Tagged: Lawsuit

Texas ACA Opinion or “’If they would rather die,’ said Scrooge, ‘they had better do it, and decrease the surplus population’” or did Judge O’Connor go to law school?


On Friday, Judge Reed O’Connor issued an Opinion in Texas v. United States that turned the ACA into the baby being thrown out with the bathwater.

Here are some articles that I think do a good job of highlighting the problems with the Opinion:

And here is my bulleted “summary.” It’s obscenely long, itself, but shorter than the 55-page Opinion O’Connor issued. Also – I wrote fast. Apologies for typos/grammar errors, changes in tense, etc.

I. Background

Here the Court runs through the history of the ACA, NFIB, and the TCJA.


  • Became law in 2010 with the purpose of achieving “near universal” health coverage and lowering health insurance premiums through the creation of effective health insurance markets.
  • Required minimum coverage (Individual Mandate) and imposed a tax on people who were subject to the requirement but chose to disobey ($695 or 2.5% percent of family’s household income, whoever was higher).
  • Exceptions to the mandate included those who had a religious exemption, non-citizens, legal aliens, and people in jail.
  • Also five categories of people exempted from the shared responsibility tax but not the individual mandate (i.e., must maintain minimum coverage but not taxed for a failure to do so).
  • Protects people with preexisting conditions – by requiring healthy people to have health insurance and including them in the risk pool, insurance premiums across the board were to decrease.
  • Includes the “guaranteed-issue” and “community-rating” provisions. The first requires insurers to “accept every employer and individual in the State that applies for . . . coverage;” the latter prohibits insurers from charging higher rates to individuals based on age, sex, health status, or other factors.
  • Requires employers with more than 50 employees to provide insurance or pay a penalty.
  • Allows dependent children to remain on their parents’ insurance until age 26.
  • Reduced hospital reimbursements by more than $200 billion over 10 years.
  • Created health insurance exchanges and expanded the scope of Medicaid, covering millions more.

B. NFIB (National Federation of Independent Businesses v. Sebelius (2012))

  • After ACA was enacted, 26 states, individuals, and an organization of independent businesses challenged its constitutionality.
  • Main argument was the ACA’s Individual Mandate and the Medicaid expansion exceeded Congress’s powers.
  • Supreme Court sort of agreed and said the Individual Mandate was beyond the Interstate Commerce Power BUT fell under Congress’s power to impose taxes.
  • Incredibly complicated, splintered decision from SCOTUS.
  • Part III-A: Roberts stated that the Interstate Commerce Power does not factor in here, because it regulates “activity” not “inactivity” (i.e., people NOT buying insurance is an inactivity). Roberts said that the Constitution gave Congress the power to regulate commerce, not compel it.
  • No other Justice joined this particular part of Justice Robert’s opinion, BUT the dissent found the same on the Interstate Commerce Clause (ICC) question, so the majority of SCOTUS found that the Individual Mandate was unconstitutional under this particular Clause.
  • Part III-B: Roberts found that because the Individual Mandate was impermissible under the ICC, SCOTUS had to consider whether it was constitutional under the Tax Power.
  • Part III-C: Joined by Ginsburg, Breyer, Sotomayor, and Kagan. Found that the Individual Mandate and associated shared-responsibility payment was indeed a constitutional exercise of Congress’s Tax Power. The analysis here focused mainly on the payment rather than on the Mandate.
  • Part IV: Roberts was joined by Breyer and Kagan in finding that the Medicaid-expansion unconstitutionally coerced States in compliance, but because there was a sever ability clause in the law, the unconstitutional portion of the Medicaid provision could be severed. Ginsburg and Sotomayor disagreed that tis was unconstitutionally coercive, but agreed that IF the provision was unconstitutional, it could be severed.
  • Then there was a joint dissent!
  • In it, Scalia, Kennedy, Thomas, and Alito agreed with Roberts that the Individual Mandate exceeds Congress’s powers under the Interstate Commerce and Necessary and Proper Clauses, but they felt that it could NOT be characterized as a tax.
  • This is primarily because (according to them), Congress had rejected an earlier version of the ACA that “imposed a tax instead of a requirement-with-penalty.” Therefore, characterizing the Mandate as a tax ran afoul of Congressional intent.
  • This dissent addressed whether the entire ACA should fall on the basis of the Mandates’ and expansion’s unconstitutionality.
  • They said yes, because there was no way for the ACA to function without its (according to them) unconstitutional parts.

C. The TCJA (Tax Cuts and Jobs Act)

  • Passed and signed into law in 2017.
  • Reduced the ACA’s shared-responsibility payment to zero, effective January 1, 2019 but took no other action pertaining to the ACA.

II. Procedural Background (of THIS case)

  • Plaintiffs: Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, Governor Paul LePage of Maine, and individuals Neill Hurley and John Nantz.
  • Defendants: USA, US Department of Health and Human Services, Alex Azar (in his capacity as Secretary of HHS), the IRS, and David Kautter (as Acting Commissioner of the IRS).
  • Intervenor Defendants: California, Connecticut, Delaware, Hawaii, Illinois, Kentucky, Massachusetts, Minnesota, New Jersy, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, and Washington D.C.
  • Plaintiffs: Wanted a declaration the Individual Mandate – as amended by the TCJA – is unconstitutional and thereby makes the rest of the ACA void (due to not being severable).
  • Their theory is that because the TCJA removed the tax payment, the tax-based saving construction developed in NFIB no longer applies. They adhere to the joint dissenters in the NFIB case, who argued that the Individual Mandate is inseverable from the rest of the ACA.
  • Federal defendants agree with the Plaintiffs.
  • The Intervenor Defendants disagree with both of the above.
  • Plaintiffs wanted a Preliminary Injunction; Federal Defendants wanted a judgment.
  • Court was down to resolve the issues on summary judgment.
  • Plaintiffs said that even though they WANT a preliminary injunction, they’d be okay with the court “simultaneously considering [their] application as a motion for partial summary judgment on the constitutionality of the ACA’s mandate.”
  • The Intervenor Defendants opposed converting the preliminary injunction briefing to a summary judgment ruling because they wanted to more fully brief the issues implicated: Article III standing, the Interstate Commerce Clause, and the scope of injunctive relief.
  • Federal Defendants asked the Court to wait to do anything until AFTER the enrollment period had concluded so there was no disruption.
  • The Court [was an ass, in my opinion] and decided that the Intervenor Defendants had adequately briefed their issues and decided to construe the application as a motion for partial summary judgment.

III. Legal Standards (Gonna whiz through this stuff – read the Opinion for more)

A. Article III Standing

  • Plaintiffs must demonstrate that they have met the requirements of standing because they are the party invoking the Court’s jurisdiction.

B. Summary Judgment

  • Moving party must show that the pleadings and evidence show “that there is no genuine dispute as to any material fact” and that they are “entitled to judgment as a matter of law.”
  • Court has to construe all reasonable doubts and inferences in favor of nonmoving party.
  • If there is conflicting evidence or inferences, court must deny the motion.

IV. Analysis

  • Three inquiries and conclusions:
    1) Parties satisfy the applicable standing requirements.
    2) The Individual Mandate can no longer be seen as an exercise of Congress’s Tax Power; it is unconstitutional.
    3) The Individual Mandate is essential to and inseverable from the remainder of the ACA.

A. Article III Standing

[Skipping over this because it’s not the meat and potatoes of this Opinion, or what most people are particularly interested in.]

B. Individual Mandate

  • TL;DR in this section is “The Court finds that both plain test and Supreme Court precedent dictate that the Individual Mandate is unconstitutional under either provision [Tax Power and Interstate Commerce Clause]”
  • The Court frames this is flowery language pulled from iconic past SCOTUS cases like Marbury v. Madison and McCulluch v. Maryland. I’ve not done full due diligence yet, but I’m raising an eyebrow at the litany of contextless quotes.

1. Tax Power

  • The Court sets forth the following characterization of the problem: “The question here is whether an eliminated shared-responsibility exaction continues to justify construing the Individual Mandate as an exercise of Congress’s Tax Power to implement Section 5000A [of the ACA].”
  • The Plaintiffs and Federal Defendants answered that question with “no.”
  • The Intervenor Defendants argued that because, among other things, the previously paid shared-responsibility payments would make their way into the treasury for years to come, Section 5000A could still be fairly read as a tax.
  • Important to note that Section 5000A has several subsections.
  • 5000A(a) is the Individual Mandate. 5000A(b) is the shared-responsibility payment. 5000A(c) is the subjection that actually sets the amount of the payment and it is the subsection that was actually affected (zeroed-out) by the TCJA.
  • To recap: Plaintiffs are challenging the Individual Mandate. Not the payment. Not the amount of the payment.
  • The Plaintiffs argue that with the passage of the TCJA, the only part of 5000A that stands is the Mandate and, standing alone, it is unconstitutional.
  • In order to get to its ultimate the decision, the Court has to spend a lot of time trying to thread a needle: acknowledging the close relationship/interdependence between the Individual Mandate and the shared-responsibility tax while also trying to hammer home the idea that the Individual Mandate and the payment are “two very different animals.”
  • In sum, the Court’s opinion is that because the Individual Mandate no longer triggers a tax, because the shared-responsibility payment is zero, the Individual Mandate is unconstitutional. [But the Court conveniently never acknowledges that fact that a directive with no consequences is hardly a directive at all. Law says “buy insurance.” Person does not. Nothing happens. There is no constitutional violation anywhere in that equation.]
  • [Worth noting also that the Court ALSO ignores precedent from the 5th Circuit that holds that “an unused power to tax” doesn’t make an exercise of the taxing power unconstitutional. And that’s exactly what this is: Congress didn’t eliminate the Mandate or any of the subsections. Instead, it changed the AMOUNT of tax to $0. Arguably, that is very much an “unused power to tax” and constitutional in the 5th Circuit, WHERE TEXAS IS.]

2. Interstate Commerce Power

  • Intervenor Defendants argued that because there is no longer a tax, the Individual Mandate can be read as constitutional under the Interstate Commerce Clause. Remember, SCOTUS had an issue with the fact that Congress was ordering people to spend money. That Court found that while Congress can regulate the commerce stream, it can’t force participation in it.
  • However, now – arguably – there is no forced participation. It’s dead in the water. The Intervenor Defendants argued that people still have a choice they’ve always had – buy insurance or pay the tax. But now the tax is zero, so the choice is, effectively, buy insurance or don’t. *shrug*
  • The Court basically brushes this off and finds that the Intervenor Defendants’ position is illogical.
  • Oddly, the Court essentially concedes the point that the Individual Mandate doesn’t do anything in its (the Court’s) attempt to argue that the mandate can’t possibly fall under the regulation of commerce because to regulate is “to govern direct according to rule” and to “bring under the control of law or constituted authority” and the mandate falls short of all of this actions.
  • The Court also defers to the Plaintiffs’ statement that they “feel compelled” to comply with the law. Why? Simply because it exists, not because there are any penalties. [Sounds like a personal problem to me.]
  • The Court finds the Plaintiffs’ feelings unsurprising and says, “It is the attribute of law, of course, that it binds; it states a rule that will be regarded as compulsory for all who come within its jurisdiction.” (This is a quotation, not from a law book, but from “First Things: An Inquiry Into the First Principles of Morals and Justice.”)
  • The Court then says that law “has an enormous influence” on norms and conduct. [But again, neatly skirting the fact that there ARE NO CONSEQUENCES for ignoring this section of the ACA.]
  • The Court acknowledges that undoubtedly more people will choose not to comply with the Individual Mandate, but says that nonetheless, it is still law and people will feel bound.
  • [Mind you, nowhere in this entire section of the Opinion thus far does the Court quote any type of legal precedent. For anything.]
  • Finally, towards the end, the Court acknowledges that the Individual Mandate is essentially empty verbiage. However, because the words are still in the law and Congress didn’t eliminate them when it changed the shared-payment amount, they are still law.
  • The Court does us the favor of whipping out the dictionary again and defining some words like “requirement” and “shall” over the course of two paragraphs.
  • Then the Court primarily relies on NFIB for its argument that the Individual Mandate is still binding law and quotes Justice Roberts that the mandate “reads more naturally as a command to buy insurance.”
  • [Remember, NFIB was case that was decided when there were actual penalties for the Individual Mandate being ignored. The mandate was unconstitutional under the Interstate Commerce Clause because it forced people to spend money. The root of SCOTUS’s entire discussion of the mandate in NFIB was colored by the reality of the law as it existed THEN. Essentially, the Court here applies the context of 2012 to the current state of affairs in 2017 and appears to presume perfect application despite starkly different facts.]
  • Again, the Court does not quote from any legal decision in its analysis here – only NFIB and allusions to the text of the ACA.
  • The Court finds, “the Individual Mandate is no longer fairly readable as an exercise of Congress’s Tax Power and continues to be unsustainable under Congress’s Interstate Commerce Power. The Court therefore finds the Individual Mandate, unmoored from a tax, is unconstitutional.”
  • It then granted the Plaintiffs’ claim for declaratory relief as to Count I.

C. Severability

  • TL;DR: Because the mandate is out, so is the whole ACA!

1. Severability Doctrine

  • Essentially, the Court determined that the Individual Mandate was not severable from the rest of the ACA.
  • The Plaintiffs argued that it was inseverable. The Intervenor Defendants argued that it was severable.
  • The severability rule: Severability is only possible where “an act of Congress contains unobjectionable provisions, separable from those found to be unconstitutional.”
  • Interestingly, despite this case arising from the activities of the 2017 Congress, the Court instead primarily looks at and analyzes the actions of the 2010 Congress – the Congress that passed the law (a law which has now been altered by a different Congress).

2. Intent of the 2010 Congress

  • I’m not going to summarize everything the Court said about 2010’s Congress’s intent, but the discussion starts on page 37 and you should read it if you have time.

a. ACA’s Plain Text

  • Chief quotes: Congress intended to “significantly increas[e] healthcare coverage, lower health insurance premiums,” ensure that “improved health insurance products that are guaranteed issue,”and ensure that such health insurance products “do not exclude coverage of pre-existing conditions.”
  • And: Congress knew that “[i]n the absence of the requirement, some individuals would make an economic and financial decision to forego health insurance coverage and attempt to self-insure, which increases financial risks to households and medical providers.”
  • I.e., the Court highlights that the 2010 Congress intense to use the Individual Mandate and the shared-responsibility cost to achieve the above goals. The Individual Mandate was also intended [by the 2010 Congress] to reduce the number of uninsured, lower health insurance premiums, and improve financial security for families.
  • This, the Court, argued, is proof that the Individual Mandate is inseverable from the rest of the ACA. Greater proof still is the following [from the 2010 Congress]: “The requirement is an essential part of this larger regulation of economic activity, and the absence of the requirement would undercut Federal regulation of the health insurance market.”
  • The Court concludes this section by saying “on the unambiguous enacted text alone, the Court finds the Individual Mandate is inseverable from the Act to which it is essential.”

b. SCOTUS’s ACA Decisions

  • Again, looking back in time this Court finds that all nine Supreme Court Justices agreed that the Individual Mandate is inseverable from at the least the pre-existing condition provisions.
  • We rehash NFIB again. We address interceding cases between then and now. (As before, I’m not going to summarize all of this – it starts on page 41.)
  • Important quotation from this Court: “As did the Chief Justice, then, Justices Ginsburg, Breyer, Kagan, and Sotomayor all understood what Congress understood: Without the Individual Mandate, the guaranteed-issue and community-rating provisions ‘could not work.’” [We are back in 2010-2012 land again, where there was actually a tax being levied.]
  • Then the Court brings up King v. Burwell, a 2015 case, and points to elements of that Opinion that reinforce the Justices’ severability conclusions in NFIB: “The Supreme Court stated unequivocally: ‘Congress found that the guaranteed issue and community rating requirements would not work without the coverage requirement.’” [2010 Congress, mind you.]
  • In conclusion, this Court reiterates the Supreme Court’s finding on what was ostensibly a different law and finds “The Individual Mandate is essential to the ACA.”

c. The Individual Mandate is Inseverable from the Entire ACA

  • “The ACA’s text and the Supreme Court’s decisions in NFIB and King thus make clear the Individual Mandate is inseverable from the ACA. . . . [T]he Individual Mandate was essential to the ACA’s architecture.”
  • The Court embarks on a somewhat long-winded reiteration of its point, saying that even if it were to poke at provisions of the ACA individually, text and precedent would be reinforced.
  • It finds that upholding the ACA in the absence of the Individual Mandate would change the “effect” of the ACA “as a whole.”
  • If the mandate falls, and especially if the pre-existing condition provisions fall [remember, that hasn’t happened yet; that’s not even the focus of this case], upholding subsidies and exchanges would “transform the ACA into a law that subsidizes the kinds of discriminatory products Congress sought to abolish at, presumably, the re-inflated prices it sought to suppress.” [To me this just reads as: healthcare would return to the way it was prior to the ACA.]
  • The Court again beats on the drum of the 2010 Congressional intent – the Individual Mandate “is essential to creating effective health insurance markets that do not require underwriting and eliminate its associated administrative costs.” [What’s interesting to me about this is that, as laid out by this Court above, there were more goals to the ACA than creating this specific kind of health insurance market – see my list in the very first section of this summary regarding the ACA. The Court just kind of ignores all of that here and frames the ACA in a very narrow way.]
  • “In sum, the Individual Mandate ‘is so interwoven with [the ACA’s] regulations that they cannot be separated. None of them can stand.’” [Also, note that the Court is quoting a 1922 case about a prohibitive tax on futures contracts for grain and filling it in with “the ACA” to make it work here.]
  • From page 50 to 52, the Court goes BACK through 2010 Congress and again leans on Wallace (the 1922 case). Feel free to read.

3. The Intent of the 2017 Congress [HERE we go…oh wait]

  • The Intervenor Defendants argued that because Congress only eliminated the shared-responsibility payment but left everything else about the ACA intact, the 2017 Congress intended to preserve the balance of the ACA.
  • The Court responds with “But consider what Congress did not do in 2017 – or ever.” Here, it asserts that because the 2017 Congress did not repeal the mandate, it clearly recognized that the Individual Mandate was essential to the ACA. [Okay, pause. Has this judge not been paying attention to Congress over the past couple of years? Where it was regularly insisting that it wanted to throw-out the Individual Mandate? In fact, Congress absolutely meant to get rid of the mandate – and that’s exactly what it did when it eliminated the shared-responsibly payment that gave it teeth.]
  • “The Court finds the 2017 Congress had no intent with respect to the Individual Mandate’s severability. But even if it did, the Court would find that ‘here we know exactly what Congress intended based on what Congress actually did.’” [Yes, it kneecapped the mandate, effectively removing it from the ACA…]

4. Severability Conclusion

  • [Say it with me now] “The Court finds the Individual Mandate ‘is essential to’ and inseverable from ‘the other provisions of’ the ACA.”

V. Conclusion

  • “For the reasons stated above, the Court grants Plaintiffs partial summary judgment and declares the Individual Mandate . . . UNCONSTITUTIONAL. Further, the Court declares the remaining provisions of the ACA . . . are INSEVERABLE and therefore INVALID. The Court GRANTS Plaintiffs’ claim for declaratory relief in Count I of the Amended Complain.”

The Latest in Lawsuits: Secrecy and Hijacking

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A new suit requesting declaratory relief, injunctive relief, and mandamus relief has been filed by Citizens for Responsibility and Ethics in Washington (CREW) and the National Security Archive (NSA). (Complaint)

CREW and NSA have brought a civil action against Trump under the Presidential Records Act (PRA), the Declaratory Judgment Act, and Article II, Section 3 of the Constitution (the President has a duty to “take care that the laws be faithfully executed”). The action challenges the actions of Trump, his staff, and the Executive Office of the President that “seek to evade transparency and government accountability.” This is the politest way ever of saying that Trump and his palarounds are liars who are frantically spinning “alternate facts” and trying to hide their actions and information from reporters and the public. More insidious is the notion that the Executive Office of the President is hijacking the roles of executive agencies and, in doing so, avoiding transparency and accountability.

CREW and NSA have two main challenges in their suit.

First, they are challenging the Defendants’ communications practices that allegedly “knowingly prevent the proper preservation of records” that the Defendants either generate or receive when they are carrying out constitutional, statutory, or other official duties of the President. So, basically, the Plaintiffs are arguing that the Trump ’n’ cabal are actively doing things that keeping official records from being properly kept as required by law.

Second, Plaintiffs are asserting the Defendants’ are overstepping the boundaries of their power by usurping agency duties and responsibilities through consolidating power in the White House – if proven, this is also illegal. The Plaintiffs argue that the Executive Orders coming out of the White House are cloaked in secrecy which is preventing federal agencies from being able to comply with their statutory duties under three statutes: the Federal Records Act (FRA), the Administrative Procedure Act (APA), and the Freedom of Information Act (FOIA).

Plaintiffs make the point that their lawsuit is coming at a time of suspect activity in the Executive Office. Some examples of potential misconduct and questionable decision-making that CREW and NSA point at are the pressuring of James Comey to terminate the FBI’s investigation of former National Security Advisor Michael Flynn, as well as Trump’s firing of Comey after Comey refused to terminate the investigation. Plaintiffs argue that the question of whether these actions were illegal may only be resolved through access to contemporaneous records that explain what Trump did and why. Therefore, there is a huge need for transparency right now, specifically.

Our government’s checks and balances include ones that are implemented through congressional and judicial oversight. In order for Congress and the judiciary to keep tabs on what’s going on within the Executive Branch, they need to have access to records of the President’s actions. Compliance with record-keeping responsibilities under the PRA and the FRA is incredibly important for the functioning of our government.

CREW and NSA suggest that Trump and his dudes are either ignoring or just full-on flouting their responsibilities under the two Acts. Plaintiffs allege (based on information they claim to have)that the White House is using certain email messaging applications that destroy messages as soon as they are read, regardless of whether those messages are presidential records. Some of Trump’s tweets, subject to federal record-keeping obligations, have been deleted. Additionally, Plaintiffs assert that Trump has implied that he’s been secretly recording conversations with Administration officials – and who the heck knows whether those recordings are being preserved. There are also allegations, sourced from at least one news report, that when ongoing congressional and FBI investigations were disclosed, White House officials purged their phones of potentially compromising information.

Interjection: YOU GUYS. If this stuff is true, it’s a big deal. If the White House is using software to erase the contents of messages upon their being read, if phones are being purged…this is BAD.

Plaintiffs extend their challenge to the alleged [unconstitutional] consolidation of power in the White House. They argue that the centralization of government decision-making within the White House ensures that decisions normally made or implemented by Executive Branch agencies are able to “evade disclosure under laws like the FOIA, preservation under laws like the FRA, and public review and comment under the APA.”

Essentially, this Trump-power-absorption is wreaking havoc on the order of operations of our government. Records that the public would ordinarily have a right to access under the law (because ordinarily, the records would be agency records subject to disclosure under FOIA) are now improperly cloaked as presidential records subject to the President’s exclusive control and beyond the reach of the public. Additionally, decisions that would ordinarily be subject to review under the APA (for example, when agencies make decisions about propagating or changing regulations, those regulations must go through a public notice and comment period, accessible to the public at large) are also shielded from review as “presidential decisions.”

This is insidious. It is also scary. In simple terms, if what the Plaintiffs are alleging is true, the White House is eradicating a paper trail. They’re enabling themselves to act with impunity because without a trail, it will be very, very, very difficult to demand any kind of accountability.

By acting as they have, Trump’s Troops have prevented federal agencies from complying with the statutory responsibilities. Their actions have also violated the constitutional requirement that the President take care that the law be faithfully executed.

Plaintiffs have a laundry list of facts that they have included in their Complaint.

Included in this list (which you can read yourself in its complete form, beginning on page 13 of the Complaint – along with links to related articles) are:

  • The Executive Office’s issuance of gag orders on federal agencies.
  • Trump requiring congressional staffers to sign non-disclosure agreements before allowing them to help him draft his first Muslim travel ban executive order.
  • Making the White House visitor logs private.
  • Trump’s various claims that he has continued his private sector practice of taping conversations.
  • Trump’s (and his staffers’) heavy use of electronic messaging tools and platforms to conduct presidential and federal business.
  • The Administration’s disregard for the NARA’s guidance on using electronic communication and the use by some staffers of Signal, an encrypted peer-to-peer messaging application, to communicate about presidential or federal business.
  • Signal has a disappearing message function that allows a user to set a timer to delete the message from all devices.
  • Some of Trump’s staffers may be using the chat app Confide, which erases messages as soon as they’re read.
  • There are no policies or procedures in place to record any of these conversations and communications, which are arguably Presidential records.
  • Congress has become concerned with these secret, likely erased, communications. Jason Chaffetz (yeah, that guy) wrote a letter requesting that Trump identify all policies and procedures related to non-official electronic messaging (email, texting, social media, etc.) and official electronic messaging, and policies and procedures related to properly securing and preserving communications and presidential records.
  • Prior to March 24, 2017, Trump’s staff purged their phones because they expected to be subpoenaed in connection to the various investigations in which Trump was embroiled.
  • Trump uses his personal Twitter account, not the President’s account.
  • The White House should be capturing all Tweets from both the personal and Presidential account. It is not, however.
  • Trump has issued at least 43 executive orders. Executive orders are meant to be issued by and signed by the President and the President alone. Government personnel outside of the President and his staff have had significant roles in preparing, reviewing, and commenting on draft executive orders, including executive agencies. (This is important because this suggests that agency rules are masquerading as executive orders in order to circumvent the mandated rulemaking process under the APA.)

The Plaintffs’ claims are as follows:

  1. For a Declaratory Judgment that the knowing use by defendants of messaging apps that prevent the preservation of presidential records violates the Presidential Records Act
  2. For a Declaratory Judgment that the failure of the President, his staff, and the EOP to issue guidelines concerning the use of messaging apps that prevent document preservation violates the Presidential Records Act
  3. For a Writ of Mandamus and Injunctive Relief compelling President Trump, his staff, and the EO to comply with their non-discretionary duties under the PRA
  4. For a Declaratory Judgment that Defendants’ use of the executive order process to remove records and rulemaking from the FRA and FOIA and the APA is contrary to law and violates the President’s constitutional obligation to take care to faithfully execute the law

They want the court to:

  1. Declare that the Defendants’ knowing use of messaging apps that prevent the preservation of presidential records violates the Presidential Records Act;
  2. Declare that the Defendants’ failure to issue guidelines concerning the use of messaging apps that prevent document preservation violates the Presidential Records Act;
  3. Order all Defendants, in the form of injunctive and mandamus relief, to refrain from using methods of communication that destroy records before any determination can be made as to whether they should be preserved as presidential records under the Presidential Records Act;
  4. Declare that the Defendants’ use of the executive order process to remove records from the Federal Records Act and public access under the Freedom of Information Act, and the rulemaking process of the Administrative Procedure Act, are contrary to law and the President’s constitutional obligation to take care that the law be faithfully executed; and
  5. Grant such other and further relief as the Court may deem just and proper.


Keep an eye on this one, guys. It’s not headline news yet, but CREW’s and NSA’s assertions run deep and are weighty claims. If their allegations are true, then Trump is hijacking the government in a very, very serious way, and erasing the paper trail as he does it.


Some “Brief” (because there’s no such thing as truly brief where laws are concerned) Background on the Laws at Issue

(I’ve also included citations to the laws, so anyone interested can sift through. Otherwise, just skip right over ‘em.)

Presidential Records Act

The PRA was enacted in 1978 in response to Watergate. It is meant to establish public ownership of presidential and vice presidential records, impose record-keeping requirements on the President and Vice President, and to the National Archives and Records Administration (NARA) to preserve presidential records and make them publicly available. The PRA states that “[t]he United States shall reserve and retain complete ownership, possession, and control of Presidential records[.]” 44 U.S.C. § 2202.

The Act directs the President to “take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records[.]” 44 U.S.C. § 2203(a). In other words – the President is to document everything. Period.

“Presidential records” is broadly defined to include documentary materials “created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President” in conducting activities related to the President’s constitutional, statutory, or ceremonial duties. 44 U.S.C. § 2201(2). In other words…all the President’s elbow-rubbers are included here. Excluded from presidential records are “personal records” which are defined as those “of a purely private or nonpublic character” unrelated to the President’s constitutional, statutory, or ceremonial duties. 44 U.S.C. § 2201(3). I imagine that if a President wanted to write Harry Potter fan fiction under a pseudonym, it would fall under “personal records.”

“Documentary materials” is also broadly defined and includes “electronic or mechanical recordation’s.” 44 U.S.C. § 2201(1). The PRA’s legislative history explains that Congress intended the scope of “Presidential records” to be “very broad since a great number of what might ordinarily be construed as one’s private activities are, because of the nature of the presidency, considered to be of public nature, i.e., they effect the discharge of his official or ceremonial duties.” (So maybe that HP fanfic would be a Presidential record after all, depending on its contents.) The broad definition of “documentary materials” also helps ensure that the President and NARA preserve records that have or, maybe more importantly, are later found to have, great historical value. This way, documents default to “Presidential records” – save first, ask questions later.

There’s also a whole process under the PRA for the destruction of presidential records. The only way the Prez gets to destroy his or her non-personal records is after s/he has affirmatively determined that the records “no longer have administrative, historical, or evidentiary value[.] 44 U.S.C. § 2203(c). After a President has made this determination, s/he must then obtain the written views of the Archivist of the United States that the Archivist does not intend to take action to the contrary. 44 U.S.C. § 2203(c)(1)-(2). The Archivist must then state, in writing, that s/he has no intention of taking action with respect to the destruction of the specified presidential records.

We’re not done yet.

After al of this, then the President has to notify the appropriate congressional committee sixty days before the proposed disposal date of the President’s intention to dispose of the records. 44 U.S.C. § 2203(d). For anyone keeping count this is a four-step, and pretty lengthy, process. In writing the PRA, Congress wanted to guarantee that records were only destroyed after multiple entities deliberated and weighed-in.

(By the way, the Archivist is in charge of the records after the conclusion of the President’s term and must make those records publicly available as “rapidly and completely as possible consistent with provisions of this chapter.” 44 U.S.C. § 2203(g)(1).)

Anyway, as technology has advanced, obviously the PRA has had to evolve as well. In 2014, Congress amended the Act to expand the scope of means of communication. The 2014 amendment prohibits the President, his staff, and the EOP from using non-official electronic message accounts unless they: (1) copy one of the President’s official electronic messaging accounts, or that of his staff or EOP, or (2) forward a complete copy of the presidential record to an official electronic messaging account of the President, his staff, or EOP. 44 U.S.C. § 2209(a)(1)-(2). The President must comply with this requirement within twenty days after the presidential record in question is created or transmitted. An intentional violation means being subject to disciplinary action. 44 U.S.C. § 2209(b).

It should be a given, but “electronic messages” means “electronic mail and other electronic messaging systems that are used for the purposes of communicating between individuals.” 44 U.S.C. § 2209(c)(2).

That Presidential Twitter account, though.

One last thing worth noting is that although presidential records aren’t subject to the FOIA while the President is in office, most records become subject to FOIA requests five years after the President has left office.

The Federal Records Act

The FRA is like the PRA but for federal agencies. Congress enacted and amended the FRA to assure “[a]ccurate and complete documentation of the policies and transactions of the Federal Government,” and [j]udicious preservation and disposal of records.” 44 U.S.C. § 2902(1), (5). The head of each federal agency is charged with keeping track of and saving just about everything that relates to the agency’s actions. 44 U.S.C. § 3101. Further, the head must “establish safeguards against the removal or loss of records [the federal agency head] determines to be necessary and required by the regulations of the Archivist.” 44 U.S.C. § 3105.

Unlike the PRA, the public or other interested parties may request the disclosure of these records through FOIA.

The Administrative Procedure Act

Ah, the APA. Brings back stressful law school flashbacks. The APA governs the internal rule making procedures of federal agencies. 5 U.S.C. §§ 551-559. In short, a federal agency creates a rule that is subject to the APA when it seeks to “implement, interpret, or prescribe law or policy.” 5 U.S.C. § 551(4).

As I briefly mentioned above, the APA requires agencies engaging in rule making to provide public notice of a proposed rule making in the Federal Register, to provide interested persons with a meaningful opportunity to comment on the proposed rule, and to engage in reasoned decision making, considering all public comments. One rules or made, they are subject to judicial review and must be consistent with the statutory text authorizing the agency to promulgate regulations.

Freedom of Information Act

FOIA was enacted in 1966 and established a statutory right of public access to information held by Executive Branch agencies upon request. Congress wanted to “ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). The Act carries a “strong presumption in favor of disclosure,” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991), and its “limited exceptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976).

In short, the government should be transparent and the public should have access to its decisions and various decision-making processes. This is important in order to keep corruption in check and to hold those in charge responsible for their actions.

Under FOIA, just about every single record created by a federal agency must be made publicly available. There are a few specific exemptions however. Included in the government entities that fall outside of the APA’s definition of “agency” is the Office of the President, which is not subject to FOIA.

The Constitution

At issue in CREW’s and NSA’s complaint is Article II, Section 3, which is the “Take Care Clause.” The Take Care Clause says that “[the President] shall take care that the laws be faithfully executed[.]” U.S. Const., art. II, § 3. The Supreme Court has interpreted the Take Care Clause as imposing a “duty” or “obligation” on the President to ensure that Executive Branch officials comply with Congress’ law. Kendall v. United States ex rel. Stokes, 37 U.S. 524, 613 (1838).

(So the President can’t just run amok, usurping agency responsibilities, ignoring Acts aimed at the Executive Office, etc. etc.)

Sunday Funday: Trump just can’t extricate himself from all these lawsuits

Themis 5782

Donald Trump just has horrible luck with the court system. Maybe because he’s wholly ignorant of the law, maybe because he just doesn’t care, or maybe due to a mixture of the two. Whatever the case, he (and a few of his supporters) are still stuck in a lawsuit thanks to misunderstanding the First Amendment of the Constitution and blatant misreadings of relevant statutes.  The US District Court for the Western District of Kentucky just issued an Opinion on Friday refusing to dismiss the lawsuit.

A year ago, the plaintiffs in the case were protesters at a Trump rally at which Trump allegedly directed his supporters to “Get ‘em out of here.” After this directive, several of his supporters apparently followed his orders and physically attacked the plaintiffs. One of the protesters is black and was shoved and then struck, one was seventeen and a high school student at the time and was punched in the stomach. Once the ruckus started, Trump apparently tried to backpedal, allegedly saying, “Don’t hurt ‘em. If I say ‘go get ‘em,’ I get in trouble with the press.” Ultimately, the attack [understandably] forced the protesters out of the rally and they later filed suit.

The lawsuit alleges assault and battery by the Defendant Trump Supporters in addition to incitement to riot, vicarious liability, and negligence on the part of Trump and his campaign. (That is, Trump encouraged the disorder and is responsible for the actions of his supporters.) The Trump Defendants filed a motion to dismiss, the defendant supporters filed similar motions and the Court decided to grant in part and deny in part. (I.e., some claims passed muster, others did not, and the Court found that most of the plaintiff’s claims were sufficient to carry the case to hearing.) I’ve only summarized Trump’s crew’s arguments, not those of the Defendant Trump Supporters, but you can read those starting on page 17 of the Court’s opinion.

In order of the Court’s discussion:

Trump Defendants (Trump and his campaign) sought to dismiss incitement of riot, vicarious liability, and negligence, gross negligence, and recklessness.

I. Incitement to Riot

The Trump Defendants argued that it isn’t plausible to say that Trump was addressing the audience members or that he intended for violence to ensue when he directed his supporters to remove the protesters (he was clearly just talking to even security). Then they claimed that because the plaintiffs never alleged that a riot actually occurred, the claim is deficient. Finally, they asserted that regardless, Trump’s statement was protected by the First Amendment.


Mmmm….nope. None of these contentions warrant dismissal at this point in the case.

Plausibility: The Court said that just because there is an alternative plausible explanation for why a defendant did something does not mean that the plaintiffs’ explanation is therefore implausible and subject to dismissal. Precedent establishes that pleadings in a case do not have to be “probable,” just “plausible.” And the plaintiffs allege numerous facts that support the notion that Trump’s words were directed to his audience. They cite numerous occasions where Trump made comments that endorsed or encouraged violence against protesters. They point to the fact that one of the Defendant Protesters interpreted Trump’s words as an instruction and took action. Presumably, if Trump had intended for security to handle the protesters, he would have directed his supporters to stop what they were doing, not offer guidance as to how to go about it (“Don’t hurt’em.”). Therefore, the Plaintiffs’ allegation is plausible and the Trump Defendant’s failed to identify an “obvious alternative explanation” for Trump’s statement that would warrant dismissal of the incitement claim.

Occurrence of a Riot: The Court had a pretty easy time with this one because the statute on which Plaintiff’s rely does not actually require the occurrence of an actual riot. Instead, it just provides that “[a] person is guilty of inciting to riot when he incites or urges five (5) or more persons to create of engage in a riot.” Further, the Trump Defendants were unable to find any case that established such a requirement. They tried to argue that the complaint doesn’t actually allege that five or more persons were involved in the Plaintiffs’ mistreatment or that there was “tumultuous and violent conduct” but again, this isn’t an argument relevant to the statute at issue. The only relevant action to the statute is that someone provoked, urged, or stirred up someone(s) else to commit a crime. There were more than five people at Trump’s rally, Trump was allegedly speaking to all of them, some of them acted. Further, Plaintiffs and one of the defendants described a “chaotic and violent scene in which a crowd of people turned on three individuals and those individuals were injured as a result.” That is enough. Five or more didn’t have to act. There didn’t need to be a riot. All that was required was incitement, and the Plaintiffs alleged sufficient facts as to prevent this claim from being dismissed.

First Amendment (my favorite because they attempt to get this case thrown out on the basis of the First Amendment is so laughable to anyone who has ever taken Constitutional Law – which the lawyers here presumably did): There is caselaw literally everywhere that holds that incitement of violence is not protected by the First Amendment. You cannot go around stirring up people to commit crimes and then claim that you were allowed to do it “because, First Amendment.” Sorry Charlies, that’s a no fly zone. The Court cited a whole long list of cases to back this up. Most to the point? Bible Believers v. Wayne Cty., “[W]hen a speaker incites a crowd to violence, his incitement does not receive constitutional protection.” Speech is considered “incitement to riot” if (1) it explicitly or implicitly encourages the use of violence or lawless action; (2) the speaker intends for his speech to result in violence or lawless action; and (3) the imminent use of violence or lawless action is the likely result of the speech. If someone is encouraging action, it might be incitement. The Court determined that the Plaintiffs adequately alleged that Trump’s statement meets the criteria.

I almost feel bad for Trump’s lawyers. They’re making such terrible legal arguments that one has to wonder whether they’re going to find a sharp decline in the number of clients interested in hiring them for their services. Frankly, the conspiracy theorist in me thinks maybe they know it’s absurd, but they want to get these arguments on the record to pave the way to use them in the future, perhaps with greater success, and dismantle our Constitution.

II. Vicarious Liability

The Plaintiffs made the argument that the two named Supporter Defendants were acting as Trump’s agents when the incident occurred. Trump Defendants argued that they cannot be held vicariously liable for the protesters actions. Yeah, the Plaintiffs were stretching here and the Court agreed with the Trump Defendants.

Court: “Agency” requires a fiduciary relation between people – there has to be the manifestation of consent by one of the people to the other person that s/he will act on his behalf and subject to his control. While employment isn’t necessary to form this relationship, there must be a “right to control” the agent’s conduct and Plaintiffs failed to demonstrate that Trump had this right over his supporters.

The principal (in this case, Trump) has to have control over the manner in which the agent acts. Merely telling someone to take an action is not sufficient to establish agency. More precisely, “An individual is the agent of another if the principal has the power or responsibility to control the method, manner, and details of the agent’s work.” The Court determined that Plaintiffs failed to include appropriate supporting factual allegations for their allegation that Trump’s supporters were his agents and therefore Trump Defendants are vicariously liable. Because of this, the Court dismissed this complaint.

III. Negligence

The Court’s agreement with the Trump Defendants stopped at vicarious liability. Negligence requires a showing of duty, causation, breach of that duty, and subsequent damages caused by that breach (yay! Torts 101). The Trump Defendants argued that they could not be liable for negligence because they had no duty to Plaintiffs, the security at the event was adequate, there is no alleged causal connection between Trump’s words and Plaintiffs’ injuries (lol, really?), and Plaintiffs assumed the risk of the injury (oh brother, one never makes this argument. Absent injuries in something like contact sports, it’s difficult to argue that someone consented to being harmed without some sort of explicit agreement. Further, most states hold that you can’t consent to be on the receiving end of an illegal act). Finally, the Trump Defendants tried to argue that the Plaintiffs created a new negligence theory that, if accepted by the Court, would violate the First Amendment.

The Court dismissed all of these arguments out of hand. It tackled the so-called “new negligence claim” first and determined that the Trump Defendants’ assertions regarding it were baseless. The Trump Defendants asserted that the Plaintiffs failed to allege “any knowledge on the part of the Defendants” that Trump’s audience might be predisposed to violence. The Plaintiffs specifically alleged that “the directive to eject a Black woman, when several members of a group that Trump knew or should have known was a recognized hate group were present in the audience, was entirely reckless, or at least negligent/grossly negligent.” So, that prompts the question: did the Defendants just fail to read the complaint?

The Court also wasn’t convinced by the argument that allowing the Plaintiffs’ negligence claim to go forward would be in violation of the First Amendment. The cases cited by the Trump Defendants involved defamation or other false statements, which do not apply here. The one exception was a 1975 case that addressed a defendant who made threats against the president and Justice Marshall on the Supreme Court stated that the Court “should be particularly wary of adopting [a negligence] standard for a statute that regulates pure speech.” First, the Court here pointed out that this is not a categorical rule, and second, there’s still the fact that incitement is not entitled to First Amendment protection. Thus, the 1975 case is also inapplicable to the facts alleged in this matter.

The Plaintiffs also sufficiently alleged that the Trump Defendants had a duty to them. Although “a proprietor is not the insurer of the safety of its guests,” the rule in Kentucky is that “every person owes a duty to every other person to exercise ordinary care in his activity to prevent foreseeable injury.” Soooo stirring up a potentially volatile situation is probably going to be a violation of that duty.

Foreseeability isn’t a high bar to meet. In Kentucky in the proprietor-patron context, a plaintiff must show that (1) the proprietor had knowledge that one of his patrons was about to injure the plaintiff and he failed to exercise ordinary care to prevent such injury; or (2) the conduct of some of the persons present was such as would lead a reasonably prudent person to believe that they might injure other guests. Basically, if you’re holding an event and you see that somebody there is about to attack someone else there and you DON’T take some sort of ordinary preventative action, there’s foreseeability that harm is about to occur. OR, if you are watching people at your event get riled up in such a way as to cause violence and it would be apparent to Joe Blow off the street that yeah, maybe they’re going to hurt someone, there’s foreseeability.

Further, an act or omission might be negligent if the person acting either realizes or should realize that what they’re doing involves an unreasonable risk of harm to another person through someone else’s conduct, which is intended to cause harm, even if that conduct is criminal. So Trump Defendants aren’t absolved of liability just because someone did something criminal if that criminal act was a reasonably foreseeably consequence of Trump’s negligent act. The Court also pointed out that the Trump Defendants cited more inapplicable cases, none of which involved a defendant who had allegedly triggered the criminal act of a third party.

Bolstering the Plaintiffs’ argument for the foreseeability prong of the negligence test is the Plaintiffs’ allegation that Trump supporters were wearing t-shirts that identified them as supporters of the Traditionalist Worker Party; that Trump therefore knew or should have known that his audience included members of “a recognized hate group;” and that order the removal of an African-American woman was thus particularly reckless. The Plaintiffs further alleged that protestors had been attacked at earlier rallies. Therefore, the Court found that the Plaintiffs adequately alleged that their harm was foreseeable and that the Trump Defendants had a duty to prevent it.

The Trump Defendants also tried to claim that the Plaintiffs failed to plausibly allege proximate cause. I don’t know how they argued this with a straight face, I really don’t. It seems so absurd. Like, you hollered a directive and then people did stuff and somehow you’re trying to say that there wasn’t cause and effect? What? The Court was on the same page and found that the Plaintiffs plausibly alleged that Trump intended for the audience to act on his words. He said to “get ‘em out” and then people in the crowd began pushing and shoving the protestors. The Trump Defendants’ argument that Trump’s statement could not have been the proximate cause of any violence because it was likely not directed at the crown was laughable (or, as the Court put it “without merit”). Come on, dudes. You’re giving all of us lawyers a terrible name (and it’s not like we’re not already struggling in the public perception department).

The Court was likewise unimpressed with the concern that the complaint failed to allege the type or cost of security present or needed at the rally. The Plaintiffs argued that the Trump Defendants were negligent in relying on audience members to remove protestors rather than relying on professional security handle the task. Their argument had nothing to do with whether there were sufficient numbers of security officers present.

Finally (and maybe my other favorite) the Court smacks down the “assumed the risk” argument with one sentence: “The doctrine of assumption of the risk was abolished in Kentucky decades ago.”

Seriously. These lawyers are horrible. Did they not read any caselaw? Were there so few arguments to be made in defense of Trump that they just had to make really, really bad ones?

See ya in court, Trump. When you break the law, it chases you. And you’ve managed to tick off our entire judiciary and your lawyers are seemingly not good at their jobs, so good luck out there. You’ll need it.