D.C. Circuit Review – Reviewed: Broadcasts UPDATED

by Aaron Nielson — Friday, Oct. 20, 2017@Aaron_L_Nielson

In a perfect world, each edition of D.C. Circuit Review–Reviewed would have an obvious theme, some common denominator to tie the week’s events together. Sometimes it is easy to find such a theme; when more than one case invokes the Bible, it is pretty easy to know what I’ll write about. Sometimes, alas, no theme stands out. Once, for instance, the only theme I could come up with was that there were a lot of opinions and all of them were long. That sort of theme does the trick in a pinch, I suppose, but it isn’t ideal.

Thank goodness, this edition has a theme: broadcasting! The Court issued one opinion and it was about broadcasting; Greg Katsas had his Senate Judiciary Committee hearing and it was broadcast; and the Court — apparently for the first time in nearly two decades — broadcast the audio of one of its oral arguments.

Let’s start with the case. In Multicultural Media v. FCC, Judge Kavanaugh (joined by Judge Henderson) concluded that the FCC did not err regarding the nationwide emergency alert system.* Judge Millett dissented in part. Here is the backstory:

Under the FCC’s decision, when broadcasters receive emergency alerts from government entities, the broadcasters may, if they choose, broadcast the alerts only in English. The broadcasters are not required to translate emergency alerts and broadcast the alerts in languages in addition to English. The FCC decided that it needed to gather more information before it could conceivably impose multi-lingual requirements of that kind on broadcasters.

Was that okay? Yes.

Various challengers argued that the agency was required “to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service.” The Court rejected that argument:

The problem for petitioners is that this general policy provision does not require the FCC to compel broadcasters to broadcast emergency alerts in any language other than English. To begin with, policy statements, “by themselves, do not create statutorily mandated responsibilities.” Comcast Corp. v. FCC, 600 F.3d 642, 644 (D.C. Cir. 2010) (internal quotations omitted). In addition, Section 1 by its terms does not impose an affirmative obligation on the FCC to take any particular action. Unlike other statutes, moreover, Section 1 says nothing about English language abilities. Cf. Voting Rights Act § 2, 52 U.S.C. § 10303(f)(2) (“No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote because he is a member of a language minority group.”).

If Congress intended to require multi-lingual communications in general, and multi-lingual emergency alerts in particular, we would expect Congress to have spoken far more clearly than it has done in this general statement of policy. See generally FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).

Okay, sure, but was it arbitrary and capricious for the FCC to seek more information? No. All the FCC had to do was satisfy this standard: “an agency’s exercise of discretion must be both reasonable and reasonably explained.” The agency satisfied that standard because, inter alia, “there are real practical and technological concerns about forcing broadcasters into a new role in the emergency alert system.” Many broadcasters do not employ translators (especially because there are many, many languages spoken in the United States) and often time is short in emergency situations. In sum: “Petitioners want the Judiciary to force broadcasters to play a major new role in the emergency alert system even though Congress and the FCC have not yet required broadcasters to do so. But the Judiciary does not make those kinds of policy choices in our system of separation of powers.”

Judge Millett dissented regarding the “need for more information” point:

In 2005, Hurricane Katrina laid bare the tragic consequences of that gap when peoples’ lives were lost because they could not understand the warnings. The Federal Communications Commission, which regulates emergency broadcasters, has repeatedly emphasized the urgency of bridging that critical communications divide. After spending a full decade studying the problem and potential solutions, the Commission’s long-awaited answer to this crisis was to stall: To simply ask for the third time a question for which it already knew it would get no satisfactory response.

That is unreasonable. If the Commission needs new information, it should ask for new information. If it believes it should regulate, it should say so. If the Commission believes it is not the right agency to address the problem, it should say that and put the ball in what it thinks is the right court. At a minimum, the Commission was obligated to explain why it rejected the multiple solutions reasonably proposed to and previously recognized by it. The problem of ensuring effective communication to the public during crises is too grave to been snared in seemingly interminable bureaucratic limbo.

Next, consider the Katsas hearing, which was broadcast by the Senate Judiciary Committee. My wonderful assistant at BYU transcribed the hearing. As I’ve explained before, Katsas is a very talented lawyer. His hearing reinforced that point. Here are some of the highlights.

From Senator Lee’s questioning:

SENATOR LEE: Thank you, Mr. Katsas. We’ll now begin a series of five-minute rounds, beginning with me and alternating between Republicans and Democrats. Mr. Katsas, I’d like to begin by asking for what assurances you can give us about your independence. Your independence from the President, from the White House, from any particular or political interests or any other interest. There’s a long and distinguished line of judges who have, on occasion, ruled against the administration of the presidents who have appointed them in appropriate cases. So what can you tell us about what traditional independence means to you, and about whether if confirmed you’ll be the type of judge who rules on the basis of the law and the facts before you, and without fear, without regard to who’s appearing in front of you at the moment?

MR. KATSAS: Judicial independence is central to our constitutional structure. It’s imbedded in Article 3. The judges are given tenure and salary protection so that they can rule fairly in every individual case without pressure from the executive branch, without pressure from the legislature, without pressure from public opinion. It’s central to our structure. I believe it in my bones. I have worked for the government, and I have spent substantial parts of my career litigating against the government. I understand different roles, and I understand the role of the judge to apply the law neutrally and fairly, without regard for whatever president happened to nominate the judge.

Senator Feinstein:

SENATOR FEINSTEIN: Thank you very much. So let me begin, if I may. Since joining the White House counsels in office in January 2017, have you worked or advised on any matters related to Special Counsel, Muller’s investigation into Russian interference in the 2016 election?

MR. KATSAS: I have given legal advice on a few discreet legal questions arising out of the investigation. I have no knowledge of any underlying facts regarding Russian interference.

SENATOR FEINSTEIN: Can you tell us what those legal questions were?

MR. KATSAS: I’m sorry, I cannot.

SENATOR FEINSTEIN: And why can you not? Are you asserting grounds of privilege? And what are those grounds?

MR. KATSAS: I’m saying that the executive branch needs confidentiality in order for the president to receive confidential advice, in order for lawyers to provide confidential advice. The line that past nominees have drawn in this situation is to identify in general terms matters that they have worked on but not to get into the specifics of particular topics. I will also say, Senator, just again in general terms and treading carefully for obvious reasons, to the extent that any matters that I may have advised on implicate the work of the Special Counsel, I want to be very careful not to say anything here that could undermine that work.

Senator Hatch:

SENATOR HATCH: Alright. One left wing group says that you were nominated because you are “a Trump loyalist and a White House insider.” Am I right that you have worked in the White House for about nine months?

MR. KATSAS: Yes, that’s correct.

SENATOR HATCH: I thought so, but by my calculation, that amounts to less than three percent of your legal career.

MR. KATSAS: I haven’t done the math, but it’s 9 months over a 28-year legal career.

SENATOR HATCH: I suspect you were nominated more for your eight years in the Justice Department, your sixteen years in private practice, the deep respect which you have earned throughout the legal community, but perhaps the fact that you have argued cases in every federal appellate court in the country, including the Supreme Court. I’ll just note for the record that when you were nominated in 2008 to be assistant attorney general for the civil division, this committee approved your nomination by unanimous consent, and the Senate confirmed your nomination by voice vote. Left-wing groups claim that you have spent your entire career representing business and corporate interests. Now I understand that you have participated in more than 50 pro-bono matters during your career. Am I right on that?

MR. KATSAS: That’s about right, yes.

Senator Durbin:

SENATOR DURBIN: Is waterboarding cruel, inhuman, and degrading treatment?

MR. KATSAS: It clearly could be. No question about it.

SENATOR DURBIN: Is waterboarding illegal under U.S. law?

MR. KATSAS: To the extent it constitutes either torture or cruel, inhuman, and degrading treatment—yes, it is.

SENATOR DURBIN: But you haven’t drawn any personal conclusion as to whether waterboarding qualifies under the existing law?

MR. KATSAS: Well, my personal opinions are not what I’m here to talk about with regard to my assessment of the law, Senator. I can tell you, I did a lot of work on detainee issues when I was at the Justice Department, but I didn’t work on interrogation methods, so I haven’t thought those through the way I have issues regarding detention. As you know, I worked on habeas cases for years, and I’m very conversed in that law and very familiar with it and happy to discuss it with you.

Senator Cruz:

SENATOR CRUZ: Thank you, Mr. Chairman. Mr. Katsas, welcome. Congratulations on your nomination. Should you be confirmed as a judge on the D.C. Circuit and a question of torture and whether particular conduct constituted torture came before that court, what would the method be that you would follow to answer that question?

MR. KATSAS: It would start by looking at the law. The Eighth Amendment and the Due Process Clause prohibit cruel and unusual punishment and conduct that shocks the conscience, and there are cases explaining what that means. There’s a federal statute prohibiting torture, and there are cases explaining what that means. There is now a statutory prohibition on cruel, inhuman, and degrading treatment, and there’s precedent explaining what that means. I would have to consider whether there were any other intervening legal developments since 2009, when I started paying much less attention to these issues. I would have to look at all those precedents. I would have to examine the facts of any particular case that came before me—what was actually being done to the detainee—and I would apply the law to the facts and reach my best judgment, and call it as I saw it, and if I had worked on the matter in the government, I would obviously recuse myself, and if I hadn’t worked on the matter, I would decide the case to the best of my abilities.

Senator Whitehouse:

SENATOR WHITEHOUSE: Just to be clear, and I’m really trying to get to this point. There has been no assertion of executive privilege regarding your testimony here today, correct?

MR. KATSAS: I have not until today been asked to reveal the substance of advice that I may have provided, and as to that I cannot—

SENATOR WHITEHOUSE: You’re saying that there has been—I’m really trying to get this question answered, and I shouldn’t think it’s a hard one. There either has been or has not been an exertion of executive privilege. I think what you’re telling me is that there has not been, but you don’t believe that the timing is right be it for that assertion, because we’re just having this conversation now, is that a fair description of what you’re trying to say?

MR. KATSAS: Given where I sit today, I am not at liberty to get into the substance of advice.

Senator Hirono:

SENATOR HIRONO: I was interested to learn that in 2007, you had testified against the Native Hawaiian Reorganization Act. That was the Department of Justice’s position, and you based that position on that you had a concern about that the bill really relying on suspect lines of race and ethnicity, so racially defined. Are not American Indians and Alaskan natives racially defined groups?

MR. KATSAS: So the issue—Native American Indians are different. There is a line of Supreme Court precedents saying that classifications based on tribal statutes are political, rather than racial. But there was also a decision of the Supreme Court in a case called Rice v. Cayetano—

SENATOR HIRONO: I’m familiar with that decision, and in fact, that was a state action case, and the state itself cannot define an election along those kind of lines, so I would limit it to a state action case.

MR. KATSAS: Well, it was a decision in which the Supreme Court specifically rejected the analogy to Indian law in the context of a statute that tried to treat native Hawaiians like Indians.

SENATOR HIRONO: I attended that hearing. There were a lot of questions about whether or not the native Hawaiians have been organized as tribes, which they are not. But do you not consider them an indigenous peoples?

MR. KATSAS: They are, to my knowledge. They are an indigenous people.

Senator Kennedy:

SENATOR KENNEDY: How should we go about determining which rights are fundamental?

MR. KATSAS: Well, the Supreme Court has addressed that in a line of modern substantive due process cases.

SENATOR KENNEDY: Quickly give me a one- or two-sentence definition, then, of the suggestion.

MR. KATSAS: The canonical formulation is rights that are either implicit in the concept of ordered liberty or deeply rooted in the nation’s history and tradition.

SENATOR KENNEDY: Okay. Are there any rights that have not yet been declared fundamental that should be declared fundamental, in your judgement?

MR. KATSAS: That’s a hard question and sounds like one that might come before me if I were fortunate enough to be confirmed. So I think I’ll have to demur.

Senator Klobuchar:

SENATOR KLOBUCHAR: Okay. Thank you. I am concerned about this, as I noted, and I understand that you have previously spoken about the consequences of the Justice Department changing its position in litigation.

MR. KATSAS: Right.

SENATOR KLOBUCHAR: Okay. And you talk about that it would look like they’re being influenced by political considerations. Can you elaborate on that point, and do you still believe that the Justice Department’s risks undermine its credibility in the court when it changes its position?

MR. KATSAS: I think the Justice Department should never lightly change positions. The quote that you’re referencing—what I said was anytime the Justice Department changes positions in a pending case, they should be very careful to have an explanation that can be publically articulated and defended on neutral grounds. In my judgment, their change of positions in the case that I was talking about seemed very hard to defend for reasons I can get into if you want.

Senator Franken:

SENATOR FRANKEN: Okay. So your testimony is, is that you spoke to the Federalist Society the day after The Washington Post revealed that the attorney general, when in his confirmation hearings, had said something to the Judiciary Committee that was not true, and you put in your notes “Yesterday,” you don’t know what that’s referring to, so instead of giving us your presentation to the Federalist Society, you give us the notes, and now you don’t remember what your notes refer to, and your testimony is that you don’t know whether you referred to the fact that the attorney general indeed met with Ambassador Kislyak twice, even though he had testified before this committee that he had not had any communications with Russians. Is that correct?

MR. KATSAS: Senator Franken?

SENATOR FRANKEN: I’m asking a question, and you can call me whatever you like.

MR. KATSAS: My testimony is that when I refreshed my recollection by looking at my notes, months after I gave this speech, many of these notations refreshed my recollection. When I saw “First Week: Flynn, travel EO, Yates, Gorsuch,” that refreshed a recollection. I could remember what I was referring to and speak about it in general terms. When I’m looking right now at this much more cryptic entry, “Yesterday,” it does not refresh a recollection. I imagine that when I jotted down these notes and wrote down “Yesterday,” I would have recalled what would have happened yesterday, and the final point I will note, is to the extent—you were suggesting that yesterday refers to events involving Ambassador Kislyak and such—I have testified that I was not working on those matters.

SENATOR FRANKEN: That wasn’t the question, whether you were working on those matters, was it?

MR. KATSAS: No, it wasn’t, but it might—

SENATOR FRANKEN: Thank you. Now could you answer my question yes or no, is your testimony that you don’t remember what you said to the Federalist Society when you were referring to the note “Yesterday.” Is that your testimony?

MR. KATSAS: That is my testimony, yes, sir.

SENATOR FRANKEN: Okay. Would you please get us a text of the speech?

MR. KATSAS: There was no text, Senator.

Senator Coons:

SENATOR COONS: You’ve had extended exchanges with other Senators about your history of working and speaking on executive detention, and in particular, Guantanamo Bay, and you’ve defended enhanced interrogation tactics, including waterboarding, fairly thoroughly. I just wanted to ask a follow on question to your previous exchange with Senator Durbin. Is it your view that the executive branch’s ability to engage in torture cannot be constrained by Congress or the Judiciary?

MR. KATSAS: No, not at all. Actually, Congress has power under the Constitution to define and punish violations of the law of nations, and Congress independently has power under the Constitution to make laws for capture, and both of those would seem ample support for statutes addressing treatment of detainees.

SENATOR COONS: And do you also believe that Congress can or cannot prevent detainees at Guantanamo Bay from accessing our federal court?

MR. KATSAS: Under the Supreme Court’s decision in Boumediene, they cannot. I will tell you, Senator, I advocated for years for the government to cut off habeas rights. I advocated for the constitutionality of not one but two federal statutes that congress enacted cutting off habeas rights. The Supreme Court rejected the government’s position, and then I faithfully and fully and vigorously implemented that decision. If you look at my 2008 testimony before Congress, I said, “Look, the court has spoken. We have to implement the decision.” I went to Attorney General Mukasey when we were faced with 200 habeas petitions. I said, “I need help. I need 50 lawyers detailed to the civil division to do nothing but work on habeas cases.” And I went to Chief Judge Lamberth and I went to Chief Judge Hogan, and I worked with them to develop case management procedures, so that the district court and the government could faithfully implement that decision.

Senator Blumenthal:

SENATOR BLUMENTHAL: As you may know, I am the principle plaintiff in an action against the President, Blumenthal v. Trump, based on

MR. KATSAS: I do, Senator.

SENATOR BLUMENTHAL: —based on his violation, allegedly, of the emoluments clause. Have you advised the President on the emoluments clause?

MR. KATSAS: I have given legal advice on that issue. I don’t think it’s appropriate for me to get into the details of to whom I gave the advice. I report to the counsel to the President.

SENATOR BLUMENTHAL: Okay. Let me just come right to the important question. Would you recuse yourself, if confirmed, from any consideration of Blumenthal v. Trump, or of any litigation?

MR. KATSAS: Yes, I would. I worked on that case, and that makes it an open-and-shut instance of recusal.

SENATOR BLUMENTHAL: Have you been involved at all in advising the President on the firing of James Comey as director of the FBI?

MR. KATSAS: I was not.

Interesting.

And finally, today the D.C. Circuit released live audio from the oral argument in Garza v. Hargan. This doesn’t happen everyday. Indeed, the last time it happened may have been in 2001 — in the Microsoft case.

Also interesting.

UPDATE: The Court issued an emergency order in Garza. Here is the bottom line (per Judge Kavanaugh): “The Government argues that, pursuant to standard HHS policy, a sponsor may be secured for a minor unlawful immigrant in HHS custody, including for a minor who is seeking an abortion. The Government argues that this process–by which a minor is released from HHS custody to a sponsor–does not unduly burden the minor’s right under Supreme Court precedent to an abortion. We agree, so long as the process of securing a sponsor to whom the minor is released occurs expeditiously.” Judge Henderson will issue her concurrence “within five days”; Judge Millett will issue her dissent “shortly.”

UPDATE Part II: Judge Millett’s dissent is here.

* Under this system, broadcasters don’t create the emergency content — they just broadcast it.

 

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently serves as a public member of the Administrative Conference of the United States, a federal agency that studies the administrative process and makes recommendations on ways to improve it. He also co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

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