immigration law – Prof. Zachary Wolfe, Esq.

The last set of regularly scheduled arguments for the “October 2023 term” will take place April 22-25. Many extremely important and high-profile cases were saved for the end: anti-homelessness ordinances, immigration, union injunctions, abortion, and Trump’s claim of immunity.

Monday, April 22

The first case today concerns the Eighth Amendment and anti-homelessness ordinances. The Supreme Court has held that it is cruel and unusual, in violation of the Eighth Amendment, to punish someone for a “status” over which they have no control. Historically, this struck down laws that made it a crime not merely to use drugs but to be addicted to drugs – but obviously, it is very challenging to distinguish between laws that outlaw a status and laws that outlaw an action that one engages in as an inevitable consequence of that being in that status. In more recent years, the 9th Circuit, in particular, has applied this principle to bar the state from enforcing camping bans and similar anti-homelessness measures when there is inadequate shelter space or other free housing available. As Amy Howe notes in her useful argument preview, the rationale was that ”just as the city could not punish someone for their status – being homeless – it also could not punish them for conduct ‘that is an unavoidable consequence of being homeless.’” Now, in City of Grants Pass v. Johnson, an Oregon city asks the Supreme Court to reject that application of the principle. That city is joined in amici briefs supporting them filed by an extraordinary array of both progressive and conservative cities and half the states in the country.

It should be a fascinating argument. Expect it to run long; the Solicitor General is participating in the argument, which means that there will be a third round of each Justice getting to ask questions of the arguing lawyer after that person’s time has expired.

The Court hears a second argument this morning,

concerning the Federal Arbitration Act, but it is highly procedural and not one I would recommend to the casual observer. Briefly, plaintiffs brought a lawsuit in federal court then recognized that all claims are subject to mandatory arbitration. The court then dismissed the suit “without prejudice” (meaning the plaintiffs can re-file if something changes to create a viable legal theory). The trick is that the FAA instructs the courts to “stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement.” 9 U.S.C. § 3. The Ninth Circuit held that the district court nevertheless had discretion to dismiss the case, rather than stay it, because all parties agreed that all claims were subject to arbitration. The Supreme Court has granted cert. on precisely that (“Whether Section 3 of the Federal Arbitration Act requires district courts to stay a lawsuit pending arbitration, or whether district courts have discretion to dismiss when all claims are subject to arbitration.”).

Tuesday, April 23

Department of State v. Muñoz involves the rights of a U.S. citizen to demand due process for their non-citizen spouse. Muñoz married a citizen of El Salvador and later filed a family-based immigrant visa petition. All was proceeding well for them until the final step, which was for the husband to return to El Salvador for an in-person interview at the US Embassy. The consular officer rejected his visa application, apparently out of suspicion that his tattoos signified gang affiliation. 8 U.S.C. § 1182(a)(3)(A)(ii) is a “catch-all provision” permitting consular officers to reject anyone they believe will participate in “unlawful activity” in the United States. The citizen wife brought suit in federal court, and the Supreme Court has granted cert. on two issues: “(1) Whether a consular officer’s refusal of a visa to a U.S. citizen’s noncitizen spouse impinges upon a constitutionally protected interest of the citizen; and (2) whether, assuming that such a constitutional interest exists, notifying a visa applicant that he was deemed inadmissible under 8 U.S.C. § 1182(a)(3)(A)(ii) suffices to provide any process that is due.”

It should be interesting arguments. There is an additional interesting overlay in that Congresswoman Judy Chu attempted to intervene but was stymied by State — so also take a look at the amicus brief from Members of Congress on the role of Congress.

The second argument today

is procedural but an important and interesting issue of labor rights. In Starbucks Corp. v. McKinney, workers organized a union at Starbucks and seven of them were fired; their union filed unfair labor practices charges with the National Labor Relations Board. McKinney is a regional director of theNLRB, who petitioned a federal court for an injunction returning the employees to work, pending completion of the Board’s proceedings. The court agreed and granted the requested order.

The National Labor Relations Act specifies that the NLRB may “petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred . . . for appropriate temporary relief.” 29 U.S.C. § 160. Courts have interpreted this to mean that an order should be granted if there is “reasonable cause” to believe the unfair labor practice occurred and the relief requested is “just and proper,” and both the lower court and the Sixth Circuit agreed that standard was met here. But Starbucks argues that the courts should instead apply the typical four-factor test for other forms of preliminary injunctions. Like other Circuits, the Sixth held that the other test is not applicable to the powers of the NLRB specifically authorized by federal statute. The Supreme Court has accepted cert. to resolve which standard should be applied to NLRB-sought injunctions. See an interesting amicus brief by labor and employment law professors.

Wednesday, April 24 – abortion

A specific application of the abortion debate and healthcare access today, in a case that I’m surprised we haven’t heard more about, Moyle v. U.S. Idaho criminalizes nearly all forms of abortion, except those that are “necessary to prevent the death of the pregnant woman,” ectopic pregnancy, or rape or incest in limited circumstances; it does not provide an exception for health of the mother. Federal law, however, requires hospitals that receive federal funds to provide “necessary stabilizing treatment” for any “emergency medical condition.” Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. 1395dd(b).

After Dobbs, HHS issued a formal guidance document interpreting EMTALA and concluding that federal law preempts state law, such that “If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment. When a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.”

The Idaho law has, since then, been challenged and received different preliminary outcomes in several court proceedings. See the NWLC fact sheet for full details. Arguments and lines are quite predictable, so I won’t say more except to point out an interesting amici brief from “current and former local prosecutors and law enforcement leaders from across the country” arguing that EMTALA should preempt state laws because “these state laws ask prosecutors and law enforcement—like amici—to second-guess emergency room physicians’ judgments about these indeterminate medical matters when initiating investigations, arrests, or prosecutions.”

Thursday, April 25 – Trump immunity

Trump v. U.S. is the case in which “Trump claims absolute immunity from criminal prosecution for all ‘official acts’ undertaken as President, a category, he contends, that includes all of the conduct alleged in the Indictment” for conspiring to overturn the election. The full D.C. Circuit opinion is really worth your time to review; many observers were surprised the Supreme Court didn’t just deny cert. and let that decision stand. Amy Howe also has a useful summary. Expect extreme lines and lots of activity out front for this one.

A very unusual Friday oral argument has been scheduled for January 7, in cases concerning the federal vaccine mandate. Plus cases concerning Medicaid, immigration law, a religious flag on a City Hall flagpole, FEC v. Ted Cruz for Senate, and the Court’s first consideration of the First Step Act.

The Court will continue with last fall’s practice of in-person arguments with Justices, arguing counsel, and reporters only (at least through February cases). The rest of us can listen in live online. Arguments start quite promptly at 10:00 and the easiest way to listen is to go to https://www.supremecourt.gov and click the “live audio” icon. I’ve noticed that if you try to launch the audio early, you’ll get an error right about 9:59; just refresh the page then. See this page for non-live options.

Friday, Jan 7 – Vaccine Mandate

A group of states and a group of employers have challenged the federal OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard. In essence, employers of 100 or more employees are to require proof of Covid-19 vaccination by January 10 and are to begin requiring weekly testing by February 9 for any employee who elects that option in lieu of vaccination. There have been a series of decisions that have blocked implementation in about half of the states, and the Court will decide whether the rule can be enforced pending resolution of those challenges. There’s a good summary here. Since then, the states and the employer groups have asked for divided argument, so each will get 15 minutes (with the federal government allotted 30). But, of course, expect this day to run very long. Filings for both National Federation of Independent Business v. Dept of Labor and Ohio v. Dept of Labor are here.

Monday, Jan 10

Just one case today, an unusual case involving Medicaid and private lawsuits. A 13-year old girl suffered severe injuries, the medical expenses of which were mostly paid for by Florida’s Medicaid program, after she was hit by a truck after exiting a school bus. Eventually, the family obtained a settlement for $800,000 against the truck driver, in part to cover both future and past medical expenses. Florida then filed a lien, seeking reimbursement of expenses it had covered. The family sued to block enforcement of that lien, won in the trial court (which found that the federal Medicaid Act preempted such state actions), but lost at the 11th Circuit. More details about Gallardo v. Marstiller here.

Tuesday, Jan 11

Two related (but not consolidated; separate 1-hour arguments) immigration law cases today, Johnson v. Arteaga-Martinez and Garland v. Gonzalez. As Scotusblog explains, “Both cases involve noncitizens who have been ordered deported but claim they are entitled to ‘withholding’ protection – a form of humanitarian relief in which noncitizens cannot be deported to their home country because they may be tortured or persecuted there. The noncitizens argue that, after spending more than six months in immigration detention awaiting the resolution of their withholding claims, they are entitled to a hearing before an immigration judge to determine whether they can be released on bond.” The Court has accepted cert. in both cases on the question “[w]hether an alien who is detained under 8 U.S.C. § 1231 is entitled by statute, after six months of detention, to a bond hearing at which the government must prove to an immigration judge that the alien is a flight risk or a danger to the community,” but the second argument, Garland v. Gonzalez, adds “whether, under 8 U.S.C. § 1252(f)(1), the courts below had jurisdiction to grant classwide injunctive relief.”

[The case on Wednesday, Jan 12, is a technical tax law procedural issue not recommended for the casual observer]

[The Court is closed on Monday, Jan 17, in observance of MLK Day]

Tuesday, Jan 18

First up is an interesting case combining government speech and religion issues, Shurtleff v. Boston. The three flag poles in front of Boston City Hall fly the US flag, the Massachusetts flag, and typically the Boston City flag — but at a rate of about twice a month, that third pole instead flies a flag requested by a private organization. A regligious organization sought to fly a flag with a Latin cross, but was denied because the City said that would constitute endorsement of religion. The First Circuit held that the display of flags on the City’s flagpole constituted government speech, which is not constrained by the First Amendment in the way that private speech is: “Because the City engages in government speech when it raises a third-party flag on the third flagpole at City Hall, that speech is not circumscribed by the Free Speech Clause. . . . The City is therefore ‘entitled’ to ‘select the views that it wants to express.'” In this instance, the court explained, “the City exercised those rights by choosing not to fly the plaintiffs’ third-party flag. . . . Should the citizenry object to the City’s secular-flag policy or to its ideas about diversity, the voters may elect new officials who share their concerns. . . . After all, it is the electorate and the political process that constrains the City’s speech, not the Free Speech Clause.” That decision is quite accessible, but there is also NY Times coverage for more plain-language discussion. The array of amici briefs filed in this case is also worth a look, if only to note the strange bedfellows — the ACLU is arguing for the religious group petitioner, while the National Council of the Churches of Christ, representing “more than 100,000 local congregations and 40 million adherents,” has joined with other religious and civil rights organizations to argue that “that an official governmental display of the Christian Flag in front of a city hall is exclusionary to the countless Americans not represented by that religious symbol. . . . And it elevates the sacred symbol of one faith in ways that many denominations and individuals who adhere to the favored religion also find intrusive on and corrosive of their beliefs and fundamental religious freedom.”

Today’s second argument, in Cassirer v. Thyssen-Bornemisza Collection Foundation, is a technical procedural issue arising out of an incredibly loaded context. The official question presented is “Whether a federal court hearing state law claims brought under the Foreign Sovereign Immunities Act must apply the forum state’s choice-of-law rules to determine what substantive law governs the claims at issue, or whether it may apply federal common law.” But the case concerns attempts to recover a painting that “was stolen from the family of Holocaust survivor Lilly Cassirer by the Nazi regime in 1939. The painting was illegally transferred from Germany into California after World War II and traded privately in the United States between 1951 and 1976. The Thyssen-Bornemisza Collection Foundation, a subsidiary of the Kingdom of Spain, purchased the painting from Baron Hans Heinrich Thyssen-Bornemisza in 1993.” Take a glance at some of the filings; the US has filed a brief in support of the family, sticking to the technical FSIA issue, while B’Nai B’rith has highlighted the context.

Wednesday, Jan 19

FEC v. Ted Cruz for Senate is the first case today. The Bipartisan Campaign Reform Act of 2002 (BCRA), in an attempt to limit corruption and appearances of corruption, requires campaigns to repay personal loans from candidates with pre-election funds and within 20 days of the election. In an apparent attempt to challenge that law, Ted Cruz loaned his campaign $260,000 on the day before the election, with $5,000 in personal funds and a $255,000 loan secured by his personal assets, and then the campaign failed to repay Cruz as required by BCRA. A three-judge panel in DC held “that the loan-repayment limit burdens political speech and thus implicates the protection of the First Amendment. Because the government has failed to demonstrate that the loan-repayment limit serves an interest in preventing quid pro quo corruption, or that the limit is sufficiently tailored to serve this purpose, the loan-repayment limit runs afoul of the First Amendment.” Take a look at that ruling and the amicus brief from the Brennan Center arguing that the panel got it wrong.

The last case this month is the Court’s first consideration of the First Step Act. In 2010, the Fair Sentencing Act addressed disparities in sentences for crack versus powder cocaine, but those changes were not retroactive. Then the 2018 First Step Act provided that a court “may … impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act … were in effect at the time the covered offense was committed.” This particular case has a number of complications, but it appears the Court wants to address a “Circuit split,” in which the Circuit courts have disagreed as to the level of resentencing consideration that is required (versus discretionary) under the First Step Act. It accepted cert. on “Whether, when deciding if it should ‘impose a reduced sentence’ on an individual under Section 404(b) of the First Step Act of 2018, a district court must or may consider intervening legal and factual developments.” I recommend reading the First Circuit decision and this interesting amicus brief from DC and 16 other states and territories arguing for an expansive reading of the First Step Act.

Tag: immigration law

Final arguments of the term – April 22-25.