal before the Court of Appeals for the District of Columbia Circuit. In December 2017, with the 2016 presidential election intervening, the lawsuit was settled with the new Administration. Nevertheless, when it comes to the question of the House of Representatives’ legal standing to sue for unauthorised spending, the case produced a definite positive answer at the District Court level (HealthAffairs).

Scope of Double Jeopardy Clause Limited (SCOTUS)

On 17 June 2019, the US Supreme Court ruled 7-2, in Gamble v. United States, No. 17-646, 587 U.S. (2019), that the Double Jeopardy Clause of the Fifth Amendment did not protect the petitioner against federal prosecution for an unlawful possession of firearms on the basis that the had already been tried for this act  before a State court. The Majority opinio written by Justice Alito and joined by Justices Thomas, Breyer, Sotomayor, Kagan, Kavanaugh and Chief Justice Roberts demonstrates a strong literal approach to constitutional interpretation, an faithful adherence to the document’s original meaning and a great concern for federalism.

Justice Alito, writing for the Majority, held that the Double Jeopardy Clause, which protects against being ‘twice put in jeopardy’ ‘for the same offence’, remained subject to the doctrine of separate sovereignty, specifically allowing for prosecution by a State and the federal governments based on the same charges. The Majority opinion in Gamble v. United States applies a strict literal interpretation of the Fifth Amendment (Part IIA), in doing so relying on Justice Scalia’s reasoning in Grady v. Corbin, 495 U. S. 508 (1990) where he distinguished between protection against being prosecuted for the same ‘offence’ and the same ‘act’ (at 529). Justice Alito therefore argues that, as originally understood, an ‘offence’ is defined by a law and law can only be defined by a sovereign. Given that States are sovereign creators of laws, a federal offence and a State offence pertaining to the very same conduct are not in fact ‘the same offence’ and therefore the Double Jeopardy Clause does not apply.

Justice Alito refuses to consider an argument based on the legislative history of the Double Jeopardy Clause holding that “the private intent behind a drafter’s rejection of one version of a text is shoddy evidence of the public meaning of an altogether different text.” (Part IIA). But at the same time, he claims that even if the legislative history was to be relied on, it would support the doctrine of separate sovereignty. This, however, by no means is a rejection of the importance of the original meaning of the Fifth Amendment. The Majority opinion deals extensively with the argument that the doctrine of separate sovereignty goes against the English common law understanding of the rule against double jeopardy pre-dating the adoption of the Fifth Amendment, but it rejects this argument as both unsubstantiated (Part IIIA) as well against a long strain of US cases going back as far as 1847. The Majority invokes the case of Fox v. Ohio, 5 How. 410 (1847) where, at 435, the Supreme Court held that “offences falling within the competency of different authorities to restrain or punish them would not properly be subjected to the consequences which those authorities might ordain and affix to their perpetration.” (Part IIB).

Finally, Justice Alito adds yet another layer of argument – federalism. For him, States could be compared to foreign countries in terms of their sovereignty vis-a-vis the federal government. Justice Alito argues that in the absence of the doctrine of separate sovereignty, American courts would not be able to try people who have been tried in foreign courts as this would inevitably trigger the Double Jeopardy Clause. In fact, he states that “[the] Constitution rests on the principle that the people are sovereign, but that does not mean that they have conferred all the attributes of sovereignty on a single government” (Part IIB).

On the other hand, Justice Gorsuch, in his Dissenting opinion, rejects the Majority opinion as grounded nowhere in the Constitution. He argues that the history of the western legal tradition, the legislative history of the Fifth Amendment as well as the English common law understanding of the rule against double jeopardy all point to the word ‘offence’ as not having any technical meaning allowing for a double set of prosecution by a State and the federal governments.

Interestingly, Justice Thomas, used his Concurring opinion, submitted in addition to the Majority opinion which he joined, to re-emphasise his latest criticism of the doctrine of stare decisis as an inviolable rule:

“Given that the primary role of federal courts today is to interpret legal texts with ascertainable meanings, precedent plays a different role in our exercise of the ‘judicial Power’ than it did at common law. In my view, if the Court encounters a decision that is demonstrably erroneous—i.e., one that is not a permissible interpretation of the text—the Court should correct the error, regardless of whether other factors support overruling the precedent. Federal courts may (but need not) adhere to an incorrect decision as precedent, but only when traditional tools of legal interpretation show that the earlier decision adopted a textually permissible interpretation of the law. ” (Part C)

Beyond the impact on the Double Jeopardy Clause, Gamble v. United States appears to be important as it falls within the recent trend of cases decided by the US Supreme Court based on some form of historical approach. In this case, both the Majority and the Dissent argued mainly over the history of the western legal tradition, the legislative history of the Fifth Amendment and the old English common law understanding of the rule against double jeopardy. Crucially, this includes not only the five originalists, but also the four liberals.

Surveillance Court Rulings Subject to Judicial Review (UKSC)

On 15 May 2019, the UK Supreme Court ruled 4-3, in R (on the application of Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22, that rulings of the Investigatory Powers Tribunal are subject to the supervisory jurisdiction of the High Court on the point of law. In its ruling, the Supreme Court discusses a common law presumption against clauses restricting access to judicial review and, more crucially, the limits of the doctrine of parliamentary sovereignty.

The Investigatory Powers Tribunal is a specialist tribunal created by the Regulation of Investigatory Powers Act 2000 (RIPA 2000) and tasked with supervising intelligence surveillance and other conduct of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters (GCHQ). Under RIPA 2000, s 67(8), rulings of the Investigatory Powers Tribunal seem to be final:

“Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.”

However, Lord Carnwath, in his Majority Opinion, held that judgments containing errors of law were not ‘determinations’ within the meaning of RIPA 2000, s 67(8) and the supervisory jurisdiction was therefore not ousted. This interpretation flows from the old decisions of the House of Lords in Anisminic v Foreign Compensation Commission [1969] 2 AC 14 and O’Reilly v Mackman [1983] UKHL 1 which established that:

“…If a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question, ie, one into which it was not empowered to inquire and so had no jurisdiction to determine. Its purported ‘determination’, not being a ‘determination’ within the meaning of the empowering legislation, was accordingly a nullity…” [para 54]

Therefore, Lord Carnwath held that ‘…a determination arrived at on an erroneous view of the relevant law was not a “determination” within the meaning of an ouster clause...’ [para 54]. This approach is consistent with a general common law presumption against ousting the jurisdiction of the High Court [para 107].

However, in his Majority Opinion, Lord Carnwath moves beyond the common law presumption against clauses restricting access to judicial review and the concept of ‘nullity’ determinations and suggests that the question of the supervisory jurisdiction of the High Court should come down to the concept of the rule of law:

“This proposition should be seen as based, not on such elusive concepts as jurisdiction (wide or narrow), ultra vires, or nullity, but rather as a natural application of the constitutional principle of the rule of law (as affirmed by section 1 of the [Constitutional Reform Act] 2005), and as an essential counterpart to the power of Parliament to make law. The constitutional roles both of Parliament, as the maker of the law, and of the High Court, and ultimately of the appellate courts, as the guardians and interpreters of that law, are thus respected…” [para 132]

Furthermore:

“…Arguably, following the logic of the reasoning in R (Cart) [v Upper Tribunal [2011] UKSC 28], it may be thought implicit in the constitutional framework for the rule of law, as established by the Senior Courts Act 1981 and the Constitutional Reform Act 2005, that legal issues of general importance should be reviewable by the appellate courts; and that an ouster clause which purports to exclude that possibility cannot, consistently with the rule of law, be upheld…” [para 142]

Consequently, Lord Carnwath concluded that:

“…[A]lthough it is not necessary to decide the point, I see a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law. In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law.” [para 144]

The Majority Opinion in R (on the application of Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22 constitutes a vital part of UK constitutional jurisprudence on the doctrine of parliamentary sovereignty as it seems to suggest that there are some ultimate limits as to what Parliament can and cannot do. The Supreme Court appears to suggest that the concept of the rule of law might pose limits to the Parliament’s power to regulate access to judicial review. It is not clear what those limits are but the Court points to the fact that unlike the Court of Appeal and the Supreme Court, which are the creation of statutes, the High Court enjoys the original common law jurisdiction [para 141] and, although there is no constitutional right of appeal form the High Court, its supervisory jurisdiction is somehow special because ‘[a]t least since the time of Blackstone, this has been a central part of the function of the High Court as constitutional guardian of the rule of law’ [para 139]. The Supreme Court therefore recognises the long history of the supervisory jurisdiction of the High Court which was established at the end of the 13th century as the King’s Bench and its ‘supervisory role was preserved by section 16 of the Judicature Act 1873 which vested the common law powers of the Queen’s Bench in the newly created High Court. Those powers were in turn preserved by section 19 of the Senior Courts Act 1981‘ [para 33].

Although the Supreme Court points to the Judicature Act 1873the Senior Courts Act 1981 and the Constitutional Reform Act 2005 as a potential source of the rule of law, those statutes only recognised the powers of the High Court and the concept of the rule of law, rather than created them. The Judicature Act 1873 combined the Court of Chancery, the Court of Queen’s / King’s Bench, the Court of Common Pleas, the Court of Exchequer, the High Court of Admiralty, the Court of Probate and the Court of Divorce and Matrimonial Causes into the Supreme Court of Judicature, composed of the High Court with original jurisdiction and the Court of Appeal with appellate jurisdiction. The Senior Courts Act 1981, s 19 provided that ‘(2) [s]ubject to the provisions of this Act, there shall be exercisable by the High Court – (b) all such other jurisdiction (whether civil or criminal) as was exercisable by it immediately before the commencement of this Act…’  while the Constitutional Reform Act 2005, s 1 provided that ‘[t]his Act does not adversely affect – (a) the existing constitutional principle of the rule of law…” None of these Acts created supervisory jurisdiction of the High Court, nor did they established the rule of law as one of the principles of UK constitutional law but rather recognised what had already existed.

Finally, the Supreme Court confirmes that as ‘constitutional statutes’, the Judicature Act 1873the Senior Courts Act 1981 and the Constitutional Reform Act 2005 are immune to implied repeal by Parliament [para 120]. Consequently, Parliament cannot implicitly modify rules governing the supervisory jurisdiction of the High Court. The question remains, what would happen if Parliament was to expressly abolish that jurisdiction or the concept of the rule of law in its entirety. It is not clear from the judgment whether Parliament can abolish something that it has not created but only recognised as already in existence.

SCOTUS to Hear Cross-shaped War Memorial Case

On 2 November 2018, the US Supreme Court issued a writ of certiorari to the Court of Appeals for the 4th Circuit in the case of American Humanist Association v Maryland-National Capital Park and Planning Commission No. 15-2597 2017, thereby agreeing to hear the case of a 93-year-old war memorial in the shape of a cross (SCOTUS Blog). The memorial was completed in 1925 to commemorate 49 local residents who had died in World War I. In 2014, the American Humanist Association sued Maryland public bodies responsible for the upkeep of the monument alleging that it “discriminates against patriotic soldiers who are not Christian, sending a callous message to non-Christians that Christians are worthy of veneration while they may as well be forgotten” (Fox News). In 2017, the Court of Appeals for the 4th Circuit ruled 2-1 in the case of American Humanist Association v Maryland-National Capital Park and Planning Commission No. 15-2597 2017 that even assuming that the monument had some nonreligious function, “the sectarian elements easily overwhelm the secular ones” and that “the cross is by far the most prominent monument in the area, conspicuously displayed at a busy intersection” [p22] and as such its presence on a public land violated the Establishment Clause of the First Amendment. In March 2018 the Court sitting en benc refused to reconsider the case and Maryland petitioned the Supreme Court for a permission to appeal (The Washington Post).

The jurisprudence of the US Supreme Court in cases concerning the Establishment Clause is far from being clear. The Court has struggled over the years to agree on a set of precise directions as to when a religious symbol on a public land would violate the First Amendment. This has led to confusing rulings whereby some symbols have been upheld and others not. For instance, in 2005, in the case of Van Orden v. Perry, 545 U.S. 677, the Court ruled 5-4 that a Ten Commandments monolith on the Texas State Capitol grounds did not violate the Constitution. On the other hand, on the same day in 2005, in the case of McCreary County v. ACLU of Kentucky, 545 U.S. 844, the Court also ruled 5-4 that a Ten Commandments display at the McCreary County courthouse in Kentucky did violate the First Amendment. The two cases were extremely similar yet the Court reached the opposite conclusions. In both cases it was Justice Breyer who acted as the Swing Vote. With those two cases, the US Supreme Court has sent mixed signals to lower courts on the subject of the Establishment Clause. Nevertheless, the Court is now almost 15 years older and its composition has also changed, presumably became more conservative in nature. As a result, the majority of the bench might now have enough votes to articulate some clear guiding principles as to how lower courts should deal with similar cases in the future.