Several important SCOTUS cases in the next block — beginning Monday with a case about Native Alaskan Corporations and the CARES Act and closing the following week with big questions about student free speech.
Monday, April 19
First up are cases questioning whether Alaskan Native Corporations are “tribal governments” eligible for CARES Act funding. There’s a complicated history concerning Alaskan Native Americans. Briefly, the 1971 Alaska Native Claims Settlement Act extinguished all land claims, eliminated all but one reservation, and established “corporations” that were eligible to receive federal and state funds and land. The DC Circuit observed that this was “an experimental model initially calculated to speed assimilation of Alaska Natives into corporate America.” Jumping ahead, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) set aside $8 billion “for making payments to Tribal governments.” 42 U.S.C. § 801(a)(2)(B). When Treasury began a process that would allow Alaskan Native Corporations to receive those funds, tribes in Alaska and the lower 48 sued to block disbursements. The DC Circuit agreed with the tribes, and that opinion is a good starting point to understand the details. Also see the various amici briefs from the Corporations, various tribes and tribal associations, Alaska, Sen. Murkowski, and a group of historians – all collected here. There are two cases, Yellen v. Confederated Tribes of the Chehalis Reservation and Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation, consolidated for one hour of argument total.
Next up is Sanchez v. Mayorkas, an immigration case involving the relationship between Temporary Protective Status (TPS) and Lawful Permanent Residency (LPR) (sometimes called a “green card”). A prerequisite to LPR status is that the applicant was “inspected and admitted” into the U.S. 8 U.S.C. § 1255(a). The applicants here entered undocumented but a few years later obtained TPS after a series of earthquakes in El Salvador, and now argue that being granted TPS constitutes being “inspected and admitted.” The Third Circuit disagreed, which created a split with other circuits that had considered this question.
Tuesday, April 20
Two criminal procedure cases today, both involving the federal “felon in possession of a firearm” law (but not consolidated; separate arguments). In both U.S. v. Gary and Greer v. U.S., the plaintiffs pled guilty. When accepting a plea, the judge is required to explain what the prosecution would have to prove (the “elements” of the crime). The judge listed knowing possession of the firearm and previous conviction for a felony. But two years later, the Supreme Court in Rehaif v. United States clarified that conviction under this law requires knowledge that they were a felon. The cases raise issues concerning whether Rehaif announced a rule that is so fundamental as to require reversal of prior convictions as “plain error” and whether the court can look to evidence beyond the trial record in making those determinations.
[Wednesday’s cases involve technical patent law and appellate costs and are not recommended for the casual observer]
Monday, April 26
Important cases today bringing First Amendment challenges to laws that require charities to disclose their major donors on tax filings: Thomas More Law Center v. Rodriquez and Americans for Prosperity v. Rodriquez. See the Public Citizen summary and then the 9th Circuit decision.
Guam v. U.S. involves a fascinating factual context but will largely revolve around technical legal issues. In the 1940s, the U.S. Navy operated the Ordot Dump in Guam, and allegedly disposed of Agent Orange, DDT, and munitions there. In 1950, the Guam Organic Act formally transferred power from the United States to Guam’s newly formed civilian government. In the 1980s, the EPA focused on the Ordot Dump, initially involving the Navy but ultimately ordering Guam to clean it up. There was eventually a court settlement and, several years later, a lawsuit by Guam against the Navy under CERCLA, the Comprehensive Environmental Response, Compensation, and Liability Act, which creates the ability to sue for “cost-recovery” and “contribution.” The statute of limitations for “cost-recovery” and “contribution” are different, and which one Guam must rely on determines whether its case can proceed or is time-barred. The DC Circuit decision is probably the best place to start.
Tuesday, April 27
The second case today involves immigration law and procedural issues, which are nicely summed up by the opening of the 9th Circuit decision:
Refugio Palomar-Santiago is a Mexican national who was granted permanent resident status in the United States in 1990. In 1991, he was convicted of a felony DUI in California. In 1998, he received an Notice to Appear from the Immigration and Naturalization Service informing him that he was subject to removal because the DUI offense was classified as a crime of violence under 18 U.S.C. § 16 and thus considered an aggravated felony for purposes of 8 U.S.C. § 1101(a)(43). After a hearing before an IJ, Palomar-Santiago was deported on that basis. Three years later, the Ninth Circuit determined that the crime Palomar-Santiago was convicted of was not a crime of violence. United States v. Trinidad-Aquino, 259 F.3d 1140, 1146-47 (9th Cir. 2001). This determination applied retroactively. United States v. Aguilera-Rios, 769 F.3d 626, 633 (9th Cir. 2013).
By 2017, Palomar-Santiago was again living in the United States, this time without authorization. That year, a grand jury indicted him for illegal reentry after deportation under 8 U.S.C. § 1326. Palomar-Santiago moved to dismiss the indictment under 8 U.S.C. § 1326(d). Under § 1326(d), a district court must dismiss a § 1326 indictment if the defendant proves (1) he exhausted any administrative remedies that may have been available to seek relief against the order; (2) he was deprived of the opportunity for judicial review at the deportation hearing; and (3) that the deportation order was fundamentally unfair. 8 U.S.C. § 1326(d). However, a defendant need not prove the first two elements if he can show the crime underlying the original removal was improperly characterized as an aggravated felony and need not show the third element if he can show the removal should not have occurred.
Wednesday, April 28
An interesting and critically important case about student First Amendment rights is first, Mahanoy Area School District v. B.L. After making the JV instead of the varsity cheerleading team, a student posted a snapchat picture of herself captioned “Fuck school fuck softball fuck cheer fuck everything.” She was suspended from the team, and sued. The Third Circuit noted that schools traditionally have had significant disciplinary discretion for on-campus activities only, with greater constitutional limits on control over off-campus activity; “[t]he digital revolution, however, has complicated that distinction.” That decision offers a useful survey of student speech cases, from Tinker through Morse (the “bong hits for Jesus” case). I’d also recommend the Student Press Law Center’s amicus brief. Really important questions about just what, if anything, is beyond the reach of school disciplinary policies.
[The last case this month is about FERC’s authority and not recommended to the casual observer.]