Trump – 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.

The Court convenes February 8 for an extraordinary Thursday session to hear arguments in Trump v. Anderson, in the specific issue of Donald Trump’s eligibility to be on the Colorado ballot for Republican candidate for the Presidency of the United States, with obvious nationwide implications concerning Section 3 of the Fourteenth Amendment. I normally save my independent analysis for cases that have not already received such vast public attention, but this time I want to highlight some legal issues and lines of argument that may have been drowned out in the political talk and even some of the more law-oriented coverage. (Although I’ll still mostly recommend reading those who have really done the hard work!)

I read the Trump petition and found the vast majority of the claims to be without merit. As Akhil Amar put it in previewing the analyses he fully develops later in his amicus brief:

Of course the president is an “officer” covered by Section Three. Of course a detailed congressional statute is not necessary to implement Section Three. Of course an ineligible person is ineligible unless and until amnestied. Of course a person can engage in an insurrection with words as well as deeds. Of course an insurrection can begin locally.
– Amicus Curiae Brief of Akhil Reed Amar and Vikram David Amar in Support of Neither Party

I’ll add that I’ve found the focus on a precise definition of engaging in insurrection frustrating given that the Amendment also imposes ineligibility on those who have “given aid or comfort to the enemies” of the Constitutional order.

I recommend beginning with that Amar brief, which itself begins by discussing how a pre-Civil War insurrection that parallels January 6 was on the minds of the Radical Republican drafters and makes clear that such actions were meant to be disqualifying after the Reconstruction Amendments. Those and other analyses are buttressed by another group of law scholars. And I strongly recommend a really compelling brief on the history and original intent of the 14th Amendment written by a group of historians (all of whom “are elected members of the American Academy of Arts and Sciences and winners of either the Pulitzer or the Bancroft Prize or both,” and two of whom gave an NPR interview on this).

The more difficult question is whether Trump’s current ineligibility to hold office means that he is also ineligible to run for office. The Amendment uses the word “hold” and provides that Congress may vote to remove that ineligibility; presumably that vote could come even after an election. So at first blush, this appears to be Trump’s strongest argument. But as the top quote signals, Amar handily dispatches that argument, too.

Among the many good arguments on this is an important federalism overlay that I think is often missed — and it’s intriguing to see states’ rights lining up the way it does in this case. It is perfectly reasonable for Colorado to limit ballot access to persons who are eligible for that office. And moreover, our federalist system holds that it is the role of the Colorado courts “to say what the [Colorado] law is.” The Brennan Center for Justice (out of NYU Law) has a thoughtful amicus brief on this, explaining that for the US Supreme Court to override Colorado’s interpretation of that state’s election laws would be a variation on the absurdist “independent state legislature theory” that the Court soundly rejected just last summer.

Finally, do not miss the NAACP LDEF brief. It is a powerful call (grounded in strong legal analysis, as always) to preserve the Reconstruction Amendments, warning the Court not to repeat its past shameful errors of issuing decisions (notoriously but not limited to Plessy v. Fergusson) that undermined the meaning and practical enforceability of those provisions that were designed and remain necessary to preserve democracy.

Getting the most out of the arguments

Read up. Above are many more links than I usually share, but I strongly recommend at least reviewing the table of contents and introductory section of each, and reading the full arguments that interest you most. Even more than most cases these days, this case will be seen in a politicized context but understanding the fully developed legal arguments will allow you to engage with (and possibly critique) the arguments from a less-entrenched perspective.

Argument begins at 10:00 and all arguments are open to the public. Expect arguments to run until at least noon and possibly 1:00 (particularly if the Court grants a recent request for divided argument and additional time). Edit: the Court granted that motion in part. 80 minutes total time but 3 arguing counsel. When the allotted time expires, each Justice gets one more round of questioning for that lawyer (which often adds 15-30 minutes each round, times 3 lawyers).

Attend in person if you can. Lines to get into the Court have been quite reasonable so far this term, with people arriving around 6am and still getting in for somewhat high-profile cases — but surely a Trump case will be different. I’ve been guessing 3am for cases with a lot of public interest and I would try to get there as early as possible for this one. More details here.

Listen live online if in-person is impractical. The front page of supremecourt.gov has a link or see the audio page. You might also see if scotusblog is live-blogging.

Swing by if you can. If you’re in DC but a very early and full morning at the Court isn’t an option, it is worth coming by the Court to take in the atmosphere. When the session concludes, arguing counsel will come out and hold press conferences on the sidewalk in front of the plaza. There will likely be demonstrators all morning.

Or take it in when you can. Recordings, transcripts, and transcript-synchronized recordings will be available later.

Tag: Trump

Final arguments of the term – April 22-25.