Washington, D.C. (June 24, 2019) – Cause of Action Institute (CoA Institute) today released the following statement regarding the Supreme Court’s decision in FMI v. Argus Leader, a case considering the scope of Exemption 4 under the Freedom of Information Act (FOIA), which will impact all FOIA requesters including news media, individuals, and government transparency groups:
06/20/2019
Supreme Court Signals Nondelegation Doctrine Has Life
This week, the Supreme Court indicated that it may be on the verge of, for the first time in eight decades, applying the nondelegation doctrine and requiring Congress, not government bureaucrats, to make law. This critical development could result in significant advancement of economic freedom, political accountability, and the liberty of individual citizens.
11/28/2018
Supreme Court Rules Economic Impact of Fish and Wildlife Decision Subject to Judicial Review
In an ongoing battle between landowners and the federal government, the U.S. Supreme Court unanimously ruled against the U.S. Fish and Wildlife Service, in Weyerhaeuser Co. vs. U.S Fish and Wildlife Service, when it designated private land in Louisiana as “unoccupied critical habitat.” In a significant portion of the Court’s opinion, it also ruled against the government’s effort to block judicial review of that designation. Had the Supreme Court upheld the Fifth Circuit’s determination and denied judicial review, agencies throughout the government would be permitted to make unconstrained decisions, potentially depriving individuals and businesses affected by the regulatory powers of the administrative state of their right to challenge agency abuse and discretion in court.
Today’s decision marks an important victory in our ongoing effort to reign in the government’s abuse of power and ensure citizens can seek recourse in the courts when the government infringes on our freedoms. We filed an amicus brief in this case because it was clear that the government had abused its discretion by designating inhabited and inhabitable land as “unoccupied critical habitat,” and then blocked the rights of citizens subject to these decisions to seek review and recourse from the courts.
The designation of private land in Louisiana as “unoccupied critical habitat” at issue in this case is not only questionable on its face, as the species it’s intended to conserve cannot survive on the land as it is now, but it also significantly threatens the economic freedom and property rights of the landowners, potentially costing them $34 million in lost development opportunities. Lower courts previously determined that the agency action in this case, though “odd,”[1] is not subject to judicial review and subsequently deferred to the agency’s decision.
As CoA Institute pointed out to the court in our amicus brief, and as the Supreme Court stated in its opinion, there is a “strong presumption favoring judicial review of administrative action.”[2] Further, the narrow exception to judicial review of agency action under Section 701(a)(2) of the Administrative Procedure Act only applies when the action falls within one of the traditional categories committed to agency discretion or is one of the “rare circumstances where the relevant statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.”[3] These exceptions are intended to reduce and specify the circumstances in which agency action is exempt from judicial review, not broaden them. The Supreme Court notes that not only does the Service’s decision in this case fail to apply to one of the exceptions, but it “involves the sort of routine dispute that federal courts regularly review.”[4]
In addition to addressing whether the agency’s action was subject to judicial review, the Supreme Court was asked to address whether the ESA prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation. In its opinion, the Supreme Court asked the Fifth Circuit to consider the meaning of the word “habitat” in its decision, for the land at issue must first and foremost be “habitat” if it is to be designated as “critical habitat.” Additionally, they asked the Fifth Circuit to consider whether the Service’s cost and benefits analysis of the designation was flawed and thus made the Service’s decision not to exclude the land at issue “arbitrary, capricious, or an abuse of discretion.”[5]
Read more about this case in our previous blog post here.
Libby Rudolf is a litigation support analyst at Cause of Action Institute.
[1] Markle Interests, LLC v. U.S. Fish & Wildlife Serv., 40 F. Supp. 3d. 744, 758–59 (E.D. La. 2014).
[2] Mach Mining, LLC v. Equal Emp’t Opportunity Comm’n, 135 S. Ct. 1651 (2015).
[3] Lincoln v. Vigil, 508 U.S. 182, 191 (1993).
[4] Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., No. 17-71, slip op. at 12 (U.S. Nov. 27, 2018).
[5] Id. at 15.
07/19/2018
CoA Institute Joins Amicus Brief Challenging Qualified Immunity
Washington, DC – July 19, 2018 – Cause of Action Institute (“CoA Institute”) has joined a Supreme Court amicus brief in support of the petitioner seeking a writ of certiorari in Allah v. Milling. The brief argues that qualified immunity denies justice to victims of government misconduct, imposes prohibitive and unjustified costs on civil-rights litigants, and harms law enforcement officials by eroding public trust.
“Preserving the fundamental liberties afforded by our Constitution remains a critical priority in today’s policing environment. The notion of qualified immunity has grown from the bench and is not rooted in our founding charter. Some form of meaningful redress for those admittedly injured by police errors must be available,” noted John Vecchione, President and CEO of Cause of Action Institute.
From the amicus brief:
[Q]ualified immunity often bars even those plaintiffs who can prove their case from remedying a wrong: harm, but no foul. Qualified immunity thus enables public officials who violate federal law to sidestep their legal obligations to the victims of their misconduct. In so doing, the doctrine undermines the public’s trust in those officials—law enforcement in particular—making on-the-ground policing more difficult and dangerous for all officers, including that vast majority who endeavor to uphold their constitutional obligations.
The amicus brief is available here.
About Cause of Action Institute
Cause of Action Institute is a 501(c)(3) non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government free from abuse.
For more information, please contact Nichole.VanValkenburg@CauseofAction.org
05/17/2018
Justice Gorsuch Opines on Due Process and Civil Asset Forfeiture
In Sessions v. Dimaya,1 Justice Gorsuch concurred in the judgment of a fragmented Supreme Court but only in part of the plurality opinion by four other justices. Justice Gorsuch wrote a separate opinion to explain something he (but not the plurality) thinks is fundamental about due process. His concurring opinion highlights how civil cases, including forfeitures, now frequently impose harsher penalties than criminal prosecutions.
Dimaya involved federal statutes authorizing deportation of criminal aliens. The law designates specific crimes which, when an alien is convicted of them, allow nearly automatic deportation. It also has a “catch-all” provision that includes any felony that “by its nature” involves “substantial risk” of “physical force” against property or another person.2 The question in Dimaya was whether this catch-all provision was so vague that it did not provide fair notice about what crimes carry the risk of deportation, thereby violating the due process clause of the Fifth Amendment. The plurality (Justices Kagan, Ginsburg, Breyer, and Sotomayor) and Justice Gorsuch answered Yes, and together they held the statute void for vagueness. Dimaya, the convicted alien, won; Attorney General Sessions lost.
Justice Gorsuch’s opinion about why the winner won takes a different tack than the plurality took. Civil asset forfeiture is key to understanding why.
Deportation, like most forfeitures, is a civil matter, even after an alien is convicted and even though deportation is “a particularly severe penalty which may be of greater concern to a convicted alien than any potential jail sentence.”3 More than one commentator quickly noted that Justice Gorsuch did not join the plurality’s opinion that “the most exacting vagueness standard should apply to removal cases, because the penalty of deportation is so severe.”4
That’s where Justice Gorsuch draws the line. “My colleagues suggest the law before us should be assessed under the fair notice standard because of the special gravity of its civil deportation penalty. But, grave as that penalty may be, I cannot see why we would single it out for special treatment when (again) so many civil laws today impose so many similarly sever sanctions.”5
Enter forfeiture.
Ours is a world filled with more and more civil laws bearing more and more extravagant punishments. Today’s “civil” penalties include confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be taken…. Some of these penalties are routinely imposed and are routinely graver than those associated with misdemeanor crimes—and often harsher than the punishment for felonies. And not only are punitive civil sanctions … rapidly expanding, they are sometimes more severely punitive than the parallel criminal sanctions for the same conduct. … Given all this, any suggestion that criminal cases warrant a heightened standard of review does more to persuade me that the criminal standard should be set above our precedent’s current threshold than to suggest the civil standard should be buried below it.
* * *
Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to … confiscate [a citizen’s] home? I can think of no good answer.”6
Tyler Arnold and I have made similar points here about civil asset forfeiture. Justice Gorsuch’s point is both broader (also touching civil commitments and broad business licensing requirements) and narrower (not foreclosing the possibility that particular civil forfeitures can meet the requirements of the Due Process Clause) than ours. So be careful what you wish for. A constitutional due process challenge to civil asset forfeiture generally could still come out exactly wrong at this Supreme Court.
Mike Geske is counsel at Cause of Action Institute
1 Sessions v. Dimaya, 584 U.S. , 138 S.Ct. 1204, 200 L. Ed. 549, 2018 U.S. LEXIS 2497 (April 17, 2018).
2 See 18 U.S.C. §16(b); see also 8 U.S.C. §1101(a)(43).
3 Dimaya, 138 S. Ct. at 1213, 200 L. Ed. at 558, 2018 LEXIS 2497 at * 15-16 (Kagan, J., plurality op.) (citations and quotations omitted).
4 Dimaya, 138 S. Ct. at 1213, 200 L. Ed. at 557-58, 2018 LEXIS 2497 at * 15 (Kagan, J., plurality op.) (citations and quotations omitted).
5 Dimaya, 138 S. Ct. at 1231, 200 L. Ed. at 578, 2018 LEXIS 2497 at * 56 (Gorsuch, J., concurring in part, concurring in judgment) (citations and quotations omitted).
6 Dimaya, 138 S. Ct. at 1229, 1231, 200 L. Ed. at 575-76, 578, 2018 LEXIS 2497 at *52-53, *56-57 (Gorsuch, J., concurring in part, concurring in judgment) (citations and quotations omitted; emphases by Justice Gorsuch).
03/28/2018
Obstruction of the Tax Code: Supreme Court Limits Gov’t Power to Criminalize Sloppy Tax Filers
Did you commit a felony when you made those cash payments to your babysitter? Last week, the United States Supreme Court issued an opinion answering the question as decisively, no. “Please,” you are probably thinking, “that could never have been the case.” But according to the federal government’s arguments in a recent criminal tax case at our nation’s highest court, such conduct could have constituted felony obstruction of the tax code if you knew your babysitter was likely not going to report the income to the IRS.
Under the government’s requested interpretation of 26 U.S.C. § 7212(a), which punishes anyone who corruptly obstructs or impedes the due administration of the tax code, such a payment to the babysitter would be “corrupt” because it would help another obtain an unlawful benefit (not paying taxes) and impede the IRS’s ability to collect those taxes. In Marinello v. United States, however, Justice Breyer delivered a 7-2 decision that decisively narrowed the scope of conduct that constitutes felony obstruction of the tax code. The decision should leave every taxpayer relieved that they cannot unwittingly become subject to criminal prosecution.
Cause of Action Institute filed one of only two “friend of the court” briefs at the certiorari stage, in partnership with the National Association of Criminal Defense Lawyers. The two organizations partnered again at the merits stage to file a second “friend of the court” brief in support of Mr. Marinello’s position.
Carlo Marinello, II owned a small courier service in New York. In 2012, the United States obtained an indictment against him for failure to file tax returns and for obstruction under 26 U.S.C. § 7212(a)’s “omnibus clause” of the criminal tax code, which makes it a felony to “in any other way corruptly…obstruct [] or impede [] or endeavor to obstruct or impede, the due administration” of the tax code. The government argued that Mr. Marinello obstructed the administration of the tax code when he failed to maintain books and records for his small business, failed to provide his accountant with complete information, and discarded business records and receipts. The government argued that these otherwise innocuous (and perfectly legal) acts were criminal because they impeded the IRS’s administration of the tax code and were done “corruptly” because they helped him obtain an unlawful benefit—evading taxes. However, the tax code separately criminalizes tax evasion and failure to file tax returns and requires that the government prove that the defendant acted “willfully,” a heighted criminal intent, in committing these crimes.
Disagreeing with the government, the Supreme Court held that the “due administration of the tax code” as referenced in section 7212(a) did not cover any and all governmental efforts to collect taxes. Rather, the clause refers to the specific interference with targeted governmental tax-related proceedings, such as a particular investigation or audit. Specifically, the Supreme Court held that to secure a conviction under the “omnibus clause,” the government must show (among other things) that there is a “nexus” between the defendant’s conduct and a particular administrative proceeding, such as an investigation, an audit, or other targeted administrative action. The government must also prove that the investigation or audit was pending at the time the defendant engaged in in the obstructive conduct or was at least reasonably foreseeable by the defendant. Marinello v. United States, 584 U.S. __, __ (2018) (slip op., at 11). In other words, the defendant’s actions must obstruct a currently pending proceeding or specific IRS audit. This reasoning was based on a similarly worded criminal statute pertaining to the obstruction of “justice” as interpreted by the Supreme Court. See United States v. Aguilar, 515 U.S. 593 (1993) (requiring proof that the defendant obstructed a specific pending proceeding, not just the government’s broad administration of justice).
With regard to a taxpayer’s payment to a babysitter, and citing an IRS regulation, Justice Breyer remarked the government’s interpretation of the statute could result in felony prosecution for a person who pays a babysitter $41 per week in cash without withholding taxes, leaves a large cash tip in a restaurant, fails to keep charity donation receipts, or fails to provide every record to an accountant. As Justice Breyer stated, “[a] taxpayer may know with a fair degree of certainty that her babysitter will not declare a cash payment as income—and, if so, a jury could readily find that the taxpayer acted to obtain an unlawful benefit for another.” The Supreme Court stated that if Congress had intended this result, it would have spoken with more clarity.
Justice Breyer further emphasized that criminal statutes must be narrowly interpreted and that courts cannot rely on promises of prosecutorial discretion to narrow the scope of a statute. The Supreme Court has “traditionally exercised restraint in assessing the reach of a federal criminal statute, both out of deference to the prerogatives of Congress and out of concern that a fair warning should be given to the world in language that the common world will understand of what the law intends to do if a certain line is passed.” Marinello, 584 U.S. at __ (slip op., at 4). Moreover, the Court’s review of the broader statutory context of the entire Internal Revenue Code further counseled against adopting the government’s broad reading. The Court noted that the tax code “creates numerous misdemeanors, ranging from willful failure to furnish a required statement to employees, section 7204, to failure to keep required records, 7203, to misrepresenting the number of exemptions, 7205, to failure to pay any tax owed, however small the amount, 7203.” The Court stated that to interpret the statute as applying to any administration of the tax code would potentially transform many, if not all, of these misdemeanor provisions into felony obstruction, making the specific provisions redundant, or perhaps the subject matter of plea bargaining. Id. According to Justice Breyer, the government’s preferred interpretation would render superfluous many of the provisions of the same enactment, something that Congress could not have intended when it codified section 7212(a).
The Court further noted that it could not trust that prosecutorial discretion would limit the government’s use of the clause. At oral argument, the government attorney conceded that under the Attorney General’s Charging and Sentencing Policy, where a more-punitive and less-punitive criminal statute may apply to a case, the prosecutor must charge a violation of the most punitive statutory provision that it can readily prove at trial. Office of the Attorney General, Department Charging and Sentencing Policy (May 10, 2017). To rely upon prosecutorial discretion to narrow the otherwise wide-ranging scope of a criminal statute’s highly abstract general statutory language places great power in the hands of the prosecutor. Marinello, 584 U.S. at __ (slip op., at 9). The Court refused to construe the criminal statute on the assumption that the government will use it responsibly. According to Justice Breyer, doing so risks allowing “policemen, prosecutors, and juries to pursue their personal predilections,” id. (citing Smith v. Goguen, 415 U.S. 566, 575 (1974), which could result in the nonuniform execution of that power across time and geographic location.” Marinello, 584 U.S. at __ (slip op., at 9).
The Supreme Court’s holding is an important one for the rule of law, limiting the scope of overly broad criminal statutes, and protecting average taxpayers.
Erica Marshall is counsel at Cause of Action Institute
03/22/2018
Supreme Court Limits Gov’t Power to Charge Criminal Penalties for Unknowingly Obstructing the IRS
Washington, D.C. – The Supreme Court this week issued a ruling protecting all Americans from prosecution for vaguely defined tax crimes. In the case of Carlo Marinello, II v. United States, it clarified a broad statute regarding who can be charged with criminal conduct for obstructing the IRS’s administration of the tax code. Cause of Action Institute (“CoA Institute”) filed an amicus curiae brief in support of Mr. Marinello’s petition for Supreme Court review, and another one during the merits stage, urging a narrow reading of the statute to ensure no one could be charged under it without knowing that he is committing a felony.
CoA Institute President John J. Vecchione: “As Justice Breyer noted, the law Mr. Marinello was charged under could be interpreted to make felonies of routine conduct by everyday American taxpayers and business owners, such as failing to report a payment to a babysitter. Without this important decision, sloppy tax filers could be charged with obstruction with just an allegation that the conduct helped the defendant avoid tax liability. We applaud the Court for reining in such broad and potentially abusive prosecutorial authority, and Cause of Action is proud of its efforts in this result.”
Mr. Marinello owned a small courier service in New York. In 2012, the United States obtained an indictment against him under the criminal tax code, arguing that Mr. Marinello could be guilty of corruptly obstructing or impeding the administration of the tax code by performing acts as common as failing to maintain books and records for his small business, failing to provide his accountant with complete information, and discarding business records, all because he did these acts with the goal of not paying taxes. However, the tax code already outlaws tax evasion, and it requires that the government prove a heightened criminal intent—that the defendant acted “willfully.”
During oral argument, the Court showed enormous skepticism towards the Government’s position that virtually any act or omission, no matter how slight, could subject one to felony conviction, even though the particular tax code penalties for those actions are misdemeanors. In the Court’s opinion, Justice Stephen Breyer wrote “Just because a taxpayer knows that the IRS will review her tax return every year does not transform every violation of the Tax Code into an obstruction charge.”
The full opinion can be found here.
For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute: zachary.kurz@causeofaction.org.