no-fly – Prof. Zachary Wolfe, Esq.

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of any change or postponement in the time and place”; and a separate section provides that the order of removal can be rescinded if “the alien did not receive notice in accordance with paragraph (1) or (2).”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).

The Supreme Court term traditionally begins on the “First Monday” of October, and the Court has announced (earlier than usual) a full schedule for that month. (“Full schedule” means Monday through Wednesday for two weeks out of the month.) Exactly what that will look like, of course, is still unknown. The Court held unprecedented telephone arguments last May, but the virus will decide if we can return to in-person arguments and the Court will decide what adjustments to make if not.

I will make a post about how to watch or listen when we know how the arguments will be conducted. Meanwhile, some highlights of cases below, including a First Amendment case involving political affiliations of judges, a RFRA challenge to the no-fly list, intellectual property, rape under the UCMJ, and other issues. Each of these cases had been scheduled for argument last year but were held over when arguments were canceled due to the pandemic.

First Monday, October 5

The session opens with an unusual First Amendment case, Carney v. Adams, involving a Delaware law concerning political affiliation of judges. “Whether the First Amendment invalidates a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a ‘bare majority’ on the state’s three highest courts, with the other seats reserved for judges affiliated with the ‘other major political party.’” The Brennan Center is heavily involved and has an amicus brief that should provide a good foundation for understanding the facts and legal issues in this case.

The second argument today, in Texas v. New Mexico, involves a highly technical water issue: “Whether the River Master correctly allocated evaporation losses under the Pecos River Compact.” This will be hard to follow and not have much public interest. However, it does have the allure of being the extremely rare case that begins in the Supreme Court under its original jurisdiction — and this case has been on the Court’s docket, with various disputes, since 1960. If that’s enough to grab your attention, take a look at this article to get a sense of the current issues and then peruse the extensive docket just to see how actively this dispute has been litigated over the years.

Tuesday, October 6

The first case today is not one I would recommend for a casual observer. Although the context is important (pharmaceutical drug reimbursement rates), the Court will consider quite technical issues of federal preemption under the Employee Retirement Income Security Act (ERISA). Rutledge v. Pharmaceutical Care Management Association.

The second case, however, is a politically important and legally interesting case: a challenge to the “no fly list” brought in part under the Religious Freedom Restoration Act. Tanzin v. Tanvir. RFRA has been embraced by conservative advocates and jurists in “culture wars” contexts, so its invocation by Muslims in a national security context should, at the very least, make for interesting arguments. Oyez offers a useful overview:

The plaintiffs, Muslim men born outside of the U.S. but living lawfully inside the country, allege that the Federal Bureau of Investigation (FBI) placed their names on the national “No Fly List,” despite posing no threat to aviation, in retaliation for their refusal to become FBI informants reporting on fellow Muslims. They sued the agents in their official and individual capacities in U.S. federal court under the First Amendment, the Fifth Amendment, the Administrative Procedure Act, and the RFRA. They claim that the listing of their names substantially burdened their exercise of religion, in violation of the Religious Freedom Restoration Act (“RFRA”), because their refusal was compelled by Muslim tenets.

Wednesday, October 7

Google LLC v. Oracle America Inc. is an extremely important intellectual property case. A great deal of software relies on existing Application Programming Interfaces (APIs), which had been assumed to be open-source because the statue states that copyright protection does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.” But the Federal Circuit held that APIs are copyrightable and that Google’s use of Java APIs were not fair use. See the amicus brief from the Electronic Frontier Foundation.

Next up is a pair of cases, Ford Motor Company v. Bandemer and Ford v. Montana Eighth Judicial Court, that involve technical civil procedure issues but are extremely important for product liability litigation. When people allege they were harmed by products that are marketed and sold nationwide, plaintiffs’ lawyers have to decide where to file the lawsuit, and where a violation occurred is not always the jurisdiction with courts that are most friendly to such plaintiffs. Last year, the Supreme Court in Bristol-Myers Squibb Co. v. Superior Court of San Francisco County put severe limits on “forum shopping” by clarifying the standards of “personal jurisdiction” (the requirement that there be significant connection between the defendant and the jurisdiction of the court where the lawsuit is filed), but some courts have continued to find personal jurisdiction in product liability cases even where the alleged injuries or misconduct did not occur in that state. There’s a useful overview of the legal issues here.

[The Court observes Columbus Day on Monday, October 12]

Tuesday, October 13

First up is argument in two consolidated cases (US v. Briggs and US v. Collins) involving the statute of limitations for rape under the Uniform Code of Military Justice. There’s an interesting amicus brief from a bipartisan group of Members of Congress that provides a useful history of the UCMJ and prior precedents.

The second case today is not one I would recommend to the casual observer. Chicago v. Fulton involves a technical bankruptcy issue.

Wednesday, October 14

Torres v. Madrid, addresses an important and unresolved legal issue related to what constitutes a seizure under the Fourth Amendment. It is unresolved in that lower courts have come to different conclusions where an officer used force to detain a suspect but was unsuccessful; this is known as a “circuit split” and is one thing that makes it very likely the Court will agree to hear a case. The official “question presented” makes this clear: “Whether an unsuccessful attempt to detain a suspect by use of physical force is a ‘seizure’ within the meaning of the Fourth Amendment, as the U.S. Courts of Appeals for the 8th, 9th and 11th Circuits and the New Mexico Supreme Court hold, or whether physical force must be successful in detaining a suspect to constitute a ‘seizure,’ as the U.S. Court of Appeals for the 10th Circuit and the District of Columbia Court of Appeals hold.” See the brief from the NAACP LDEF.

The last October argument is in Pereida v. Barr, an immigration law case. Federal immigration law permits non-citizens to challenge their deportation on certain bases, but not if the individual has been convicted of a “crime involving moral turpitude” (CIMT) under state or federal law. But state statutes are often complex and plea agreements are not always clear, so it is not always obvious whether a CIMT is involved. In this case, Pereida was charged with attempting to use a false Social Security Number and pled no-contest to violating a statute, some but not all subsections of which could be read to constitute a CIMT. The issue is “Whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.” See this interesting brief from a group of former immigration judges.

Tag: no-fly

January 2024 Cases