In an interesting turn of events this week, the ACLU of Michigan was victorious on two different cases that are before the Sixth Circuit Court of Appeals in Cincinnati.
The Sixth Circuit has agreed to rehear the case regarding the drug testing of welfare recipients, Marchwinski et al., v. Family Independence Agency, et al, but has denied the government’s request for an en banc court to rehear the closed immigration hearings decision.
The ACLU filed a class-action lawsuit in September 1999 on behalf of all Michigan welfare recipients who would be denied income support and other benefits under the state's "Family Independence Assistance" program for families with dependent children if they refused to submit to random drug testing or failed to comply with a mandatory "substance abuse treatment plan."
The ACLU argued that the State’s pilot program violates the Fourth Amendment's requirement that people not be subjected to "searches and seizures" without probable cause or suspicion that illegal activity has occurred. Federal District Court Judge Victoria Roberts agreed with the ACLU, but the State appealed to the Sixth Circuit and Roberts’ ruling was overturned.
The decision to rehear the case by an en banc panel indicates that there are justices who believe that the earlier outcome warrants a second look. It is anticipated the case will be argued on March 26.
In the second ACLU case to receive the Court’s attention, the Court denied the government's petition for a rehearing in the ACLU's successful challenge to the government's blanket policy of conducting secret deportation hearings in post-9/11 cases.
Last August, a unanimous three-judge panel of the appeals court struck down the policy, declaring in a much-quoted decision that "democracies die behind closed doors." If the government chooses to pursue the case, it now has 90 days from today to file a petition for certiorari with the United States Supreme Court.
The ACLU has also challenged the government's secrecy rules on behalf of a group of New Jersey newspapers. In that case, the Third Circuit Court of Appeals in Philadelphia upheld the government's secrecy policy and recently denied an ACLU request for a full court rehearing.
By reinforcing a split between the Circuits, today's order by the Sixth Circuit increases the likelihood that the Supreme Court will have the final say on the legality of secret deportation hearings. The deadline for filing a petition for certiorari from the Third
Circuit decision is the first week of March.