USCA, Seventh Circuit American Alliance for Equal Rights v. Illinois, Case No. 25-2461
Audio Arguendo
This episode of Audio Arguendo features oral arguments in the Seventh Circuit case American Alliance for Equal Rights v. Illinois, addressing whether a state can compel
Key takeaways
- The U.S. government maintains that violations of federal law alone constitute standing injury under Article III, citing precedent like Stevens and Lujan.
Main topics
- Standing and injury in fact under Article III
- Compelled speech and free expression rights
Notable quotes
"The violation of federal law is itself an injury in fact for the United States." – Mr. Goldman
Conclusion
The court will consider whether the nonprofit has standing to challenge
Transcript preview
Speaker 6 (0:03) Good morning, everyone. Our first case for argument today is American Alliance for Equal Rights versus the State of Illinois, appeals number 2461 and 2487. Mr. Goldman. Speaker 5 (0:30) Good morning, Your Honors. It may please the court. David Goldman representing the United States of America. The U.S. is not a mere bystander in the enforcement of federal law. From American Bell to Stevens, the Supreme Court has said that the U.S.'s injury from violations of federal law is beyond doubt. Speaker 6 (0:48) Mr. Goldman, the state of Illinois isn't arguing that, right? Speaker 5 (0:51) The state of Illinois is not arguing that. Speaker 6 (0:53) They've given up on the standing issue, it seems. They don't address it in their brief, and they're holding their entire hat on the jurisdictional issue. Speaker 5 (1:01) I agree with that, Your Honor. I just recognize that this court can't bypass standing, but we think that their failure to defend the ruling below just signifies how wrong it was. But if you'd like to discuss jurisdiction, I'm happy to do that. Well, no, Speaker 6 (1:13) I want to make sure I understand your argument. It seems to me like your argument is we have jurisdiction to consider the appeal. Illinois has given up on the standing question. And I think the United States' position is we have to remand it to the district court. for a merits determination on the injunction on the 14th Amendment issue. And of course, you would argue that in the district court that it's strict scrutiny that applies. Speaker 5 (1:40) Yes, that is the argument that we've raised below. We do think that it makes the most sense for the district court to take the first crack at those issues. It never did because it dismissed our or denied our motion as moot. Yes. Speaker 5 (1:53) Getting to the standing, I mean, I will just say I do think Stevens makes this abundantly clear. Stevens does say that the violation of federal law is itself an injury in fact for the United States. That's not a stray statement and it is consistent with over a century of precedent. It is consistent with the separation of powers principles that have underlined standing doctrine from the beginning. In particular, I point to page 577 of Lujan, page 429 of TransUnion. They specifically discuss the executive's role in enforcing federal law. And obviously Pasadena shows exactly how this plays out in the 14th Amendment context. So we do think that that issue is quite clear. And I do want to emphasize as well that all we're talking about here is Article III, injury and fact. We're not talking about whether we have a cause of action in any particular case. We're not talking about whether we can get past 12b6, just 12b1. And on that question, the district court got this profoundly wrong. And we urge this court to reverse on that issue because it really does throw into question the U.S.'s ability to enforce. countless federal statutes, federal criminal laws, federal civil laws, particularly in the civil rights context. Speaker 1 (2:55) So Section 2000H2, which authorizes the government to act. Speaker 1 (3:05) Is an exercise of Section 5 power under the 14th Amendment, correct? I believe so, Your Honor, yes. Given that situation, do you think you have to meet Article 3 case or Speaker 5 (3:19) controversy standards? Well, Article 3 case or controversy is a minimum requirement in any case, but we think that we undoubtedly need Speaker 1 (3:26) it. Speaker 5 (3:26) Why can't Speaker 1 (3:27) the 14th Amendment trump the original? Constitution in that respect? Speaker 5 (3:32) Your Honor, we'd certainly be open to that ruling. I just confess we haven't made that type of argument here, but I don't think we have to because, again, Stephen says that the violations of federal law is sufficient. We also have our parents' patriot standing. In any case that we bring under 2000 H2, both of those requirements will be met because we will be alleging a violation of the 14th Amendment. Insofar as parents' patriot requires that there be a matter of sufficient public importance, we have to have the Attorney General's certificate on that issue. So every case that we bring here will satisfy that. We do think that's also the ineluctable lesson to take from Pasadena as well. I'm happy to answer any further questions on that or if this court would rather just stress jurisdiction, happy to do that as well. Speaker 1 (4:14) Do you want to talk about the merits at all or just stick with the... Speaker 5 (4:18) Not today, Your Honor. We believe that, first of all, one— I won't insist Speaker 1 (4:22) that you do. Speaker 5 (4:23) You won't? Sure, yeah. I mean, standing is a sufficient basis to vacate here. We do think the district courts should have the first crack at it. And again, we think standing needs to be addressed and nipped in the bud immediately, lest any other court follow this egregiously wrong ruling. If there are no further questions, I'll yield the remainder of this opening time to my friends from the Alliance. Thank you. Speaker 6 (4:43) Okay, thank you, Mr. Goldman. Speaker 5 (4:46) Okay, Speaker 6 (4:46) Mr. Norris. Speaker 4 (5:06) Thank you, Your Honors. May it please the Court. I'd also like to start and potentially stop, depending on where this goes, with standing. The alliance is standing in particular, which the District Court's partial dismissal of our complaint was the sole basis for denying our motion for a preliminary injunction. That ruling was based only on standing. I don't think standing ought to be very difficult for the alliance either because its members, A and B, are the direct objects of SB 2930. They are directly regulated by this law that is conceded by my friends in Illinois. They satisfy all the statutory criteria to be covered by this law. And at a minimum, everyone agrees they have to ask their leaders these demographic questions that the state is mandating. And they have to collect the answers from their members. In other words, they have to do something they don't want to do because of a statute they think is unconstitutional. That's really the beginning and end of Article III standing. I think the Supreme Court reaffirmed that direct objects clearly have standing in the Diamond Energy case. This court has said the same. It goes all the way back to Lujan. But SB 2930 also injures our members because it requires them to post this demographic information on their own websites, and they have to maintain it there for at least three years. That harms them, again, because it costs still more time and money to maintain that on their websites. It compels their speech, which constitutional injuries are themselves a sufficient basis for Article III standing. That's what the Supreme Court recently reaffirmed in the first choice case. And it creates pressure on these nonprofits to discriminate on unlawful grounds. The Ninth Circuit and the Meland case that we cite says that pressure to discriminate is itself an injury on the entity that experiences the pressure from the government. Speaker 1 (6:54) So let's suppose we've had kind of this interesting question here that the district judge engaged with because any individual director or officer can choose not to answer these questions, right? And conceivably, everybody could choose not to answer the questions, apparently without consequence. But we also have this kind of, I'll call it, since we're in Chicago, nudging effects, right? Kind of try to push behavior in a particular direction. And maybe that's enough and maybe it's not under, for example, the diamond alternative energy analysis. Suppose... The governor of a state just gives a speech. It says, we expect private for-profit and not-for-profit corporations to show diversity in their hiring, in their recruitment, in their leadership. And if they don't, I'm going to call them out on that. Does that give you standing? Does that injure you enough to come to court? Yeah, I think— Speaker 4 (8:05) You get Speaker 1 (8:05) the governor to be quiet. There's a line of cases on this. I Speaker 4 (8:09) think they call it jawboning sometimes. Yes. Where the government pressures you without actually having any authority to do anything to you. Speaker 1 (8:16) And Speaker 4 (8:17) those can create injuries. I think the NRA case from the Supreme Court recently was one where there was standing in an injury there. There are also cases where that's not sufficient. I think Murthy v. Missouri, the social media case from the Supreme Court a few years ago, is an example to the contrary. I think when you're talking about First Amendment rights, courts look to see whether the statement from the government or whatever it is would chill a person of objectively reasonable firmness from speaking out or doing what it is they want to do. And so I think that analysis can work for the plaintiff. Sometimes it doesn't. I think here, though, we have a statute, of course, that requires us to do things. Everyone concedes it requires us to do things we don't want to do. Whether it also requires us to post. There's a question of statutory interpretation in there, which is what happens when 100 % of your leaders decline to disclose 100 % of the demographics every year? Do you still have to post? Our view is that you do under this statute. Well, Section C has Speaker 6 (9:10) nothing to do with disclosure. It has to do with collection, right? Speaker 4 (9:13) Correct. The duty to disclose is in Subsection A and has no conditions. It does not say you only have to disclose to the extent your leaders tell you the information. It says you have to disclose the aggregate information, period. A nonprofit that collects 100 % decline to disclose has aggregate information to post. It has to post 100 % decline to disclose. Speaker 1 (9:34) That sounds like a question of state law that is open at this point, right? Speaker 4 (9:39) It is a question of state law, yes, Your Honor. Speaker 1 (9:41) And I suppose the question against the background of Pullman abstention is, does the outcome of your standing depend upon the answer to that question? Speaker 4 (9:54) Right. And, you know, then other certification options for this type of scenario. But we don't think it's necessary under any view. We still have standing because no one disagrees that we have to ask and collect. That's an injury. If there's a facially unconstitutional statute that requires you to do something you don't want to do, you have standing to challenge it. This posting question maybe goes to irreparable harm, maybe goes to the merits. We still think we're right that in the 100 percent decline to disclose scenario, you still have to post that information on your Web site. That information alone creates pressure to discriminate because people assume, and we put in evidence that's not disputed by my friends on this point, people assume decline to disclose means not diverse.