I'm posting this before the Court finishes the January block of arguments (previewed below) because the deadline to enter the lottery system for a chance to attend arguments in person is 4 weeks before the argument date. The cases concerning the takings clause, Second Amendment, and appeal waivers, in particular, should be excellent choices for anyone looking for this experience.
Monday, February 23
Two cases today concerning the Cuban Revolution and confiscated property and legal actions using the Cuban Liberty and Democratic Solidarity Act, often called Helms-Burton and also known as the LIBERTAD Act.
First up is Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., with legal issues focused on liability for use of confiscated property. In 1905, Havana Docks was granted an exclusive lease to possess and financially benefit from docks and terminal at the Port of Havana. Before the revolution, that lease was for a term of 99 years, to expire in 2004; shortly after the revolution, Cuba nationalized the docks. Helms-Burton creates a cause of action against anyone who “traffics” in “property which was confiscated by the Cuban Government on or after January 1, 1959.” 22 U.S.C. § 6082(a)(1)(A). So Havana Docks sued various cruise ship companies that had been using the docks and won in the US District Court. But the cruise companies were using the docks between 2016 and 2019, when Havana Docks's lease would have been expired in any event, so the 11th Circuit reversed, because the company's "limited property interest had expired . . . at the time of the alleged trafficking by the cruise lines." A dissenting opinion and Havana Docks emphasize that the property nevertheless "was confiscated," in the terms of the statute, when the lease had not yet expired, and they argue that the 11th Circuit narrows the ability to use the statute beyond what Congress intended.
The second case, Exxon Mobil Corp. v. Corporación Cimex, S.A., involves suit against a Cuban governmental entity and therefore asks if Helms-Burton creates another exception to foreign sovereign immunity, or if, as the DC Circuit held, the plaintiffs must identify a basis under the Foreign Sovereign Immunities Act.
Tuesday, February 24
The only argument today, Enbridge Energy, LP v. Nessel, is a civil procedure case and not one for the casual observer: Whether district courts have the authority to excuse the 30-day procedural time limit for removal in 28 U.S.C. § 1446(b)(1).
Wednesday, February 25
The Court returns to an issue that occasionally captures public interest: the takings clause and tax sales. Pung v. Isabella County is particularly compelling because there was a back-and-forth concerning whether this Michigan homeowner was exempt from a local schools tax and the county ultimately foreclosed over less than $2,500 in back taxes and retained the entire $76,000 sale amount. Before the trial court, Pung won a return of the difference between the owed taxes and the sale amount but lost on a claim that he should have been reimbursed for loss of true market value. There is thus also an 8th Amendment claim: that taking property far more valuable than the claimed debt, and selling it below market value at a state-controlled auction, constitutes an excessive fine.
The case surprisingly has not received much attention from the mainstream or legal press. The 6th Circuit opinion is a good starting point for the detailed facts and legal issues. The amici filings are also interesting and reveal unusual bedfellows, with Legal Services on the same side as Cato.
This is the only argument today and the Solicitor General has asked to participate, so expect arguments to run long. (When an arguing counsel's time expires, the Justices take turns in order of seniority to ask another round of questions, with no time limit. So of course it takes longer with three arguing counsel including the SG than if only the petitioner and respondent were being so questioned.)
Monday, March 2
Another Second Amendment case today, this time asking "Whether 18 U.S.C. § 922(g)(3), the federal statute that prohibits the possession of firearms by a person who 'is an unlawful user of or addicted to any controlled substance,' violates the Second Amendment as applied to respondent." Duke Law has a useful explainer and summary of conflicting Circuit court opinions. There's also this intriguing suggestion that the wording of the statute could be read narrowly to convert it from a ban on possession by people of a certain status (as most have interpreted it) and instead read it to apply "only to people who are armed while intoxicated." In this case, United States v. Hemani, the indictment alleged only that he was a regular user of marijuana, promethazine, and cocaine; it did not allege he was on those substances while in possession. I also commend an amicus brief by Everytown for Gun Safety that relies on post-Reconstruction history.
Only one case today.
Tuesday, March 3
Hunter v. United States involves the enforceability of arguably unconstitutional sentences when the defendant has agreed to a plea deal that includes a general waiver of the right to appeal. Hunter pled guilty to wire fraud and the judge imposed, along with jail time, an obligation to take all prescribed mental heath medications. The written plea agreement contained a waiver of the right to appeal on any basis other than ineffective assistance of counsel. But as the medications condition was being discussed and objected to, the judge said "you have the right to appeal" and that his lawyer would continue representing him in such an appeal. The government did not object to that statement. Hunter later challenged that medication condition on due process grounds, but the 5th Circuit dismissed, finding no right to raise constitutional claims other than ineffective assistance notwithstanding the judge's statement. Notably, as the National Association of Criminal Defense Lawyers explain in their amicus brief, other courts of appeal have held that the ability to appeal certain core constitutional rights cannot be waived.
The Court has accepted cert. on "(1) Whether the only permissible exceptions to a general appeal waiver are for claims of ineffective assistance of counsel or that the sentence exceeds the statutory maximum; and (2) whether an appeal waiver applies when the sentencing judge advises the defendant that he has a right to appeal and the government does not object."
Again, only one case today.
Wednesday, March 4
The final argument in this block of cases, Montgomery v. Caribe Transport II, LLC, is a rather technical federal preemption issue in a unique context: essentially, whether state laws that might impose liability on brokers who negligently hire drivers are enforceable or rather are preempted by federal law. (In the official question presented, "Whether a federal statute, 49 U.S.C. § 14501(c), preempts a state common-law claim against a broker for negligently selecting a motor carrier or driver.") Not one I would recommend for the casual observer, but the 7th Circuit opinion is fairly direct, and there is a quite readable brief from "preemption scholars."