Tuesday, December 26, 2017

Two more remarkable things about the Department of Justice's arguments in the unaccompanied minors' abortion litigation

Marty Lederman

In three recent posts, I've sharply criticized briefs filed by the Department of Justice--and by the Solicitor General, in particular--in the various iterations of the Hargan v. Garza litigation, involving the HHS Office for Refugee Resettlement's new practice of preventing minors in its effective custody from obtaining legal abortions.  (I summarize many of those DOJ failings in a footnote below.*)

Over the weekend, I was listening once again to the oral argument before the D.C. Circuit back on October 20th, and it occurred to me that two further problematic DOJ arguments are also worth flagging.

1.  "There's No Undue Burden Because She Can Simply Leave the United States."

The first is one I mentioned briefly in my initial post:  In each of its briefs over the course of the past ten weeks or so, DOJ has argued that ORR's custody of minors does not, as a matter of law, impose an "undue burden," and thus raises no constitutional problem, because an unaccompanied immigrant minor may simply seek "voluntary departure," i.e., she may ask to return to her home country, in which case ORR would no longer be standing in the way between her and an abortion clinic.  In the Jane Doe case that was the subject of the October oral argument, the government insisted that this was the case even where, as there, abortion was illegal in the minor's county of origin (see p. 29).

This "no undue burden because the minor can depart the U.S." argument is even less defensible than the government's implausible "affirmative facilitation" argument that I discussed in previous posts.  Taken to its logical extreme, it would mean that any State could completely prohibit abortion--because, after all, a woman has the "option" of traveling to one of the other 49 states, or any of 120 or so other nations, to obtain an abortion:  and so, presto!--no undue burden.

This argument is so unconvincing that, during the October 20 argument, Judge Kavanaugh, who was sympathetic to ORR (albeit on a theory that ORR has declined to embrace, as I explained earlier), tried to signal to DOJ that it should abandon its "leaving the country is an option" argument (p. 75 of the transcript).  "[On] your theory," he asked the DOJ lawyer, "[c]ould the State of Texas pass a law . . . that says that no hospital, clinic, [or] doctor may perform an abortion on a woman who's not in the country lawfully--on the theory that she can return to the home country?" (pp. 16-17).  The DOJ lawyer never really answered the question--and with good reason, because it was, in effect, a rhetorical question with an obvious answer:  Judge Kavanaugh was trying, not so subtly, to show DOJ that it's an absurd proposition and thus a dead loser.  Unfortunately, the Solicitor General did not pick up on the judge's cue:  In his brief to the Supreme Court earlier this week, he invoked the "voluntary departure option = no undue burden" argument at least a half-dozen times (see pp. 3, 4, 9, 12, 14-15, 17-18, 19).  It doesn't get any better, or any less callous, the more often the government repeats it.

2.  "We Don't Restrict Abortions in Cases of Rape."

This past Wednesday, once ORR had released both Jane Poe and Jane Roe so that they could exercise their constitutional rights, the court of appeals unsurprisingly granted the government's motion to voluntarily dismiss its appeal from Judge Chutkan's injunction in the Roe case.  The panel proceeded, however, to also do something else that I did not fully appreciate at the time.  At the time of dismissal, the plaintiffs still had motions pending, in both the district court and the court of appeals, to file an unsealed version of the ORR Director's decision in the Jane Poe case.  The court of appeals noted that it would "retain jurisdiction" over the plaintiffs' motion to file an unsealed version of the ORR decision, with disposition of that motion "to be held in abeyance pending the district court’s disposition of the motion to unseal the same material pending before it."  That much was wholly unremarkable; it appeared to be pro forma.

However, the court of appeals also included a cryptic citation to Rule 10(e)(2)(C) of the Federal Rules of Appellate Procedure, and directed the parties "to file motions to govern further proceedings within five days of the district court’s disposition of the pending motion."  I did not quite understand these additions to the court's order at the time:  After all, with Poe and Roe having received the relief they were seeking, and with the appeal dismissed, why would the court of appeals want expedited briefing on "proceedings" regarding the sealed or unsealed Director's decision on Jane Poe?

And then, as I said, I happened to be listening again to the October 20th oral argument . . . in which DOJ attorney Catherine Dorsey assured Judge Millett that if a minor in ORR custody was pregnant by virtue of an assault or rape, ORR would allow her to obtain an abortion (see pp. 23-24).

By the time it issued its order this past Wednesday, the court of appeals knew that this was a misrepresentation--that, in fact, the ORR Director would prohibit a minor from terminating a pregnancy that was the result of a rape, as he did with Jane Poe.  That's why the court cited Rule 10(e)(2), which provides that:
(2) If anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded:
(A) on stipulation of the parties;
(B) by the district court before or after the record has been forwarded; or
(C) by the court of appeals.
Now, I don't for a minute think that Catherine Dorsey deliberately misinformed the court of appeals.  I'm confident--and surely the panel is, too--that Dorsey thought it was obvious ORR would permit a rape victim to obtain an abortion (indeed, she probably assumed ORR would pay for it, because the Hyde Amendment has an exception for pregnancies resulting from rapes).  Yet Dorsey later discovered--as did the panel--that her representation on October 20 was false--that her client was in fact engaged in an almost unimaginable practice.  And yet DOJ did nothing to correct the record--perhaps hoping that the Director's outrageous Jane Poe decision would never see the light of day.  The court of appeals has now called out the Department on this startling failure to correct its unwitting misrepresentation.

* * * *
For the reasons I've explained, I don't think the Department of Justice litigating divisions, including the Office of the Solicitor General, should have done all these things in the Garza litigation.  It's important to emphasize, however, that the problems do not begin with the litigating divisions.  Those offices find themselves in a very tough, almost untenable, spot, because they are being asked to defend legally dubious executive conduct after the fact.  And therefore they resort to somewhat desperate measures.  The arguments they are making betray the traditions of the Department and OSG.  The problems begin at an earlier date, however, when agency counsel, and/or the White House Counsel's Office, and/or DOJ lawyers who see the problems coming, do not try--or are unable--to persuade executive officials, such as the President and the ORR Director, to act in a lawful manner.

It's not only in the abortion litigation that this problem has arisen.  For example:

-- DOJ lost a good bit of credibility, I think, by trying to defend the legality of the first travel ban, which had been promulgated with virtually no vetting, no evidence, and no process.  Whatever one thinks about the merits of DOJ's arguments in the more recent "Travel Ban 3" litigation, its arguments there are much more serious, and professionally responsible, because DOJ and other lawyers were able to shape the government's conduct before it happened.  

-- Right at the outset of the administration, the President decided not to do anything about the possible Emoluments Clause problems raised by his business enterprises, based upon wholly unconvincing advice he obtained from a private law firm.  The traditional method of dealing with such questions would have been to ask OLC to answer them, and then, if there were a possible problem, to adjust practices and/or obtain congressional consent to avoid it.  As I've explained elsewhere, because the President did not do so, the DOJ litigating divisions now find themselves defending the constitutionality of practices that its own experts did not have an opportunity to vet, making arguments that are in considerable tension with the mode of analysis that OLC has employed in the past to evaluate emoluments questions.  (DOJ has even gone so far as to resurrect the misguided argument that courts may not enjoin--or even declare unlawful--presidential conduct.  As I recounted in that earlier post, when he was Solicitor General, Paul Clement wisely abandoned that argument.  The current DOJ should, too.)

-- The President directed DoD to implement restrictions on transgender persons in the military without evidence of any problem, ignoring careful studies that DoD had completed, and—presumably—without any legal vetting.  Not surprisingly, then, when trial courts have recently enjoined implementation of the President’s order, and DOJ has asked appellate courts to stay those injunctions pending appeal, the lawyers’ submissions have been hopelessly inadequate in satisfying any of the standards for such a stay.  In its decision denying one such DOJ motion Friday evening, for example, the D.C. Circuit concluded that DOJ had not shown a strong likelihood that they will succeed on the merits of the Fifth Amendment question, in light of “the sheer breadth of the exclusion ordered by the [Presidential Memorandum], the unusual and abrupt circumstances surrounding the President’s announcement of [the exclusion], the fact that the reasons given for [it] do not appear to be supported by any facts, and the recent rejection of those reasons by the military itself.”  In particular, the DOJ lawyers failed to show “that any training or medical demands associated with the accession of transgender troops—all of whom must be medically stable for 18 months before entry (absent a waiver)—are different in kind or degree from the demands associated with the retention of existing troops”; and they “provided no non-conclusory factual basis or military justification for their apparent position that the extensive study already conducted prior to President Trump's policy shift was inadequate or otherwise in need of supplementation.”  

The DOJ lawyers also had nothing to offer to demonstrate that allowing the accession of transgender troops on January 1, 2018, will cause the government irreparable harm—instead, they simply relied upon “sweeping and conclusory statements” without “explain[ing] what precisely needs to be completed by [January 1, 2018,] in order for [Appellants] to be prepared to begin transgender accessions.”  Worse still, they failed to inform the court of a December 8, 2017 DoD Memorandum that directly contradicted their “irreparable harm” claim—a memo that documented “concrete plans already in place to govern accession.” 

* * * *

My point is not that there's an excuse for the DOJ litigators to be making such inadequate and misleading arguments in court:  there isn't.  The lawyering problem, however, goes much deeper, and begins even before any complaints and briefs are filed.

* For example, in his petition for cert. in the Jane Doe case, the Solicitor General offers no reasons why certiorari is warranted, or even why the court of appeals erred in concluding that the government had not met the demanding standards for declining to grant a stay pending appeal (which was all that the court decided).  He offers no authority whatsoever in support of his "argument" that HHS did not violate Doe’s Fifth Amendment rights.  He does not even refer to the arguments Judge Henderson and Judge Kavanaugh offered in HHS’s defense, nor does he engage in any way with Judge Millett's arguments that the agency had acted unlawfully.  He also contradicts the Solicitor General's longstanding view that vacatur of the judgment below is inappropriate if and when (as here) the substantive question presented is not itself cert.-worthy.  And his "petition," as well as his reply brief, is unusually obsessed with demonstrating that Jane Doe's counsel acted unethically when they failed to inform government counsel--in the hours between midnight and 4:00 a.m. on October 25--that Doe's 4:15 appointment that morning would be for the purpose of having an abortion rather than for counseling (something that the shelter employees themselves reasonably suspected, given the unusual timing of the appointment), to the point where the SG makes the unprecedented and unwarranted suggestion that the Supreme Court itself should sanction Doe's attorneys.  For the reasons I have explained at length, as well as those in Carter Phillips' excellent brief in opposition, this suggestion that any of Doe's counsel--but especially those representing her in the Supreme Court--acted unethically, is groundless, and unworthy of the Office of the Solicitor General.

Furthermore, as I've explained in my more recent posts, DOJ's principal argument for why Judge Chutkan's injunctions are unlawful--namely, that they would require ORR to "affirmatively facilitate" abortion, something that the SG asserts 18 times in the course of 21 pages in his most recent filing with the Supreme Court--border on the frivolous. 

The Department has also exploited, and failed to disclaim, the important concession that Judge Kavanaugh, in his dissenting opinion on October 24, understood the government to have made:  "The Government has . . . expressly assumed, . . . presumably based on its reading of Supreme Court precedent, that the Government lacks authority to block [a minor in its custody] from obtaining an abortion.”  As we now know, Judge Kavanaugh's understanding was not correct:  ORR asserts that it does indeed have the authority, which it has exercised, to block such a minor from obtaining an abortion, even when the pregnancy is the result of a rape, when the Director unilaterally decides (as he presumably would in every case) that the abortion would not be in the young woman's best interests, no matter what the woman herself decides (indeed, even when she expresses a desire to die rather than carry the pregnancy to term).  And DOJ has failed to engage with the question of whether the ORR Director has any statutory authority to prevent minors in his charge from obtaining abortions that are legal under state law (answer: he has no such authority, and his new policy is actually inconsistent with Congress's statutes and ORR's own directives to shelters).

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