immigration – Prof. Zachary Wolfe, Esq.

January 2024 Cases

January 4, 2024case suggestions

The big Chevron deference cases are at the end of this block of arguments, but the Court will first hear cases on immigration procedure, mootness in the context of civil rights and the No-Fly list, the unconstitutional conditions doctrine, the confrontation clause for expert testimony, and the takings clause.

Monday, January 8

First up is an immigration procedure question with another grammar kicker! When initiating deportation proceedings, the Immigration and Nationality Act requires the government to serve a “notice to appear” that includes the time and place of the hearing. 8 U.S.C. § 1229. According to the petition, “[f]or years,” the government has instead served an initial notice that does not include the time and place but rather “supplies that information in a standalone ‘notice of hearing’ that it serves later — at times, years later.”

If correct procedures are followed, then the individual’s failure to appear results in a default judgment and order of removal. Paragraph (1) of the relevant section requires the “notice to appear” to include the time and place; paragraph (2) requires a separate document “in the case of any change or postponement in the time and place”; and a separate section provides that the order of removal can be rescinded if “the alien did not receive notice in accordance with paragraph (1) or (2).”

A group of linguists filed an amici brief arguing that “[f]rom a linguistic standpoint, the negative
disjunction ‘not A or B’ is ambiguous between two literal semantic interpretations. First, it can be
interpreted as [neither A nor B]. We will call this the neither-nor interpretation. . . . Second, the negative disjunction ‘not A or B’ can be interpreted as [either not A or not B]. Here we refer to this interpretation as the either-or interpretation.” They ultimately argue that “regardless of how the rescission condition is disambiguated, the plain text of the condition provides insufficient support for the Government’s understanding of the condition.”

Today’s argument covers two cases, Campos-Chaves v. Garland and Garland v. Singh, the later of which involves two parties. But the Court has consolidated the cases for one hour of argument total and denied the request for divided argument that would have allowed counsel for all 3 noncitizens to present separate arguments. So I would expect the “one hour” argument to run the now-usual two hours (or so), but not longer.

The second case involves the No-Fly list and a rather horrifying set of background facts, but the legal issue concerns the more procedural standard for mootness. In FBI v. Fikre, a US citizen was stranded in Sudan when placed on the No-Fly list after he refused to become an FBI informant, after which he was imprisoned and tortured in the UAE. He eventually managed to return to the US and brought suit against the FBI. (All these facts are compellingly summarized on this scotusblog article.)

But the Court has accepted cert. only on “Whether respondent’s claims challenging his placement on the No Fly List are moot given that he was removed from the No Fly List in 2016 and the government provided a sworn declaration stating that he ‘will not be placed on the No Fly List in the future based on the currently available information.'” The 9th Circuit held that this assurance is not enough to moot the case, because the government instead would have to make it “absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”

Tuesday, January 9

The Court considers the “unconstitutional conditions” doctrine in Sheetz v. County of El Dorado, California. That doctrine prohibits the government from denying a benefit in a way that infringes a constitutional right and is usually thought of in the First Amendment context. However, as Oyez explains, “The U.S. Supreme Court in Nollan (1987) and Dolan (1994) recognized that land-use permit applicants ‘are especially vulnerable to the type of coercion that the unconstitutional conditions doctrine prohibits.’ Under those cases, the government may condition approval of a land-use permit on the owner’s dedication of property to public use if the government can prove that an ‘essential nexus’ and ‘rough proportionality’ exist between the demanded property and the impacts of the owner’s project.” This case challenges the county’s “Traffic Impact Mitigation (TIM) Fee Program” imposed on certain building permits.

The second case today involves retrospective refunds of Bankruptcy fees, and is not one I’d recommend to the casual observer.

Wednesday, January 10

The only case today involves the confrontation clause in the context of expert witnesses. In Smith v. Arizona, Smith was convicted of possession of marijuana but the substance was established to be marijuana on the basis of testimony from an expert who did not perform any tests on the substance but only relied on the reports of another expert who did not testify. The Arizona Court of Appeals upheld the conviction, noting that the defendant could have called the expert who performed the tests himself. The Innocence Network and others offer an interesting amici brief noting that “[t]he misapplication of forensic science is one of the leading causes of wrongful convictions, present in 24% of proven exonerations,” and arguing that “[f]oregoing a cross-examination requirement of the original analyst prevents the criminally accused from being able to reveal the fraud, bias, or error that may have tainted the evidence against them.”

[The Court is closed on Monday, January 15 in observance of Martin Luther King, Jr. Day]

Tuesday, January 16

The first case today is a technical issue involving pleading standards for lawsuits based on violations of SEC regulations, and is not one recommended for the casual observer.

Next up is a takings clause case — challenging a 5th Circuit decision that many observers found rather bizarre (e.g. this ABA Journal piece). Many constitutional rights are vindicated by filing suit under 42 U.S.C. § 1983, which authorizes a lawsuit for deprivations of rights under color of law. However, states themselves are not subject to suit under § 1983. And in this case, Texas argued that landowners cannot bring suit directly under the Fifth Amendment — and the Fifth Circuit agreed, rather summarily reversing a magistrate’s ruling that noted that Texas’s position would “eviscerate[] hundreds of years of Constitutional law in one fell swoop.” The Court has accepted cert. on “Whether a person whose property is taken without compensation may seek redress under the self-executing takings clause of the Fifth Amendment even if the legislature has not affirmatively provided them with a cause of action.”

Wednesday, January 17 — Chevron Deference

These are the heavily anticipated cases (Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo) with huge potential to disrupt the power of executive agencies and the role of the administrative state, by reconsideration of Chevron deference.

A very brief primer: Congress often passes laws with broad policy positions and some directly enforceable language, but then empowers administrative agencies to adopt specific regulations to implement those laws. For example, Congress can’t approve every new pharmaceutical or respond to every newly identified environmental or health hazard, so it sets broad standards and empowers the FDA, EPA, CPSC, OSHA, and other agencies to do so. But when are those statutory standards violated, and how much leeway does the agency have to make that call and set regulations to implement them? Does the release of 3 ppm of chemical compound X violate the Clean Water Act, or should it be okay to discharge 5 ppm? Under “Chevron deference,” when the Congressional language is “ambiguous,” courts defer to the agency’s interpretation as long as it is “reasonable.”

In recent years, more and more members of the Court have questioned the role and power of administrative agencies. In two cases set for argument today, the Court has signaled an interest in taking on the fundamental question: “Whether the court should overrule Chevron v. Natural Resources Defense Council, or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.”

These are incredibly important cases but it won’t be easy to follow the arguments; the issue is easy to understand in principle, but much more difficult when you try to actually draw lines and deal with implications. The organization that was part of the original Chevron case has an interesting and readable article. Also, an amici brief from administrative law professors might provide helpful background to understanding the arguments. And finally, I strongly recommend you consider this perspective on the implications for civil rights laws.

There are two cases with the same “question presented” but they have not been consolidated for oral arguments. Expect this one to run very long (I’m guessing at least 3 and probably more like 4 hours).

February (& March 1-2) cases

February 21, 2022case suggestions

This month’s oral arguments have not received the attention of some earlier abortion and other high-profile cases, but involve a range of interesting and important issues. The case involving the EPA’s climate change authority, especially, deserves careful attention.

Tuesday, February 22

The cases today are two variations on Native American sovereignty issues. (Not consolidated; separate one-hour arguments.)

First up is Ysleta del Sur Pueblo v. Texas, involving the tribe’s authority to conduct bingo and other gambling, notwithstanding Texas law. The Fifth Circuit described the dispute as centered on “which federal law governs the legality of the Pueblo’s gaming operations—the Restoration Act (which bars gaming that violates Texas law) or the more permissive Indian Gaming Regulatory Act (which ‘establish[es] … Federal standards for gaming on Indian lands’).” It held that because the “Restoration Act controls, the Pueblo’s gaming is prohibited.” But the Supreme Court’s characterization of the question presented is perhaps a bit revealing: “Whether the Ysleta del Sur Pueblo and Alabama-Coushatta Indian Tribes of Texas Restoration Act provides the Ysleta del Sur Pueblo with sovereign authority to regulate non-prohibited gaming activities on its lands (including bingo), as set forth in the plain language of Section 107(b), the act’s legislative history and the Supreme Court’s holding in California v. Cabazon Band of Mission Indians, or whether the U.S. Court of Appeals for the 5th Circuit’s decision affirming Ysleta del Sur Pueblo v. Texas (Ysleta I) correctly subjects the Pueblo to all Texas gaming regulations.”

The second case, Denezpi v. United States, involves tribal sovereignty in the context of criminal law, and specifically double jeopardy. The Court has long held (and recently reaffirmed) that the Constitution’s prohibition on double jeopardy does not restrict prosecutions by different “sovereigns” — so the federal government is free to prosecute a person for the same conduct that already resulted in a state conviction (or acquittal). Thus the importance of the status of tribal courts, and the question presented in this case: “Whether the Court of Indian Offenses of Ute Mountain Ute Agency is a federal agency such that Merle Denezpi’s conviction in that court barred his subsequent prosecution in a United States district court for a crime arising out of the same incident.”

Both cases are nicely summarized here. There’s also an interesting amici brief on the criminal courts case from a group of “federal Indian law scholars and historians.”

Wednesday, February 23

An important administrative procedure case today, in the context of immigration law. Arizona v. City and County of San Francisco. Immigrants may be turned away, under the Immigration and Nationality Act, if they are likely to become a “public charge.” That term had long been understood to describe receipt of cash welfare benefits. The Trump Administration adopted a formal regulation that expanded “public charge” to include receipt of certain non-cash benefits, like Section 8 housing and SNAP benefits. Lawsuits challenged that rule, there were various provisional wins and losses for both sides at early stages of the litigation (the full history is set out here), but ultimately the Biden Administration came to power and announced that it would no longer defend the rule. It is not uncommon for new administrations to both decline to defend lawsuits and to embark on the process of formally rescinding or replacing regulations — which is a long and quite involved process. But in this case, according to the 9th Circuit:

the new administration didn’t just stop defending the prior administration’s rule and ask the courts to stay the legal challenges while it promulgated a new rule through the ordinary (and invariably time- and resource-consuming) process envisioned by the APA. Instead, together with the plaintiffs challenging the rule, it implemented a plan to instantly terminate the rule with extreme prejudice—ensuring not only that the rule was gone faster than toilet paper in a pandemic, but that it could effectively never, ever be resurrected, even by a future administration. All while avoiding the normal messy public participation generally required to change a federal rule. Not bad for a day’s work.
9th Cir.

Now, other states want to join the lawsuit to defend the Trump Administration rule. The Court has accepted cert. only on the question of “Whether states with interests should be permitted to intervene to defend a rule when the United States ceases to defend.”

This is the only case scheduled for today. Expect the arguments to run long.

Monday, February 28 — EPA climate change authority

An important set of cases today concerning EPA’s authority, which has largely slipped under the mainstream radar. The Court has consolidated four cases against the EPA, brought by West Virginia, North Dakota, North American Coal Corp., and Westmoreland Mining Holdings.

Briefly, the issues began when Obama Administration enacted the Clean Power Plan, perhaps the country’s most ambitious effort to reduce carbon emissions. The regulations were immediately challenged as unconstitutional and beyond EPA’s authority. While the litigation was ongoing, the Trump Administration rescinded the plan and replaced it with the “Affordable Clean Energy” rule, but litigation continued. Then the Biden Administration has said it will not reinstate the Obama plan but rather will issue a new plan; it asked the Court to decline to hear this case and to instead address any challenges to the new rule after if is announced. However, the Court instead accepted cert. on “Whether, in 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, Congress constitutionally authorized the Environmental Protection Agency to issue significant rules — including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy — without any limits on what the agency can require so long as it considers cost, nonair impacts and energy requirements.”

This is an exceedingly important case but the legal issues will be hard to follow. Start with this thorough and readable summary. Then take a look at the DC Circuit ruling and one or more of the vast array of amici briefs that have been filed in this case.

Tuesday, March 1

First up is a pair of consolidated cases (one hour total), Ruan v. United States and Kahn v. United States, involving the Controlled Substances Act and “pain management” practices. Doctors in both cases were convicted of prescribing opiates and other drugs in violation of the CSA (and sometimes for personal gain), but they assert the drugs were prescribed in a good faith belief that the prescriptions were appropriate. More here. Not the most sympathetic defendants, at least as described in the 11th Circuit decision, but some conservative and libertarian groups (e.g. Cato’s amicus brief) are lining up with others to defend the idea of a good faith defense.

The second case today, Marietta Memorial Hospital Employee Health Benefit Plan v. Davita, is a complex case involving “the scope of the Medicare Secondary Payer Act (MSPA) as it relates to the treatment of patients with end-stage renal disease (ESRD).” The arguments won’t be easy to follow, so see the explanation here.

Wednesday, March 2 — Scope of Bivens

Scotusblog offers a useful intro to the case today, Egbert v. Boule:

Fifty years ago, in Bivens v. Six Unknown Federal Narcotics Agents, the Supreme Court ruled that a private individual could sue a federal agent for violating his Fourth Amendment rights, even when there was not a specific law authorizing a claim for damages. In the nine years after Bivens, the court recognized Bivens claims for damages for violations of the Fifth and Eighth Amendments, but in 2017 it stressed that “expanding the Bivens remedy is now a disfavored activity.”
On Friday, the justices agreed to decide whether a Bivens remedy should be available to the owner of an inn on the U.S.-Canada border who alleges that a U.S. Border Patrol agent violated both his Fourth Amendment rights and his First Amendment rights. But the justices declined a request to reconsider Bivensitself.
Scotusblog

According to the 9th Circuit decision, Mr. Boule “operates and lives in a bed and breakfast in the state of Washington, on land which touches the United States-Canada border. Plaintiff alleged that a border patrol agent entered the driveway of plaintiff’s property to question arriving guests; used excessive force against plaintiff, and then, in response to plaintiff’s complaints, retaliated against plaintiff by, among other things, contacting the Internal Revenue Service, asking the agency to look into plaintiff’s tax status.”

It should be a very interesting argument. Take a look at the range of amicus briefs filed in this case — it’s not often we see the Reporters Committee for Freedom of the Press and CAIR on the same side as libertarian groups like Institute for Justice and FIRE.

April cases

April 13, 2021case suggestions

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.]

Feb 22 – March 3 Cases

February 21, 2021case suggestions

With the Court removing from the calendar the “remain in Mexico” case (which had been scheduled for argument on March 1) in light of changed positions under the new Administration, the main focus of attention will be on the Voting Rights Act cases on March 2. But there are also cases involving immigration appeals, the “hot pursuit” doctrine, and the appointments clause. A quick reminder that C-SPAN seems to offer the most reliable stream to listen in live (at 10am; no second round of arguments on the days listed below), or see this page for ways to take in the arguments a bit later.

[Feb 22‘s sole case will have rather narrow appeal: Florida v. Georgia, “Whether Florida is entitled to equitable apportionment of the waters of the Apalachicola-Chattahoochee-Flint River Basin and appropriate injunctive relief against Georgia to sustain an adequate flow of fresh water into the Apalachicola Region”]

Tuesday, February 23

The two cases today (consolidated for 1 hour of argument total) involve presumptions and procedures in immigration cases. In Rosen v. Dai, Dai sought asylum and testified that he would face torture if returned to China. The immigration judge and the Board of Immigration Appeals ruled against him, but never explicitly held that his testimony lacked credibility. On appeal, the 9th Circuit held that in the absence of such a finding, Dai was entitled to a presumption that his testimony was credible. Somewhat similarly, in Rosen v. Alcaraz-Enriquez the BIA relied on a probation report to find that Alcaraz-Enriquez was a danger to the community and therefore not entitled to withholding of removal, but did not explicitly find that his testimony (which contradicted the probation report) was not credible. In both cases, the Court has accepted cert. on “Whether a court of appeals can presume that an immigrant’s testimony is credible if an immigration judge or the Board of Immigration Appeals did not specifically find that he was not credible.”

Wednesday, February 24

Lange v. California is an interesting case about the limits of the “exigent circumstances” and “hot pursuit” exceptions to the warrant requirement. A California Highway Patrol officer stopped Lange’s garage door from closing and entered his garage without a warrant, which would ordinarily be required under the 4th Amendment. However, the officer had followed him there after Lange refused to stop after the officer turned on the patrol car lights. The prosecutor argued that Lange’s “failure to yield” constituted exigent circumstances. But this all began simply because Lange was playing his car stereo loudly and honked his horn a few times. The Court has accepted cert. on “Whether the pursuit of a person whom a police officer has probable cause to believe has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant.” In addition to the first link (a helpful overview of the case), see the decision below.

Monday, March 1

Three consolidated cases (one hour total) today involving the Patent Office and the “appointments clause.” The Constitution (Art. II § 2) requires that “Officers of the United States” be appointed by the President and confirmed by the Senate. The Court has interpreted this to mean “principal officers” who exercise considerable authority, not every federal employee. In late 2019, the Federal Circuit held that Administrative Patent Judges are principal officers and therefore the existing system of their being appointed by the Secretary of Commerce was unconstitutional — which raises all sorts of issues about the validity of prior rulings and how to proceed going forward, which the Federal Circuit has tried to narrow and navigate around. So now the Supreme Court is reviewing both whether the circuit was right about the problem (lack of proper appointment and confirmation of judges) and has identified appropriate responses to that problem. Specifically: “(1) Whether, for purposes of the Constitution’s appointments clause, administrative patent judges of the U.S. Patent and Trademark Office are principal officers who must be appointed by the president with the Senate’s advice and consent, or “inferior Officers” whose appointment Congress has permissibly vested in a department head; and (2) whether, if administrative patent judges are principal officers, the court of appeals properly cured any appointments clause defect in the current statutory scheme prospectively by severing the application of 5 U.S.C. § 7513(a) to those judges.”

Tuesday, March 2 — Voting Rights Act

A pair of cases (consolidated for 1 hour total, but expect it to run long) out of Arizona being argued today are among the most important of the term: Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee. The cases have received considerable public attention and SCOTUSBlog has a very useful overview as well as a symposium reflecting a range of perspectives. So I’ll add just a brief note to provide some context before following those links.

The Voting Rights Act, among other things, prohibits voting procedures that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees” of other VRA protections. 52 U.S.C. § 10301(a). And it further specifies this violation can be established if the “political processes” are not “equally open to participation by members of a class of citizens.” § 10301(b). These provisions are typically referred to as “Section 2.”

These cases involve Arizona’s “out of precinct” policy (if you show up to vote and aren’t on the list, you can cast a provisional ballot; but if it’s later found that you weren’t on the list because you went to the wrong precinct, then the whole ballot is thrown out) and anti-“ballot harvesting” policy (which prohibits collecting and returning someone else’s ballot unless you are the voter’s family member or caregiver, or a mail carrier or election official). The 9th Circuit found that both these policies violated the VRA because they had a disproportionate impact on minority voters and this effect was linked to social and historical conditions that created inequality of opportunity to participate in the election process.

Beyond the legality of these policies, advocates are hoping the Supreme Court will clarify the standards to be used in VRA § 2 cases. The ARP v. DNC case’s questions presented highlight this: “(1) Whether Section 2 of the Voting Rights Act compels states to authorize any voting practice that would be used disproportionately by racial minorities, even if existing voting procedures are race-neutral and offer all voters an equal opportunity to vote; and (2) whether the U.S. Court of Appeals for the 9th Circuit correctly held that Arizona’s ballot-harvesting prohibition was tainted by discriminatory intent even though the legislators were admittedly driven by partisan interests and by supposedly ‘unfounded’ concerns about voter fraud.”

Wednesday, March 3

The cases today (Carr v. Saul and Davis v. Saul, consolidated for 1 hour total) also involve the “appointments clause” that was at issue in the March 1 Patent Judges cases, but this time the argument is about a procedural issue that is preliminary to the constitutional question: “Whether a claimant seeking disability benefits under the Social Security Act forfeits an appointments-clause challenge to the appointment of an administrative law judge by failing to present that challenge during administrative proceedings.”

February & Early March Cases

February 13, 2020case suggestions

The next block of arguments will occur in the last week of February and first week of March—with a large number of very significant cases. It starts with an important case involving federal lands that has not received much attention, followed by other important cases including a really interesting one in the context of free speech related to illegal immigration and another questioning the whole “expedited removal” process, then the CFPB case, and finally ending on March 4 with one of the more high-profile cases of the term, involving access to abortion.

Monday, February 24

First is a case that has not received much public attention but represents an important contest over whether the Trump Administration can authorize commercial activity on federal land in apparent violation of enacted laws. The Federal Energy Regulatory Commission awarded a right-of-way to Atlantic Coast Pipeline LLC so it could construct a natural gas pipeline across the Appalachian Trail within the George Washington Forest, despite laws that specify that such rights-of-way may be granted on federal lands “except lands in the National Park System.” 30 U.S.C. § 185(b)(1). An environmental organization successfully sued to block this action, with the Fourth Circuit holding that the Appalachian Trail is a “unit” of the National Park System and therefore the Mineral Leasing Act “specifically excludes” the Trail “from the authority . . . to grant pipeline rights of way.” The Administration is arguing, among other things, that the Appalachian Trail is not “land” within the meaning of these laws, which one group of amici seized on: “Petitioners’ first response (USFS Br. 19; ACP Br. 18) to that straightforward reading of the relevant statutory texts is that the AT is not ‘land’ at all but is instead merely ‘a trail’ or ‘a footpath’ that metaphysically crosses land. That argument is too clever by half.” I recommend reviewing that brief from NRDC and other groups, which offers a useful overview of the arguments. [There are two cases, US Forest Service v. Cowpasture River Assn. and Atlantic Coast Pipeline, LLC v. Cowpasture River Assn., but they have been consolidated for a total of 1 hour of argument.]

The second case is a terrorism case that also has not received much attention, likely because it involves fairly technical issues of interpretation of the Foreign Sovereign Immunities Act. The suit is against Sudan and alleges that it sponsored Al-Qaeda and bears liability for deaths and injuries of US government employees and contractors in the 1998 embassy bombings in Kenya and Tanzania. Congress amended the FSIA in 2008 to allow for punitive damages in cases of state-sponsored terrorism; the question for the Court today is whether that amendment applies retroactively. Opati v. Republic of Sudan.

Tuesday, February 25

Today is an important First Amendment case in the context of illegal immigration. Federal law provides for imprisonment of anyone who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” 18 U.S.C. § 1324(a)(1)(A)(iv). Based on those words alone, the statute might be read to criminalize a wide range of political advocacy that would be Constitutionally protected, such as editorials describing immigration law as immoral and illegitimate bars on entry by people fleeing oppression. Although incitement and solicitation of illegal activity may be criminalized under longstanding First Amendment doctrines, “abstract advocacy” of illegal activity is free speech. The line is often difficult to describe and cases typically address the issue in theoretical terms. That’s the case in today’s US v. Sineneng-Smith. Evelyn Sineneng-Smith continued to file green card applications (and charge her clients) under a specific program even though that program had ended. She was convicted of both mail fraud (which is no longer being contested) and under this “encourage or induce” provision. Speech that is part of a criminal scheme is not protected, but in First Amendment cases, we often look to the language of the statute and courts will strike down the law if it is “overbroad” even if the specific defendant before them did something that the Constitution would allow the government to criminalize under a more carefully drafted statute. Prof. Eugene Volokh’s amicus brief offers a compelling examination of the importance of the questions in this case. There’s also an interesting NYT article about the case.

Wednesday, February 26

The only case today is a technical issue under the Prison Litigation Reform Act, involving how to count the number of “strikes” against a prisoner who has had prior lawsuits dismissed. It’s not one I would recommend to the casual observer. Lomax v. Ortiz-Marquez

Monday, March 2

Two important immigration cases today, both involving different aspects of the power of the courts over the immigration process. The first, Nasrallah v. Barr, involves a member of the Druze religion who had been granted asylum in 2006 on the basis of an incident in which Hezbollah fired weapons at him and forced him to jump off a cliff to escape. But in 2013 he was convicted of receiving stolen property, which triggered a removal process. An immigration judge deferred removal, finding that he likely would face persecution if returned to Lebanon, but the Board of Immigration Appeals found that he was not in fact in danger because the guns weren’t aimed at him and he “voluntarily jumped.” The 11th Circuit refused to examine that finding, holding that it lacked power to review factual findings by the BIA. The Supreme Court has granted cert. on “whether the courts of appeals possess jurisdiction to review factual findings underlying denials of withholding (and deferral) of removal relief.” See this interesting amicus brief from a group thirty-three former immigration judges and members of the BIA, which argues that “[i]n light of the immense resource constraints of immigration courts, which amici experienced firsthand, it is crucial to have Article III court review of the underlying basis for a grant or denial of a [Convention Against Torture] claim.”

The second case, DHS v. Thuraissigiam, reviews a 9th Circuit decision that called into question the entire “expedited removal” process, finding that it lacked the “meager procedural protections” that the Supreme Court had required even for enemy combatants in Guantanamo — and therefore the statute denying courts authority to hear habeas petitions was invalid under the Constitution’s “suspension clause.” The Circuit decision itself offers a useful overview of the law and the circumstances this immigrant faced; also see this ABA Journal article and the organization’s amicus brief.

Tuesday, March 3

The legitimacy of the Consumer Finance Protection Bureau is being challenged on the basis of separation-of-powers concerns in Seila Law v. CFPB. The Constitution vests the President with the authority and duty to “take care that the laws be faithfully executed,” and this has traditionally meant broad authority to remove the heads of administrative agencies. But Congress on occasion creates “independent agencies” (with varying levels of actual independence) that it wants insulated from the political process. That’s been challenged on occasion as inconsistent with the constitutional scheme, but the Court has upheld various restrictions Congress has put on Presidential power over those agencies. CFPB is at the end of the continuum, though: it is funded independently through the Federal Reserve system and has only one director who serves a 5-year term and cannot be removed except for “inefficiency, neglect of duty, or malfeasance in office.” The case raises the question of whether Congress may so restrict the President’s authority to remove an administrative officer, but the Court may not reach that issue. It could instead read the “for cause” clause so broadly as to negate any separation-of-powers concerns, or it could hold that the petitioner lacks standing to raise the issue (it’s a law firm that refused to comply with a subpoena when the CFBP was investigating its telemarketing practices for consumer debt-relief services, which is a bit removed from the Constitutional issues). Scotusblog offers a useful overview and a symposium with a range of views.
There’s a lot of politics surrounding this case. Elizabeth Warren had a very significant role in the creation of the CFPB. Trump’s Solicitor General has declined to defend the constitutionality of the CFPB, so the Court asked Paul Clement (the Solicitor General under George W. Bush) to step in (he’s defended the structure but urged the Court not to reach that issue). And Justice Kavanaugh dissented when the issue was raised in a similar case when he was still on the DC Circuit (PHH Corp. v CFPB was decided 7-3 in favor of CFPB by the full DC Circuit in 2018).

The second case is an important but fairly procedural securities law issue. “Disgorgement” is essentially an order to surrender the ill-gotten gains. A 2017 Supreme Court case (Kokesh v. SEC) held that disgorgement is a form of “penalty” that is subject to a statute of limitations, but it left open the question of whether disgorgement was available as an “equitable remedy” (the ancient common law power of courts to craft appropriate responses to findings of guilt) in SEC enforcement actions when the statute of limitation is not a bar. Liu v. SEC asks that question directly. There’s an interesting NYT article that provides and overview and some details of the enforcement action, and this amicus brief by securities law scholars should really help you to follow the arguments.

Wednesday, March 4

Abortion cases are some of the most contentious and heavily watched argument days, and that was before the most recent batch of state laws following the presidential election. The June Medical Services cases (one with Russo as the petitioner and the other with him as the respondent; earlier cases will list Gee, the prior Secretary of the Louisiana Department of Health) involve a Louisiana law that requires doctors who perform abortions to have admitting privileges in a hospital with 30 miles. If that sounds familiar, it’s because the Court struck down a very similar Texas law in 2016 in Whole Women’s Health v. Hellerstedt. There, the Court found an “undue burden” after looking at the obstacles the law created as balanced against the benefits of the law. It noted that the benefits were minimal: complications are very rare and most occur in the days following the procedure, after the woman had gone home. As to burden, in the Texas case the record showed that about half the state clinics had been forced to close. Louisiana is focused on the “burden” half of the equation, arguing that it won’t be as serious there because the state only has 3 clinics and 4 abortion doctors total, and one already has admitting privileges and the others should be able to satisfy the new requirement. Again Scotusblog offers a symposium collecting a range of views.
This case will draw a huge crowd. Lines to get into the courtroom will form the day before (with some probably arriving days before), but one former student got in (barely!) for the LGBT/Title VII case in January by joining the line in the early afternoon the day before. So obviously no guarantee, but I’d say that if you’re willing to spend 24 hours in line, you’ve got a chance. If you’re not, then it can be a great experience to go to take in the demonstrations outside the Court. Protests will start during commuter hours the morning of the arguments and continue until the arguing counsel leave the court and give interviews and speeches out front. During and immediately after arguments are typically when the crowds outside are biggest and most active. The two cases are consolidated for one hour of argument, but they are the only arguments scheduled for today so I would expect them to run a little long. With bar admissions and decision announcements starting at 10:00, I would expect arguing counsel to be leaving the Courthouse around 11:30.

October 2017

August 10, 2017case suggestions

The new Supreme Court term begins with some very significant cases, including Trump’s Muslim travel ban and a profoundly important case involving partisan gerrymandering. I highlight some significant October cases below, and will add cases to be argued in future months as those schedules become available. (The Court does not schedule oral argument when it grants cert., but rather waits until written briefing is complete.)

One of the cases receiving a lot of national attention, Masterpiece Cakeshop (involving discrimination, in violation of state law, by refusing to prepare a cake for a same-sex marriage), is not likely to be heard until 2018. The Cakeshop’s brief is due on August 31, with the Colorado Civil Rights Commission’s brief coming October 23, followed finally by the company’s reply brief on November 22. So I would expect oral arguments in January or February, although it could be as early as December.

“First Monday,” October 2

The 2017 term opens with the issue of mandatory arbitration clauses. The Court has taken on a number of arbitration disputes in recent years, typically finding that the Federal Arbitration Act requires state courts to enforce these provisions against a variety of legal challenges. In these three consolidated cases (one hour total, for NLRB v. Murphy Oil, Ernst & Young v. Morris, and Epic Systems v. Lewis), the issue is whether arbitration clauses are enforceable when they infringe on rights protected under the National Labor Relations Act. Most of the briefing in these cases was completed before the 2017 Presidential Election, so there is an odd set of conflicting positions in briefs filed by the NLRB initially and by the Solicitor General after Trump took office.

The Court will also re-hear argument in the first of two immigration law cases it heard last year but did not decide, presumably because it was split 4-4. This one, Sessions v. Dimaya, involves the vagueness of the terms “aggravated felony” and “crime of violence.” Dimaya was ordered removed from the US on the basis of two burglaries of unoccupied homes–no violence was involved, but it’s the kind of crime that can involve violence.

Tuesday, October 3

The first case today takes on the important but vexing issue of partisan gerrymandering, and deserves to be one of the most-watched cases of the term. In Gill v. Whitford, there does not seem to be any dispute that the Wisconsin legislature engaged in “packing” and “cracking” to concentrate Democratic votes in as few districts as possible and ensure they were small minorities in all other districts. The issue is whether this is the sort of political practice that is unconstitutional, and whether the courts can craft a set of criteria that allow for legal challenge without exceeding the judiciary’s role. A good summary is here, with a set of thoughtful positions collected here.

The second case today is the second of the two immigration law cases it heard last year but did not decide, presumably because it was split 4-4. This one, Jennings v. Rodriguez, involves a detained immigrant’s right to post bond for pre-hearing release.

Wednesday, October 4

This is a criminal law day, with both cases coming out of Washington, DC. The first involves probable cause and qualified immunity. Under DC law, the crime of unlawful entry (trespassing) requires that the person knew or should have known that the entry is unlawful. In DC v Wesby, MPD officers responded to complaints about a loud party and arrested the partiers for unlawful entry even though they said they had permission from a person who was leasing the house. Police spoke with that person, who confirmed, but then called the owner, who said the lease had not begun yet. Lower courts held that there was not probable cause to believe that the partiers knew they did not have the owner’s permission. They also held that the police should have known that an arrest under these circumstances would violate the 4th Amendment, so were not entitled to qualified immunity. The Court has accepted review of both questions.

The second case, Class v. US, is a criminal procedure case in the context of gun laws. Mr. Class brought three guns from his home in North Carolina to Washington, DC, leaving the guns inside his car when he went to tour the US Capitol. He says he did not realize the parking lot was on Capitol grounds, where firearms are prohibited. A Capitol Police officer noticed something suspicious in the car, and Class was arrested upon returning to the car. He raised various Second Amendment and due process claims, but ultimately pled guilty after the trial court rejected those constitutional claims. He then appealed, but the appellate court held the guilty plea waived his right to appeal. The Court has granted cert on the question “Does a guilty plea inherently waive a defendant’s right to challenge the constitutionality of his conviction?” This case also had briefs filed by both the Obama and Trump administrations, although both sided against Mr. Class (first arguing that the Court should not grant review, and then arguing that it should reject his arguments).

(the Court does not hear cases on Monday, which is Columbus Day)

Tuesday, October 10

This will be one of the most highly watched arguments of the year–the “Muslim travel ban” cases, Trump v. International Refugee Assistance Project and Trump v. Hawaii. I don’t have anything to add to the extensive commentary on these cases…. Scotusblog has a useful introduction and then a series of thoughtful articles from a variety of perspectives. It is also worth reviewing a few of the amici briefs that have been filed in this case (especially those by the “Former National Security Officials” and the “Constitutional Law Scholars”).

The other case this morning, Hamer v. Neighborhood Housing Services, is a technical issue of appellate procedure.

Wednesday, October 11

The first case scheduled for this morning involves court jurisdiction for Clean Water Act cases, under the “Obama Water Rule.” I say scheduled because Trump has said he will rescind the rule, so the case may become moot and get removed from the docket.

The second case involves corporate liability under the Alien Tort Claims Act. The ATCA has received a lot of attention from the Supreme Court in recent years, after almost no attention for centuries (it was enacted by the first Congress, in 1789). Jesner v. Arab Bank is brought by victims of attacks in the West Bank and Gaza now living in the US, who claim that US branches of the bank were involved in laundering funds for Hamas. The Court has accept cert. on the question of whether corporations can be sued under the ATCA. Scotusblog has some good background.

February cases

February 19, 2017case suggestions

This month, the Court will consider a wrongful death claim involving a cross-border shooting by a Border Patrol agent, arbitration agreements in the context of alleged wrongful death of nursing home residents, and sex offender laws in immigration and free speech contexts.

Tuesday, Feb 21

A tragic case made more politically interesting in the context of current US-Mexico tensions is up first today, in Hernández v. Mesa. A 15 year-old boy was shot and killed by a US Border Patrol agent. The agent fired from US territory, but the boy was in Mexico. That much is undisputed; the parents say he was playing a game that involved touching the fence and running back, while the agent says this was part of an illegal border crossing that involved a group throwing rocks at agents. But the Court will decide only whether this dispute can get as far as trial: does the 4th Amendment apply to use of force under these circumstances, and can the parents bring a suit like this? A through description of all the legal issues is available here.

McLane Co v. EEOC is a more procedural issue without much suspense. Federal courts enforce or quash (cancel) subpoenas issued by federal agencies like the EEOC. All but one Circuit court decides based on whether the EEOC abused its discretion (which is deferential toward the agency), but the 9th does so based on de novo review (its own original determination, with no deference to the agency). Interesting arguments on both sides are described here.

Wednesday, Feb 22

The Court hears only one case today, involving arbitration agreements, which have been the subject of much controversy recently. Historically, the Court has held that the Federal Arbitration Act serves as a very serious obstacle to any state laws that would restrict the enforceability of arbitration agreements. Kindred Nursing Centers v. Clark involves deceased residents of a nursing home whose “principals” (individuals who held their power of attorney) sued the home for for wrongful death, personal injury, and violations of certain Kentucky laws protecting nursing home residents. The home sought to dismiss the cases based on the mandatory arbitration agreement those principles had signed on behalf of the residents, but the Kentucky Supreme Court held that they lacked authority to enter the arbitration agreement because the right to a jury trial and to appeal to higher courts are fundamental constitutional rights that cannot be waived absent express authority to do so. A thorough discussion of the case is available here.

Monday, February 27

The Court takes on sex offender laws in two cases today, in immigration and free speech contexts.

The question in Esquivel-Quintana v. Sessions is: Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act – and therefore constitutes grounds for mandatory removal.

In Packingham v. North Carolina, the issue is: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state’s registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”