Tag Archives: ninth circuit

The Ninth Circuit Ignores Precedent and Threatens National Security

The Ninth U.S. Circuit Court of Appeals violated both judicial precedent and the Constitution’s separation of powers in its ruling against President Trump’s executive order on immigration. If the ruling stands, it will pose a danger to national security.

Under normal rules of standing, the states of Washington and Minnesota should never have been allowed to bring this suit. All litigants, including states, must meet fundamental standing requirements: an injury to a legally protected interest, caused by the challenged action, that can be remedied by a federal court acting within its constitutional power. This suit fails on every count.

The plaintiff states assert that their public universities are injured because the order affects travel by certain foreign students and faculty. But that claim involved no legally protected interest. The granting of visas and the decision to admit aliens into the country are discretionary powers of the federal government. Unadmitted aliens have no constitutional right to enter the U.S. In hiring or admitting foreigners, universities were essentially gambling that these noncitizens could make it to America and be admitted. Under the theory of standing applied in this case, universities would be able to sponsor any alien, anywhere in the world, then go to court to challenge a decision to exclude him.

It is also settled law that a state can seek to vindicate only its own rights, not those of third parties, against the national government. The U.S. Supreme Court held in Massachusetts v. Mellon (1923) that it is not within a state’s duty or power to protect its citizens’ “rights in respect of their relations with the Federal Government.” Thus the plaintiffs’ claims that the executive order violates various constitutional rights, such as equal protection, due process and religious freedom, are insufficient because these are individual and not states’ rights.

Even if states could articulate a concrete injury, this is not a case in which the courts ultimately can offer redress. The Constitution grants Congress plenary power over immigration, and Congress has vested the president by statute with broad, nonreviewable discretionary authority to “suspend the entry of all aliens or any class of aliens . . . he may deem to be appropriate” to protect “the interest of the United States.” Numerous presidents have used this authority to suspend entry of aliens from specific countries.

Further, as the Supreme Court explained in Knauff v. Shaughnessy (1950), the authority to exclude aliens “stems not alone from the legislative power but is inherent in the executive power to control the foreign affairs of the nation.” In issuing the order, the president was acting at the apex of his authority. As Justice Robert Jackson noted in Youngstown v. Sawyer (1952): “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” That point the Ninth Circuit ignored entirely.

The order, frequently mischaracterized as a “Muslim ban,” is actually directed at seven countries that the president believes present a particular threat to U.S. security—a view with which Congress agreed in 2015. All are beset by terrorists and so uncertain and chaotic that proper vetting of potential refugees and immigrants is virtually impossible.

President Obama chose to toughen vetting standards for these countries’ nationals rather than bar their entry completely. But if Mr. Trump has a different view of the threat, it is not up to the courts to decide who is right. This is a classic example of a nonjusticiable “political question,” involving matters constitutionally vested in the president and Congress.

Judges—were they adjudicating a suit brought by a party with standing—could overturn the president’s order if it entailed clear violations of due process or equal protection. But attempting to discern Mr. Trump’s motivation in selecting these countries exceeds the judiciary’s proper constitutional role. Judges scrutinize government motives in the domestic context, if presented with allegations that facially neutral governmental action is motivated by invidious discrimination. That inquiry is inappropriate in the foreign-policy sphere.

The Ninth Circuit’s decision represents an unprecedented judicial intrusion into the foreign-affairs authority of Congress and the president. The stakes transcend this particular executive order and even immigration issues generally. By removing restrictions on standing and other limitations on the exercise of judicial power, the Ninth Circuit would make the courts the ultimate arbiters of American foreign policy. The ruling risks creating both a constitutional and a security crisis. It must be reversed.

Messrs. Rivkin and Casey practice constitutional and appellate law in Washington and served in the White House Counsel’s Office and U.S. Justice Department during the Reagan and George H.W. Bush administrations.

Source: https://www.wsj.com/articles/the-ninth-circuit-ignores-precedent-and-threatens-national-security-1486748840

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A Facebook Deal That Needs Unfriending

Time to end class-action settlements that only reward lawyers, not plaintiffs.

By David B. Rivkin Jr. and Lee A. Casey 

The Supreme Court will soon decide whether to hear a case that could determine the future of particularly abusive class-action settlements. Not abusive in the usual sense, where a class of injured plaintiffs is awarded an exorbitant amount. Instead, these settlements are abusive in that absolutely nothing goes to the injured plaintiffs. At issue is whether federal courts may approve such agreements rewarding lawyers and defendants, leaving plaintiffs out in the cold.

The case is Marek v. Lane, and it arose out of Facebook’s notorious 2007 “Beacon” program. Beacon gathered and published information about Facebook users’ other Internet activities as an advertising and marketing tool, invading the privacy of millions. It may also have violated a number of state and federal laws, including the 1988 Video Privacy Protection Act, which includes a liquidated-damages provision of $2,500 for each offense. A class-action suit was filed in 2008 on behalf of as many as 3.6 million injured social networkers.

Embarrassed (if unrepentant) and under media pressure, Facebook entered settlement negotiations, ultimately agreeing to pay $9.5 million. Of this, about $3.1 million (later reduced to $2.3 million) would go to the class-action lawyers, and the rest would be used to create a Digital Trust Foundation, controlled in part by Facebook. The DTF would sponsor programs and education regarding online threats to personal information and identity—including through funding consumer groups, such as the Electronic Frontier Foundation, that Facebook already supports and are often allied with Facebook on matters of regulation and public policy. Members of the class of injured plaintiffs, meanwhile, would get nothing and, unless they took action to “opt-out” of the settlement, their individual claims would be forever barred.

Such arrangements, through which a class recovery is diverted to purposes other than actually compensating the claimants, are known as “cy pres” awards, a term derived from the French legal expression cy pres comme possible (as near as possible). The idea is that where a court cannot directly achieve some remedial goal, such as meaningful payments to the injured parties, it may adopt other measures that, as nearly as possible, have the same compensatory result.

Cy pres remedies are very much an exception in the law, and are ordinarily subject to significant judicial policing due to the risk that defendants and class-action attorneys will use cy pres to cut a deal that benefits them both but gives plaintiffs little or nothing. For this reason, federal courts carefully assess whether proposed settlements are “fair, reasonable, and adequate” to the injured class members. A cy pres award can be approved only if a court finds that granting the recovery to a third party best advances member interests.

The Facebook settlement, however, provides zero benefit to class members. Breaking with all the other appeals courts to consider cy pres settlements, in February the U.S. Court of Appeals for the Ninth Circuit upheld a ruling that an award of millions to a foundation controlled in part by Facebook was good enough because it was not entirely “unrelated to the class’s interests.”

Yet the Ninth Circuit’s six dissenting judges wrote: “The DTF can teach Facebook users how to create strong passwords, tinker with their privacy settings, and generally be more cautious online, but it can’t teach users how to protect themselves from Facebook’s deliberate misconduct. Unless, of course, the DTF teaches Facebook users not to use Facebook. That seems unlikely.”

Nevertheless, both the trial court and the Ninth Circuit Court of Appeals approved this agreement, without assessing the value of class members’ claims. The agreement did not even forbid Facebook from reinstituting a program identical to Beacon under a different name in the future and injuring class members in the exact same fashion. If that’s “fair, reasonable, and adequate,” then anything goes.

The Ninth Circuit’s decision opens new vistas in class-action litigation, where lawyers (in the form of fat fees) and defendants (in the form of resolving expensive lawsuits on the cheap) could reap rich rewards simply by stiffing those actually injured. Sadly, even courts have been known to get in on the action by helping to choose the institutions or causes to receive cy pres payments—including awards to the alma mater of a plaintiffs’ lawyer, in one case, and to schools where judges either taught or served as a trustee, in others.

Only the Supreme Court can remedy this, by hearing Marek v. Lane and reversing a decision that carries the real and immediate danger of promoting significant abuse nationwide. Class actions should compensate the victims of genuine injuries, not promote some social good as defined by lawyers, defendants and judges.

Messrs. Rivkin and Casey served in the U.S. Justice Department under Presidents Reagan and George H.W. Bush. They are partners in the Washington, D.C., office of Baker & Hostetler LLP, representing claimants opposed to the Facebook settlement and who are now seeking Supreme Court review.

Sourcehttp://online.wsj.com/article/SB10001424052702303796404579101271549128990.html#articleTabs%3Darticle