Notice & Comment

D.C. Circuit Review – Reviewed: “The U.S. Court of Appeals for the D.C. Circuit will be closed on … January 20, 2017”

Eight years ago I was a law clerk for the D.C. Circuit — and I had a great view of the U.S. Capitol. In fact, my view was almost postcard perfect. Further, as you no doubt recall, January 2009 was an eventful time in the city. It does not happen often that a new President takes office. Even just sitting at my desk, it seemed like multiple times a day police escorts would drive by as someone went to the White House from the Senate or to the Senate from the White House. After all, two members of the Senate had legislative offices to vacate and executive offices to prepare — and that evidently required many trips down Pennsylvania Avenue.

Thanks to Google (with a dash of personalization), here is an image of the route.

Colorful Path to White House

As you can see, the D.C. Circuit is right in the middle of it — sometimes in more than one sense.

Today, just like eight years ago, the D.C. Circuit was closed. Because of its location, there is no way it can be open on Inauguration Day.* There are just too many people. That said, the D.C. Circuit issued four opinions this week, including one about the Inauguration Parade.

Let’s begin with the parade case. In A.N.S.W.E.R. Coalition v. Basham, the court confronted an important constitutional question: How to allocate space along the parade route? As Judge Pillard explained (in an opinion joined by Judges Srinivasan and Millett), “with a new government forming and the public eye focused on the event, demonstrators also turn out on Inauguration Day to voice their dreams and demands.” The thankless task of divvying up space falls to the National Park Service. The Park Service has “allocate[d] thirteen per cent of the footage alongside the parade route for ticketed spectator bleachers constructed and administered by the Inaugural Committee,” including “on Freedom Plaza.” Invoking the First Amendment, A.N.S.W.E.R. — Act Now to Stop War and End Racism — would like “to use that same space for mass demonstration.” If you are familiar with D.C., you know where Freedom Plaza is. If you aren’t, here is the map.
Colorful Path to White House with Freedom Plaza

So who won? The Park Service and Inaugural Committee: “The Park Service regulation authorizing the priority permit, including the space on Freedom Plaza for the bleachers, is not a content- or viewpoint-based speech restriction, but a reasonable time, place, and manner regulation of the use of a public forum. It sets aside bleacher areas, including on Freedom Plaza, for the Inaugural Committee’s use as part of the package the rule reserves to the Committee as event organizer. The First Amendment requires that any reasonable, content-neutral regulation limiting expression along the parade route leave ample space available for peaceful demonstrations. The First Amendment does not, however, support ANSWER’s claim of a right to displace spectator bleachers with its own demonstration at Freedom Plaza.”

Next consider Bartko v. SEC. Bartko may not be as high profile as A.N.S.W.E.R., but I think it also may be a significant case going forward. Let me put my cards on the table — I worry a great deal about retroactivity because the power to change the law after the fact so easily can be abused. Indeed, the “notion of unknowable law is literally Orwellian.” In a free society, we should be able to know what the law is before we violate it. In Bartko, the D.C. Circuit concluded (per Judge Henderson, joined by Judges Griffith and Williams) that a Securities & Exchange Commission order was “impermissibly retroactive.” Long story short, “[b]etween 2004 and 2005, Gregory Bartko masterminded a wide-ranging scheme that sought to defraud investors through the sale of securities. Five years later, Bartko was convicted of conspiracy, selling unregistered securities and mail fraud.” Relying on Dodd Frank, the SEC thereafter “permanently barred Bartko from associating with six classes of securities market participants.” Was that decision lawful? No — at least for “pre-Dodd-Frank misconduct.” After all, “[t]he presumption against retroactive legislation is embedded in several provisions of the Constitution, ‘among them, the Ex Post Facto Clause, the Contract Clause, and the Fifth Amendment’s Due Process Clause.'” (Note: this opinion contains an important discussion of an earlier D.C. Circuit case, Koch v. SEC (2015), also authored by Judge Henderson.)

West v. Lynch is also interesting — if you care about standing (and you should). Arthur West “lives in the state of Washington, which since the late 1990s has permitted the use of marijuana for medical purposes.” West apparently approves of medicinal marijuana (he uses it “for an undisclosed medical reason”), but “[h]e opposes the legalization of recreational marijuana … which Washington approved in 2012 through a ballot initiative.” Of course, “[a]ll of Washington’s laws governing marijuana—medical and recreational—are in tension with the Controlled Substances Act of 1970 which makes it a federal crime to manufacture, distribute or possess with intent to distribute marijuana.” Yet the Justice Department does not prosecute all recreational marijuana use, especially if a state allows it. So West sued the Attorney General and other federal officials. Judge Henderson, joined by Judges Tatel and Millett, concluded that he did not have standing to pursue his claims:

The direct causes of West’s alleged injuries—e.g., recreational users who smoke marijuana in public and state officials who restrict his access to medical marijuana—are not governed by the Cole Memorandum but by state laws he does not challenge. The memorandum governs only federal prosecutors and even as to them, only loosely: it is mere guidance channeling their prosecutorial discretion, advising them to rely on state authorities to address marijuana activity unless the state’s regulatory system is insufficiently robust or the particular activity implicates a federal enforcement priority. If the memorandum no longer existed, would federal prosecutors expend their limited resources cracking down on the use of recreational marijuana in Washington? West’s allegations offer no basis to conclude that they would. Would an uptick in federal prosecutions dissuade scofflaws from publicly smoking marijuana in the park West frequents?

(This opinion has more interesting analysis — you should give it a read.)

Finally, we come to United States v. Nizar Trabelsi, a criminal case. Here is a taste of Judge Wilkins’s opinion (joined by Judge Rogers): “Nizar Trabelsi is a Tunisian national convicted in Belgium for a variety of crimes, including attempting to destroy a military base. While Trabelsi was serving his sentence for his convictions in Belgium, a grand jury in the United States indicted Trabelsi with various conspiracy and terrorism offenses. The United States requested that Belgium extradite Trabelsi. Trabelsi challenged that request in Belgium, contending that his extradition would violate the Extradition Treaty Between the United States of America and the Kingdom of Belgium ….” The panel concluded that it had jurisdiction to review the issue but also that Trabelsi’s claims fail on the merits: “The scope of our review is limited, requiring deference to Belgium’s decision to extradite Trabelsi. This deference creates a rebuttable presumption that Trabelsi’s extradition, and Belgium’s analysis in deciding to extradite him, comports with the terms of the Treaty.” Judge Pillard concurred in the judgment: “I cannot endorse the degree of deference that the majority accords Belgium’s conclusion that the U.S. indictment did not charge Trabelsi with any of the same offenses for which he had already been prosecuted and punished.” (Needless to say, there is a lot more going on here, but you get the gist.)

In short, these are four important opinions. After all this work, can anyone really begrudge the D.C. Circuit a brief inauguration holiday? I hope they enjoyed their day off!

* Wasn’t it great to see (and hear) Justice Clarence Thomas administer the oath of office to our new Vice President? Justice Thomas is a remarkable jurist — and his voice is extraordinary to boot.

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