TWELFTH ANNUAL WILLIAMS INSTITUTE MOOT COURT COMPETITION Index of Key Cases Contents

Transcription

1 Contents Cases for Procurement Act Question (No. 1) 1. Youngstown Sheet & Tube Co. v Sawyer, 343 U.S. 579 (1952) (Jackson, J., concurring). 2. Chrysler Corp. v. Brown, 441 U.S. 281 (1979). 3. Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1996). 4. AFL-CIO v. Kahn, 618 F.2d 784 (D.C. Cir. 1979) (en banc). 5. Contractors Ass n of E. Pa. v. Sec y of Labor, 442 F.2d 159 (3d Cir. 1971). 6. Liberty Mutual Ins. Co. v. Friedman, 639 F.2d 164 (4th Cir. 1981). 7. United States v. New Orleans Pub. Serv. Inc., 553 F.2d 459 (5th Cir. 1977), vacated on other grounds, 436 U.S. 942 (1978), reaffirmed after remand United States v. Miss. Power & Light Co., 638 F.2d 899 (5th Cir. 1981). 8. Rossetti Contracting Co. v. Brennan, 508 F.2d 1039 (7th Cir. 1975). Cases for Equal Protection Question (No. 2) 1. Romer v. Evans, 517 U.S. 620 (1996). 2. Lawrence v. Texas, 539 U.S. 558 (2003). 3. Windsor v. United States, 570 U.S. ; 133 S. Ct (2013). 4. Obergefell v. Hodges, 135 S. Ct (2015). 5. Engineering Contractors Ass'n of South Florida Inc. v. Metropolitan Dade County, 122 F.3d 895 (11th Cir. 1997) 6. Western States Paving Co., Inc. v. Washington State Dep t of Transp., 407 F.3d 983, (9th Cir. 2005). 1

2 CASE SUMMARIES FOR QUESTION NO. 1 (THE PROCUREMENT ACT) 1. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Jackson, J. concurring). Rule: The President s power to issue an order must stem from an act of Congress or the U.S. Constitution. Facts: The Korean War effort increased the demand for steel. After employees of steel companies threatened to strike, the President ordered the Secretary of Commerce to seize the nation s steel mills. The steel companies sued. Issue: Does the President have the authority under the War Powers Clause of the U.S. Constitution, or any implied powers from the U.S. Constitution, to authorize the Secretary of Commerce to seize the nation s steel mills? Holding: No, the President did not have the authority to order the Secretary of Commerce to seize the nation s steel mills. Reasoning: There was no statute, act of Congress, or constitutional basis for the President to order the Secretary of Commerce to seize the steel mills. Relevance: Justice Jackson s landmark concurrence articulated the popular tripartite framework for evaluating the validity of executive action. Under this tripartite framework, (1) [w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, (2) [w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, and there is no presumption about the constitutionality of his actions, and (3) [w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb. Id. at In the problem, the lower courts concluded and the parties did not dispute that the first category of the Youngstown framework governs the scope of the President s authority to issue Executive Order (EO) 15,515 and the Department of Labor s authority to issue regulations under EO 15, Chrysler Corp. v. Brown, 441 U.S. 281 (1979). Facts: A Department of Labor regulation issued pursuant to Executive Order 11,246 required the public disclosure of information regarding federal contractors affirmative action programs and general compositions of their work forces. Petitioner argued that it had a private right of action to enjoin the agency disclosure under the Freedom of Information Act and that the requested disclosure was not authorized by law within the meaning of the Trade Secrets Act. Holding: The disclosure requirement was invalid. Reasoning: The Court reasoned that there was not a sufficient nexus between the disclosure requirement and the anti-discrimination purposes behind EO 11,246. It stressed that agency 2

3 regulations must be based on a congressional grant of authority. It determined that the regulations lacked the required nexus to congressionally-delegated authority because the disclosure regulations were not contemplated in any of the arguable statutory grants of authority for EO 11,246. Relevance: Although this case did not directly involve the economy and efficiency nexus standard, Petitioners may argue that the reasoning supports adopting the Fourth Circuit s more stringent standard to assess the validity of the Department of Labor s regulations under the Procurement Act. 3. Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1996). Rule: An executive order cannot conflict explicitly or implicitly with any other federal law. Facts: Chamber of Commerce and other employer associations brought actions for declaratory and injunctive relief challenging an executive order authorizing the Secretary of Labor to disqualify employers who hire permanent replacement workers during lawful strikes from certain federal contracts. The Chamber of Commerce argued that the executive order conflicted with the National Labor Relations Act (NLRA). Holding: The executive order was preempted by the NLRA, and therefore, was invalid. Reasoning: The court acknowledged the President s broad authority under the Procurement Act to pursue efficient and economic procurement. id. at It interpreted this broad authority to include issuing executive orders prohibiting the government from doing business with companies that discriminate on the basis of race or ignore particular wage and price standards. The court, however, concluded that this particular order was inconsistent with the NLRA s protection of employers rights to hire permanent replacement for strikers. Relevance: Although the D.C. Circuit invalidated the executive order at issue on conflict grounds, Respondents may argue that the court s emphasis on the President s broad procurement authority lends support to the idea that the Procurement Act merely requires a lenient nexus between the Department of Labor s regulations and the procurement goals of economy and efficiency. 4. AFL-CIO v. Kahn, 618 F.2d 784 (D.C. Cir. 1979) (en banc). Rule: The Procurement Act grants the President necessary flexibility and broad-ranging authority to make judgments in pursuit of economy and efficiency. Facts: Labor unions brought suit against federal officials challenging the validity of an executive order authorizing the denial of government contracts to companies that failed or refused to comply with certain voluntary wage and price standards. Holding: The executive order was valid under the Procurement Act. 3

4 Reasoning: Based on its interpretation of the legislative history of the Procurement Act, the D.C. Circuit concluded that the terms economy and efficiency should be construed broadly. It further stressed the necessary flexibility and broad-ranging authority that it understood the Act to give the President in order to make judgments in pursuit of economy and efficiency. At the same time, the D.C. Circuit underscored that its decision did not write a blank check for the President to fill in at his will, and the court required some reasonable argument that the order furthered the procurement goals of economy and efficiency. The court concluded that the executive order satisfied this nexus because it slowed inflation in the economy as a whole, which would save the government money in the long run. Relevance: This case supports the Respondents view that the Procurement Act only requires a lenient nexus between the Department of Labor s regulations and the procurement goals of economy and efficiency. 5. Contractors Ass n of E. Pa. v. Sec y of Labor, 442 F.2d 159 (3d Cir. 1971). Rule: The Procurement Act provides a broad grant of authority to the President. Facts: A contractors association challenged the validity of two orders (commonly known as the Philadelphia Plan ) under the Procurement Act, which Department of Labor officials issued pursuant to EO 11,246. The Philadelphia Plan required bidders on any federal or federally assisted construction contracts for projects exceeding $500,000 in the Philadelphia area to submit an acceptable affirmative action program. Holding: The Philadelphia Plan was valid under the Procurement Act. Reasoning: The court stressed the broad grant of procurement authority that the Procurement Act provides the President. It reasoned that the federal government had an interest in assuring that the largest possible pool of qualified manpower be available for the accomplishment of its projects and that its suppliers are not over the long run increasing its costs and delaying its programs by excluding from the labor pool available minority workers. Id. at 171, 170. Relevance: Respondents will likely rely on Contractors Association to support their view that the Procurement Act only requires a lenient nexus between the Department of Labor s regulations and the procurement goals of economy and efficiency. They might also argue that this case supports their view that the stated purposes of the regulations are sufficient to satisfy this lenient standard. Conversely, Petitioners will argue that the factual record in this case is much weaker than the factual record in Contractors Association. Moreover, Petitioners may argue that the Fourth Circuit interpreted Contractors Association to require a more stringent, as opposed to a lenient, nexus standard. 6. Liberty Mutual Ins. Co. v. Friedman, 639 F.2d 164 (4th Cir. 1981). Rule: The Procurement Act requires each application of an executive order and each regulation promulgated to enforce it to be reasonably related to the procurement goals of economy and efficiency. 4

5 Facts: A workers compensation insurer challenged a Department of Labor determination that insurance underwriters are subject to the recordkeeping and affirmative action requirements of Executive Order 11,246 under the Procurement Act. Holding: The application of the executive order to the insurance company was outside the scope of the Procurement Act because it did not have a close enough nexus with the procurement goals of economy and efficiency. Reasoning: First, the court concluded that the insurer merely provided workers compensation insurance to employers that hold federal contracts, and there were no facts showing the percentage of the total price of federal contracts that were attributable to the cost of that insurance. Id. at 171. Second, the court stressed that there were no specific factual findings showing that insurers practiced the deliberate exclusion of minority employees. Id. at 171. It further concluded that the lack of facts in the record distinguished the case from the Third Circuit s decision in Contractors Association, which upheld the validity of the Philadelphia Plan under the Procurement Act (see above). Relevance: Petitioners will argue that this case supports adopting a standard that requires a more stringent nexus between the Department of Labor s regulations and the procurement goals of economy and efficiency. Moreover, Petitioners may rely on Liberty Mutual in support of the idea that the lack of facts in the record distinguish their case from the more developed factual record in Third Circuit s decision in Contractors Association. 7. United States v. New Orleans Pub. Serv. Inc., 553 F.2d 459 (5th Cir. 1977), vacated on other grounds, 436 U.S. 942 (1978), reaffirmed after remand United States v. Miss. Power & Light Co., 638 F.2d 899 (5th Cir. 1981). Facts: Public utility challenged that it was required to comply with the equal opportunity obligations of EO 11,246. Holding: The government can compel a utility to follow EO 11,246. Reasoning: The court viewed the Procurement Act as one proper source of executive authority for requiring the utility to follow EO 11,246. The court relied on the Seventh Circuit s decision in Rossetti (see below) to stress that recent decisions involving EO 11,246 have candidly acknowledged the validity of the use by the President or Congress of the procurement process to achieve social and economic objectives. Id. at It further stressed that [t]hose cases stand for the proposition that equal employment goals themselves, reflecting important national policies, validate use of the procurement power in the context of EO 11,246. Relevance: Respondents may use this case to argue that no nexus between the Department of Labor s regulations and the procurement goals of economy and efficiency is required. Neither the majority nor the dissenting opinions in the Thirteenth Circuit below applied this test, but it is a possible test to adopt. 5

6 8. Rossetti Contracting Co. v. Brennan, 508 F.2d 1039 (7th Cir. 1975). Rule: Bid responsiveness is a valid basis for the federal government to reject a contracting bid. Facts: A bidder on a federally assisted construction contract failed to submit with his bid an appropriate affirmative action plan for minority hiring as required by the Chicago Plan. After being denied the opportunity to amend his bid submission, the bidder argued that he should be able to amend his bid submission subsequent to the opening of the bid so as to qualify as a responsive bidder. Holding: The federal government has the authority to deny the bidder from amending the bid. Reasoning: The court concluded that the omission of the affirmative action plan was material and that bid responsiveness was a valid basis for the government to reject the bid. In a footnote, the court stressed that It is well established that the procurement process, once exclusively concerned with price and quality of goods and services, has been increasingly utilized to achieve social and economic objectives only indirectly related to conventional procurement considerations. The attenuated relationship to price, quantity or quality, however, does not necessarily limit the power of Congress or the president to condition award of a contract on full and proper compliance. Id. at 1045 n. 18. Relevance: Respondents may use the dicta in the footnote above to argue that no nexus between the Department of Labor s regulations and the procurement goals of economy and efficiency is required. Neither the majority nor the dissenting opinions in the Thirteenth Circuit below applied this test, but it is a possible test to adopt. CASE SUMMARIES FOR QUESTION NO. 2 (EQUAL PROTECTION) 1. Romer v. Evans, 517 U.S. 620 (1996). Rule: Law singling out LGB people for a disadvantage violated the Equal Protection Clause, because it was inexplicable by anything but animus toward LGB people, which is not a rational basis. Facts: Passed by voters in 1992, Amendment 2 to the Colorado Constitution, among other things, forbade localities in the state from prohibiting discrimination on the basis of sexual orientation. Holding: Amendment 2 violated federal equal protection guarantees. Reasoning: First, Amendment 2 has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and invalid form of legislation. Second, Amendment 2 s sheer bread is so discontinuous with the reasons offered for it; the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to a legitimate state interest. 6

7 Relevance: Romer strikes down government classification on the basis of sexual orientation under rational basis review. 2. Lawrence v. Texas, 539 U.S. 558 (2003). Facts: Texas criminal law prohibited private, consensual sodomy between people of the same sex. Holding and reasoning: Laws criminalizing private, consensual sodomy violate the liberty guarantees of the Due Process Clause. Relevance: Lawrence did not announce the level of scrutiny it was applying. Some courts have read Lawrence to apply a level of review that was stronger than traditional rational basis review. See, e.g., Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir.2008). Other courts have read Lawrence to not require anything more than rational basis review for equal protection challenges to sexual orientation discrimination. See, e.g., Lofton v. Sec y of the Dep t of Children and Family Servs., 358 F.3d 804, 818 (11th Cir. 2004). 3. Windsor v. United States, 570 U.S. ; 133 S. Ct (2013). Facts: Section 3 of the federal Defense of Marriage Act (DOMA) prohibited the federal government from recognizing marriages between same-sex couples. Holding: DOMA Section 3 is unconstitutional. Reasoning: The Court held that DOMA Section 3 deprived married same-sex couples of the liberty and equal dignity guaranteed by the Constitution. Examining Congress s actual, motivating purposes behind DOMA, the Court held that Section 3 violated the minimal guarantee that a bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group. Relevance: Windsor did not announce the level of scrutiny it was applying and it can be read different ways depending on what parts of the opinion one focuses on. Some courts have read Windsor to apply rational basis review, looking at the desire to harm a politically unpopular group language in the opinion. See, e.g., DeBoer v. Snyder, 772 F.3d 388, , (6th Cir. 2014), rev d on other grounds by Obergefell v. Hodges, 135 S. Ct (2015). On the other hand, some courts have read Windsor to apply a specialized form of heightened scrutiny, because Windsor examined only the actual, motivating purposes behind DOMA and because Windsor didn t seem to presume that DOMA was constitutional, which are both hallmarks of heightened scrutiny. See, e.g., Latta v. Otter, 771 F.3d 456, 468 (9th Cir. 2014); Smithkline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, 484 (9th Cir. 2014). 4. Obergefell v. Hodges, 135 S. Ct (2015). 7

8 Facts: Numerous states had bans against licensing or recognizing marriages between same-sex couples. Holding: State marriage bans are unconstitutional. Reasoning: The state bans conflict with the fundamental right to marriage, which is guaranteed not only by the Due Process Clause but also the Equal Protection Clause of the Fourteenth Amendment. It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Relevance: Like Windsor, Obergefell did not announce the level of scrutiny it was applying. And for similar reasons as Windsor (see above), the Obergefell opinion can be read both to have applied rational basis review or to have applied something stronger. Obergefell is less relevant for our purposes than Windsor, however, because Obergefell focused on the fundamental right to marriage, which is not at issue in our case. 5. Engineering Contractors Ass'n of South Florida Inc. v. Metropolitan Dade County, 122 F.3d 895 (11th Cir. 1997) Facts: Trade associations sued county, alleging that affirmative action programs that provided for use of race-, ethnicity-, and gender-conscious measures in awarding county construction projects violated equal protection. Holding: Affirmative action programs unconstitutional. Reasoning: With respect to the gender-based portion of the program, the Court held (1) intermediate scrutiny applied; (2) county s post-enactment statistics did not demonstrate a sufficiently strong basis in evidence of discrimination against women-owned businesses in awarding county construction contracts; and (3) anecdotal evidence was insufficient to justify county s programs. Relevance: This decision is only one of a few court decisions to consider whether an affirmative action program benefitting women satisfies intermediate scrutiny. The Court held that the program did not satisfy intermediate scrutiny, because the statistical and anecdotal evidence put forward by the City were not sufficiently strong to show the important need for the program or that it had a close enough nexus between the means and end. 6. Western States Paving Co., Inc. v. Washington State Dep t of Transp., 407 F.3d 983, (9th Cir. 2005). Facts: Non-minority subcontractor brought facial challenge to Transportation Equity Act (TEA), and an as-applied challenge to Washington State s application of the TEA. The TEA authorizes the use of race- and sex-based preferences in federally funded transportation contracts. Holding: On facial challenge, the Ninth Circuit held that the federal Transportation Equity Act (TEA) satisfied strict scrutiny by serving a compelling state interest and using narrowly-tailored means. 8

9 Reasoning: In light of the substantial body of statistical and anecdotal material considered at the time of TEA 21 s enactment, Congress had a strong basis in evidence for concluding that in at least some parts of the country discrimination within the transportation contracting industry hinders minorities ability to compete for federally funded contracts. TEA was also narrowly tailed, because the utilization goals were flexible and they bore a close relationship to minority firms availability in a particular market. The TEA also had adequate durational limitations because it had to be periodically reauthorized by Congress. Unlike a strict quota, the utilization goals upheld by the Ninth Circuit utilized race and gender neutral means as much as possible. 9