The 10th Amendment, anti-commandeering and sports betting: In Plain English

The 10th Amendment, anti-commandeering and sports betting: In Plain EnglishMost Americans are familiar with some parts of the Bill of Rights, such as the First Amendment’s guarantee of free speech and the Second Amendment’s protection of the right to bear arms. Other provisions, however, are less well known – for example, the 10th Amendment, which provides that the “powers not delegated to the United […]

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The 10th Amendment, anti-commandeering and sports betting: In Plain English

Most Americans are familiar with some parts of the Bill of Rights, such as the First Amendment’s guarantee of free speech and the Second Amendment’s protection of the right to bear arms. Other provisions, however, are less well known – for example, the 10th Amendment, which provides that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” But the 10th Amendment is at the heart of an important Supreme Court case this fall, in which New Jersey and a group of horse-owners will argue that a federal law that bars virtually all states from legalizing sports betting violates the Constitution.

The federal law is the Professional and Amateur Sports Protection Act (known as PASPA), which Congress passed in 1992. PASPA makes it illegal for states to “authorize” “a lottery, sweepstakes, or other betting, gambling, or wagering scheme based” “on one or more competitive games in which amateur or professional athletes participate.” PASPA grandfathered in four states – Delaware, Montana, Nevada and Oregon – that already had sports gambling, and it also carved out an exception for New Jersey that would have allowed sports betting at the state’s casinos, as long as the state set up the scheme within one year after PASPA went into effect.

New Jersey didn’t take advantage of that exception at the time, but nearly two decades later the state appeared to have second thoughts. In 2010, the New Jersey legislature held hearings to consider the possibility of sports betting, which would benefit the state’s struggling racetracks and casinos. In 2011, New Jersey residents overwhelmingly voted to amend the state’s constitution to give the legislature the power to legalize sports betting, which the legislature did in 2012. The National Collegiate Athletic Association and the four major professional sports leagues – the National Basketball Association, the National Football League, the National Hockey League and Major League Baseball – quickly went to federal court to challenge the 2012 law, arguing that it violated PASPA.

The state did not dispute that the 2012 law conflicted with PASPA. Instead, it countered that PASPA violates the 10th Amendment, which the Supreme Court has interpreted to prohibit the federal government from “commandeering” the states to enforce federal law. But the lower courts rejected that argument, with the U.S. Court of Appeals for the 3rd Circuit ruling that the “anti-commandeering doctrine” did not apply because PASPA does not require the states to do anything; it simply bars them from allowing sports betting. The Supreme Court denied review of that decision.

In 2014, the New Jersey legislature returned to the drawing board. It passed a new law that did not affirmatively legalize sports betting, but instead repealed existing prohibitions on sports betting, at least as they applied to New Jersey casinos and racetracks. The NCAA and professional sports leagues again went to federal court, where the lower courts once again ruled for the leagues. This time, the full 3rd Circuit ruled that, even though New Jersey had “artfully couched” the 2014 law as simply a “repealer,” the statute nonetheless authorized sports betting at casinos and racetracks in the state. This time the Supreme Court agreed to weigh in, granting two petitions for review by New Jersey Governor Chris Christie and the New Jersey Thoroughbred Horsemen’s Association, a group of horse-owners and trainers that also owns a racetrack in New Jersey, which the group believes can only be saved from financial ruin by money from sports betting.

In the Supreme Court, Christie and the NJTHA portray PASPA as an attempt to to take over the legislature’s job that is “dramatic, unprecedented, and in direct conflict with this Court’s Tenth Amendment jurisprudence barring Congress from controlling how the States regulate private parties.” Unlike the 2012 law, they emphasize, the 2014 law does not affirmatively authorize sports betting, but instead just repeals the existing bars on sports betting at casinos and racetracks, without giving the state any role to play in the sports betting that will follow. Indeed, they point out, during the litigation challenging the 2012 law, the federal government itself told the 3rd Circuit that New Jersey was “free to repeal those prohibitions in whole or in part.” And if the 10th Amendment bars the federal government from requiring states to regulate, they contend, it must also be true that the federal government cannot require states to keep on their books laws that they have opted to repeal – which amounts to essentially the same thing as mandatory regulation.

Christie and the NJTHA also warn the justices of dire consequences if the leagues prevail. Looking beyond sports betting, they caution that if the 3rd Circuit’s interpretation of “authorization by law” as also barring repeals is allowed to stand, “it is not difficult to imagine other examples in which Congress could dictate policy outcomes in States without ever having to legislate directly. Rather than enact gun control measures of its own, for example, Congress could prohibit States from relaxing existing restrictions on the purchase of firearms by particular persons.”

The NCAA and the leagues push back, praising the 3rd Circuit’s ruling as a “commonsense conclusion.” The Supreme Court’s cases, they stress, make clear that the anti-commandeering doctrine only comes into play when Congress expressly creates obligations that “force states to do Congress’ bidding.” But PASPA, they suggest, does nothing of the sort: “It does not compel states (or state officials) to do anything,” but instead simply bars the states from authorizing sports betting. In that sense, they argue, PASPA isn’t any different from “scores” of other federal laws that regulate the states by specifically barring them from passing laws that “conflict with federal policy.” And in this particular case, the leagues observe, there is direct evidence that Congress would have viewed the state’s current efforts to allow sports betting at casinos as a PASPA violation: PASPA specifically gave the state “an exemption for a one-year window, and only a one-year window, to adopt such a law.”

The leagues also reject New Jersey’s argument that the 2014 law only repeals some prohibitions on sports betting, rather than authorizing it, as “mere semantics.” Even if New Jersey calls the 2014 law a “partial repeal,” the leagues say, it is still an authorization. To be sure, the leagues concede, PASPA does not necessarily prohibit “any and all state efforts to repeal or alter existing sports gambling prohibitions.” But it does require courts to look at “the substance of state laws, not just at labels.” And here, the leagues conclude, the 3rd Circuit was correct that, “whatever else PASPA may prohibit or permit, it does not allow a state to use wordplay to channel sports gambling to its favored venues for state-authorized gambling while prohibiting it everywhere else.”

The justices often grant review to resolve differences in opinion among the federal courts of appeals. However (as the leagues emphasized in urging the court to stay out of the dispute), there is no such division in this case, and – when asked by the Supreme Court to weigh in – the federal government (whose opinions the justices take seriously) recommended that review be denied. The fact that the Supreme Court nonetheless agreed to take on the case suggests that at least several justices regard the 10th Amendment issue as an important one; we’ll know more about how they are likely to rule when they hear oral argument this fall.

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The justices tackle partisan gerrymandering again: In Plain English

The justices tackle partisan gerrymandering again: In Plain EnglishJustice Ruth Bader Ginsburg has suggested that it might be the most important case of the upcoming term. On October 3, the Supreme Court will hear oral argument in Gill v. Whitford, a challenge to the redistricting plan passed by Wisconsin’s Republican-controlled legislature in 2011. A federal court struck down the plan last year, concluding […]

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The justices tackle partisan gerrymandering again: In Plain English

Justice Ruth Bader Ginsburg has suggested that it might be the most important case of the upcoming term. On October 3, the Supreme Court will hear oral argument in Gill v. Whitford, a challenge to the redistricting plan passed by Wisconsin’s Republican-controlled legislature in 2011. A federal court struck down the plan last year, concluding that it violated the Constitution because it was the product of partisan gerrymandering – that is, the practice of purposely drawing district lines to favor one party and put another at a disadvantage. The challengers argue that the redistricting plan would allow Republicans to cement control of the state’s legislature for years to come, even if popular support for the party wanes; the lower court’s decision, they contend, merely corrected “a serious democratic malfunction that would otherwise have gone unremedied.” By contrast, the state of Wisconsin counters that if the lower court’s decision is allowed to stand, it will open the door to “unprecedented intervention in the American political process.”

The Wisconsin case is not the Supreme Court’s first foray into partisan gerrymandering. When the Supreme Court tackled the issue 13 years ago, in a challenge to Pennsylvania’s redistricting plan, the justices were deeply divided. Four justices – Justice Antonin Scalia, joined by then-Chief Justice William Rehnquist and Justices Sandra Day O’Connor and Clarence Thomas – agreed in Vieth v. Jubelirer that courts should never review partisan-gerrymandering claims, because it is too hard to come up with a manageable test to determine when politics plays too influential a role in redistricting. Four other justices – Justices John Paul Stevens, Ruth Bader Ginsburg, David Souter and Stephen Breyer – disagreed; they would have allowed courts to review partisan-gerrymandering claims. The key vote in the case came (as it so often does) from Justice Anthony Kennedy, who agreed that the Supreme Court should stay out of the Pennsylvania case but left open the door for courts to have a role in reviewing partisan-gerrymandering cases in the future if a workable standard could be found.

Over several decades, federal courts – rather than the Wisconsin legislature – drew the state’s redistricting maps, after politicians could not agree on a plan. But in 2010, Republicans won control of both houses of the state legislature and the governor’s office, which led to the legislature, instead of the courts, redrawing the maps after the 2010 census. Republicans fared well in the two elections that followed: In 2012, they won 48.6% of the statewide vote, giving them 60 seats in the state’s 99-seat assembly, while in 2014 they won 52% of the vote, giving them 63 seats. By contrast, in 2012, Democrats won 51.4% of the vote but secured 39 seats, while in 2014 they won approximately 48% of the vote, which gave them 36 seats.

A group of challengers, led by retired law professor William Whitford, went to court to oppose the new redistricting plan as an unconstitutional partisan gerrymander. They argued that the legislature had created a plan that was intended to dilute Democratic votes across the state, using two methods: “cracking,” which divides up supporters of one party among different districts so that they do not form a majority in any of them; and “packing,” which puts large numbers of a party’s supporters in relatively few districts, where they win by large margins.

A divided three-judge district court (which, under federal law, is the designated forum for redistricting challenges) agreed with the challengers. The court acknowledged that politics can play a role in redistricting, and that there is no violation of the Constitution simply because one party’s share of the seats in a legislature exceeds its share of the statewide vote. But, the court continued, even if it can sometimes be difficult to tell when politics plays too influential a role in redistricting, this case is “far more straightforward.” The record in the case, the court concluded, showed that the state legislature intended to, and did, draft a redistricting plan to lock in Republican control of the state legislature, even though it could have drafted a different plan that would have accomplished other valid redistricting goals “while generating a substantially smaller partisan advantage.”

Urging the justices to reverse the district court’s ruling, the state of Wisconsin emphasizes that partisan gerrymandering is both a longstanding and common practice. Moreover, it continues, the 2010 map does not violate the Constitution because politics was only one of several factors that the legislature considered in drafting a map that “complies with traditional redistricting principles.” It goes on to point out that the 2010 map is not significantly different from the map drawn by a federal court in 2002, under which Republicans won 53.5% of the statewide vote, giving them 60 seats in the assembly.

The state also argues that the challengers lack a legal right – known as “standing” – to challenge the whole 2010 map. For example, they point out, lead plaintiff William Whitford lives in a district that Democrats have historically won by wide margins. Whitford’s injury, therefore, is not that his own vote is diluted, but that the 2010 map makes it harder for him to “engage in campaign activity to achieve a majority” in the assembly. But that is not the kind of specific and personal injury that Whitford would need to file a lawsuit, the state stresses. Instead, the state contends, it is “a subjective preference that any person could assert, so long as that person is interested in the election of more Wisconsin Democrats.”

Allowing claims by plaintiffs like Whitford to go forward would also create an “unthinkable and perverse loophole,” the state tells the justices, by permitting statewide partisan-gerrymandering challenges even though the Supreme Court has ruled that plaintiffs in racial-gerrymandering cases can only challenge their own districts, rather than statewide maps. Given the close correlation between race and party affiliation, the state suggests, allowing statewide challenges based on partisan gerrymandering would almost certainly prompt plaintiffs to bring their racial-gerrymandering cases as partisan challenges.

Finally, the state observes that one of the most important tests for whether something is a “political question” – that is, an issue best left to the elected branches of the government, rather than the courts – is whether there are standards that courts can easily identify and apply to resolve the dispute. That is certainly not the case for partisan gerrymandering, the state contends, as the “last three decades of fruitless litigation” have shown. But in any event, the state tells the court, the challengers cannot win because their proposed rule is not “limited and precise,” but in fact is the “opposite,” because it relies on a mix of social-science techniques that would “sow chaos”: Each plan drawn by a state legislature “would be immediately challenged in federal court. A trial would follow, where each side would present dueling ‘social science’ expert(s), and then the district court would need to pick a winner. There would be no way for any legislature to know, ex ante, what metric would guide the inevitable future trial.”

The challengers seemingly agree with the state that a key question in the dispute now before the Supreme Court is whether there is an identifiable and manageable test for partisan gerrymandering. But the answer to that question, they counter, is yes. Each of the three parts of the test that the lower court applied to reach its conclusion that the 2010 map violates the Constitution, they argue, is both squarely grounded in the Supreme Court’s cases and “highly workable.”

First, they note, the district court looked at whether the 2010 map reflects an intent by Republicans to discriminate against Democrats. Pointing to the court’s earlier partisan-gerrymandering cases that specifically refer to the map drafters’ intent, they argue that the Supreme Court itself has indicated that the intent inquiry is a manageable one that can be applied consistently.

Turning to the district court’s conclusion that the 2010 map also had a discriminatory effect, the challengers assert that several justices specifically envisioned an inquiry into whether a redistricting plan had a discriminatory effect in League of United Latin American Citizens v. Perry, a 2006 case in which the court rejected the claim that Texas’ 2003 congressional redistricting was an unconstitutional partisan gerrymander. The challengers emphasize that they are not asking the Supreme Court to endorse a specific social-science technique to measure a plan’s discriminatory effect. Rather, they stress, they are simply asking the court to do what it has done in other redistricting cases involving allegations of discriminatory effect: announce a standard “whose precise contours are filled in through subsequent litigation.”

The third prong in the district court’s test – whether there is a “legitimate justification” for the map – is, the challengers contend, “drawn directly” from the Supreme Court’s cases involving the “one-person, one-vote” doctrine – the principle that legislative districts should contain roughly equal populations. Experience demonstrates that this prong is workable, the challengers add, because it has been used in “one-person, one-vote” cases for 50 years; the “legitimate justification” test has also been suggested by “several” justices in the court’s partisan-gerrymandering cases.

The challengers also push back against two other arguments advanced by the state, beginning with the idea that, like racial-gerrymandering cases, partisan-gerrymandering claims cannot challenge an entire statewide map. In his concurring opinion in Vieth, the challengers stress, Kennedy clearly “contemplated partisan gerrymandering claims proceeding on a statewide basis.” And four years later in LULAC, they note, the plaintiffs “challenged Texas’s congressional plan in its entirety,” but “not a single Justice hinted that the suit was foreclosed for this reason.” The state’s suggestion that the 2010 map passes constitutional muster because it complies with “traditional” redistricting principles is also both unfounded and still in dispute, the challengers contend: The 2010 map not only “splits more counties than any other map in Wisconsin’s history and was found to violate” the Voting Rights Act, but the districts that it outlines “are also less compact, on average, than those of any other Wisconsin map for which data is available.”

Only four of the current justices – Justices Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg and Stephen Breyer – were on the court in 2004, when the justices declined to act in Vieth. And three of the current justices – Justices Sonia Sotomayor, Elena Kagan and Neil Gorsuch – had not yet joined the court when it decided LULAC in 2006. But we may be able to discern at least a hint of those three justices’ views on this case from an order that the court issued on June 19, the same day that it announced that it would review the case: The justices granted the state’s request to block an order by the lower court that would have required the state legislature to create a new redistricting plan by the fall. The state had argued that it should not have to spend time and money creating a new map until the Supreme Court can rule on the validity of the old plan; at a minimum, the state claimed, the court’s eventual opinion will provide “significant guidance” for the state to use in drafting a new redistricting plan. Ginsburg, Breyer, Sotomayor and Kagan indicated that they would have denied the state’s request, but the state’s ability to muster the five votes that it needed to put the lower court’s order on hold may bode poorly for the challengers, because one factor that the justices had to consider in making their decision was whether the state is likely to succeed on the merits of its claim. We will know more after the justices hear oral argument in early October.

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The justices return to cellphones and the Fourth Amendment: In Plain English

The justices return to cellphones and the Fourth Amendment: In Plain EnglishIn 1976, in United States v. Miller, the Supreme Court ruled that the bank records of a man accused of running an illegal whiskey-distilling operation were not obtained in violation of the Fourth Amendment, even though law-enforcement officials did not have a warrant, because the bank records contained “only information voluntarily conveyed to the banks […]

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The justices return to cellphones and the Fourth Amendment: In Plain English

In 1976, in United States v. Miller, the Supreme Court ruled that the bank records of a man accused of running an illegal whiskey-distilling operation were not obtained in violation of the Fourth Amendment, even though law-enforcement officials did not have a warrant, because the bank records contained “only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.” Three years later, in Smith v. Maryland, the justices ruled that no Fourth Amendment violation had occurred when, without a warrant and at the request of the police, the phone company installed a device to record all of the phone numbers that a robbery suspect called from his home, leading to his arrest.

These cases are often cited as examples of the “third-party doctrine” – the idea that the Fourth Amendment does not protect records or information that someone voluntarily shares with someone or something else. But does the third-party doctrine apply the same way to cellphones, which only became commercially available a few years after the court’s decisions in Miller and Smith? Justice Sonia Sotomayor, at least, has suggested that it should not: In 2012, she argued that the doctrine is “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” That question is at the heart of Carpenter v. United States, in which the justices will hear oral argument this fall.

The petitioner in the case, Timothy Carpenter, was accused of being the mastermind behind a series of armed robberies in Ohio and Michigan. Law-enforcement officials asked cellphone providers for the phone records for 16 phone numbers, including Carpenter’s, that had been given to them by one of Carpenter’s partners in crime. They relied on the Stored Communications Act, a 1986 law that allows phone companies to disclose records when the government provides them with “specific and articulable facts showing that there are reasonable grounds to believe” that records at issue “are relevant and material to an ongoing criminal investigation”; the government does not need to show that there is probable cause to believe that a crime has been committed. Such requests have become a common tool for police officers investigating crimes – according to Carpenter, they are made in thousands of cases each year.

Investigators received several months’ worth of historical cell-site records, which indicate which cell towers a cellphone connected with while it was in use. Based on those records, investigators were able to determine that, over a five-month span in 2010 and 2011, Carpenter’s cellphone connected with cell towers in the vicinity of the robberies. After his arrest, Carpenter argued that the records should be suppressed because the government had not obtained a warrant for them. But the district court disagreed, and Carpenter was convicted and sentenced to almost 116 years in prison.

A federal appeals court upheld his convictions. Applying the Supreme Court’s decision in Smith (among others), it ruled that the government was not required to obtain a warrant because Carpenter could not have expected that cellphone records maintained by his service provider would be kept private. Carpenter then asked the justices to weigh in, which they agreed to do in June.

Carpenter contends that the disclosure of his cellphone records to the federal government was a “search” for which the government needed a warrant. At the heart of this argument is the idea that, as Sotomayor has suggested, times have changed, and cellphones are different from the more primitive phone technology and bank records at issue in Smith and Miller. Therefore, he tells the justices, they should not “mechanically” apply their earlier decisions, but should instead use a more “nuanced” approach that accounts for both the volume and precision of the data that is now available for cellphones. And, in particular, the fact that a third party, such as Carpenter’s cellphone provider, has access to his cellphone records does not automatically mean that he cannot expect those records to remain private.

But even under Smith and Miller, Carpenter continues, he would still prevail. To determine whether he can expect his records to be kept private, he contends, the justices should look at whether he voluntarily gave the records to his service provider. Here, he stresses, he did not do so “in any meaningful way,” because he did not affirmatively give information about his location to his service provider by either making or receiving a call. Moreover, he suggests, another factor that the justices should consider – his privacy interest in the information revealed by the records – weighs heavily in his favor. Most people have their phones with them all the time, he emphasizes, which means that cellphone records can show where someone was and what he was doing at any given time, even in places – most notably, at home – where he would expect privacy.

In a “friend of the court” brief, the Electronic Frontier Foundation and other privacy groups echo Carpenter’s arguments. In particular, the groups highlight how times have changed since the court’s third-party-doctrine decisions in the 1970s. Here, they observe, the SCA gives law-enforcement officials access to much more information than just the few days’ worth of dialed phone numbers at issue in Smith. Moreover, the data that can be obtained under the SCA are generated simply by the act of carrying a phone that has been turned on: It “is created whenever the phone tries to send and receive information, generally without forethought or conscious action by the owner.”

For the federal government, this case is a straightforward one, regardless of any “new technologies” like cellphones that may be involved. First, the government contends, Carpenter does not have any ownership interest in the cellphone records turned over to police by his service providers. Those providers, the government reasons, simply collected the information for their own purposes, which included a desire to “find weak spots in their network and to determine whether roaming charges” should apply.

Second, the government adds, Carpenter does not have any reasonable expectation of privacy in the cellphone records, which only tell the government where his cellphone connected with the towers, without giving it any information about what was said in his calls – a “core distinction,” according to the government. What Carpenter’s argument really boils down to, the government argues, is that “law-enforcement officers could infer from” his service-providers’ records that he was near a particular cell tower at a particular time. But, the government counters, “an inference is not a search.”

The federal government also pushes back against Carpenter’s suggestion that “broader privacy concerns” weigh in favor of Fourth Amendment protection for his cellphone records. Cellphone users like Carpenter know (or at least should know) how their phones work: by giving off signals that are sent to the cellphone providers through the closest tower. Therefore, the government contends, Carpenter “assumed the risk that the information would be divulged to police.”

Carpenter’s argument that cellphone records are somehow “more private” than the financial information that was not protected in Miller has no real support, the government tells the justices. And the information at issue in Carpenter’s case is more limited than in United States v. Jones, in which the Supreme Court ruled that the installation of a GPS tracking device on a suspect’s car, without a warrant, violated the Fourth Amendment. In Jones, the government points out, the police used the GPS device to follow the car’s movements continuously for 28 days, allowing them to pinpoint the car’s location to within 50 to 100 feet. Here, the government emphasizes, the only information that the government received was which tower connected with Carpenter’s phone when he was making the calls.

Carpenter’s case is not the Supreme Court’s first foray into the intersection of cellphone technology and the Fourth Amendment. In 2014, the justices ruled that police must obtain a warrant to search information stored on the cellphone of someone who has been arrested. In his opinion for the court, Chief Justice John Roberts emphasized that today’s phones are “based on technology nearly inconceivable just a few decades ago” and “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” And the justices made clear that their decision did not render the information on a cellphone completely off limits to police; it just meant that police officers will normally have to get a warrant. The justices may ultimately conclude that, as the federal government argues, giving law-enforcement officials access to information about where a particular cellphone has been is not the same as allowing them to review the kind of “detailed personal facts” available on the phone itself. But no matter what they decide, their ruling could shed significant new light on what limits the Fourth Amendment will impose on efforts by police to benefit from the significant technological advances in the 21st century.

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No stay for Ohio executions

No stay for Ohio executionsOver a dissent from Justice Sonia Sotomayor that was joined by Justice Ruth Bader Ginsburg, the Supreme Court last night declined to block the executions of three Ohio men. One of the inmates, Ronald Phillips, is scheduled to be put to death today for the 1993 rape and murder of his girlfriend’s daughter. Phillips and […]

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No stay for Ohio executions

Over a dissent from Justice Sonia Sotomayor that was joined by Justice Ruth Bader Ginsburg, the Supreme Court last night declined to block the executions of three Ohio men. One of the inmates, Ronald Phillips, is scheduled to be put to death today for the 1993 rape and murder of his girlfriend’s daughter.

Phillips and the other two inmates, Gary Otte and Raymond Tibbetts, had challenged the three-drug protocol that the state plans to use to carry out their executions, arguing that it violates the Eighth Amendment’s ban on cruel and unusual punishment. Phillips’ execution would be the first in Ohio since 2014, when inmate Dennis McGuire was executed using a different combination of drugs. Eyewitnesses said that McGuire appeared to be gasping for air and sometimes choking for roughly half of the 24 minutes it took him to die.

The Supreme Court has ruled that inmates challenging a planned method of execution must show both that the method creates a substantial risk of severe pain and that a less painful alternative is known and available. A federal district court ruled that Phillips and the other inmates had made this showing. It pointed to expert testimony which suggested that midazolam, the first drug in the state’s lethal-injection protocol, will sedate the inmate but will not render him impervious to the pain that the second and third drugs – which paralyze him and then stop his heart – can cause. Moreover, the district court concluded, the inmates had demonstrated that Ohio could use another drug – pentobarbital, a barbiturate that would prevent the inmate from feeling pain – as part of the three-drug protocol instead. But a divided federal appeals court reversed, prompting the inmates to go to the Supreme Court.

The justices refused to intervene. In her brief dissent, Sotomayor complained that the lower court should have given more deference to the district court’s findings. Sotomayor referred back to her dissent in another lethal-injection case earlier this year, in which she had expressed “significant doubts about the wisdom of imposing the perverse requirement that inmates offer alternative methods for their own execution” but, at the very least, had urged her colleagues to provide “clarification and guidance” on the rule. Last night, she closed her opinion by indicating that she would “dissent again from this Court’s failure to step in when significant issues of life and death are present.”

Phillips is scheduled to be executed at 10 a.m. local time today. The executions of Otte and Tibbetts are currently scheduled for September 13 and October 18, respectively.

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An introduction to the Alien Tort Statute and corporate liability: In Plain English

An introduction to the Alien Tort Statute and corporate liability: In Plain EnglishFounded in Jerusalem nearly a century ago, Jordan’s Arab Bank now has over 600 branches on five continents. The bank describes itself as “an active and leading partner in the socio-economic development” of the Middle East – a description borne out by its work with the U.S. Agency for International Development, Oxfam, Save the Children […]

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An introduction to the Alien Tort Statute and corporate liability: In Plain English

Founded in Jerusalem nearly a century ago, Jordan’s Arab Bank now has over 600 branches on five continents. The bank describes itself as “an active and leading partner in the socio-economic development” of the Middle East – a description borne out by its work with the U.S. Agency for International Development, Oxfam, Save the Children and Catholic Relief Services. The Israeli government uses the bank as a conduit to transfer taxes that it collects for the Palestinian Authority, and the United States government has characterized the bank as a “constructive partner” in its efforts to combat money laundering and the financing of terrorism. But on October 11, the Supreme Court will hear oral argument in a case brought by victims of terrorist attacks that occurred between 1995 and 2005 in Israel, the West Bank and Gaza. They allege that, through its New York branch, Arab Bank maintained accounts for known terrorists, accepted donations that it knew would be used to fund terrorism, and distributed millions of dollars to families of suicide bombers – known as “martyrdom” payments. The question before the justices isn’t whether the victims’ allegations are true, but instead whether the bank can be sued in U.S. courts at all.

The victims have brought their lawsuits in U.S. courts under the Alien Tort Statute, a federal law that gives federal courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law or nations or a treaty of the United States.” Judge Henry Friendly once described the ATS, which was enacted as part of the Judiciary Act of 1789, as a “kind of a legal Lohengrin,” after the mythical German knight who arrives in a boat pulled by swans, because “no one seems to know whence it came.”

The ATS went mostly unused until 1980, when a Paraguayan doctor and his daughter filed a lawsuit in the United States against Americo Pena-Irala, a former Paraguayan police official living in New York. The plaintiffs, Joel and Dolly Filartiga, alleged that Pena-Irala had kidnapped Joel’s son and Dolly’s brother, Joelito, and tortured him to death in retaliation for Joel’s opposition to the Paraguayan government. The Filartigas argued that the ATS gave U.S. courts jurisdiction over their lawsuit; the U.S. Court of Appeals for the 2nd Circuit agreed, observing that torture violates the law of nations.

In the years since the Filartiga decision, plaintiffs increasingly relied on the ATS as the basis for lawsuits filed in U.S. courts seeking compensation for human-rights violations that occurred overseas. These lawsuits were brought not only against foreign government officials, but also against multinational corporations for their role in “aiding and abetting” human-rights violations by foreign governments.

The defendants in these lawsuits pushed back against what they saw as efforts to make the United States, as Chief Justice John Roberts once put it, the “moral custodian” of the world. In 2004, the Supreme Court indicated that the kinds of claims that could be brought under the ATS are relatively limited. In Sosa v. Alvarez-Machain, the court ruled that the ATS itself is only jurisdictional – that is, it merely gives courts the power to hear cases, but does not itself provide a cause of action. The court also concluded that the drafters of the ATS would have intended any such cause of action to come from the common law, which is not enacted by the legislature but instead formulated by judges. And the common law at the time would have allowed lawsuits alleging “a narrow set of violations of the law of nations” – violations of safe-passage guarantees, violations of an ambassador’s rights, and piracy – that could have had serious repercussions for foreign relations.

Claims brought under the ATS now, the court cautioned, should go forward only if they both are widely accepted as a violation of international norms and can be defined as specifically 18th-century wrongs like piracy. The court added two additional caveats. First, it noted, “the determination whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of” allowing litigants to rely on that norm. Second, courts considering claims under the ATS should also take into account not only whether international law recognizes the norm that has allegedly been violated, but also whether international law would allow this particular defendant to be held liable for violating it, “if the defendant is a private actor such as a corporation or individual.”

The ATS returned to the Supreme Court nearly a decade later, in Kiobel v. Royal Dutch Petroleum Co. The lawsuit was filed by Nigerians living in the United States, who alleged that Royal Dutch and its related companies had solicited help from the Nigerian government to suppress opposition from local residents to the companies’ environmental practices, leading to serious human-rights abuses by Nigerian government forces. The U.S. Court of Appeals for the 2nd Circuit dismissed their complaint, ruling that corporations cannot be held liable under the ATS. The Supreme Court agreed to review the case and even heard oral argument, but the justices then asked the two sides to address another question: whether claims can be brought under ATS for conduct that occurs in another country. In an opinion by Roberts, the court reasoned that the principles underlying the general presumption that U.S. law does not apply outside the United States extend fully to the ATS. Because the conduct at the heart of the Nigerian plaintiffs’ claims happened outside the United States, the court concluded, U.S. courts did not have the authority to hear the case.

Although the court in Kiobel did not decide whether corporations can be held liable under the ATS, that question is now squarely back before it in Jesner v. Arab Bank. The plaintiffs in the case, who are not U.S. citizens, contend that Arab Bank “violated the law of nations insofar as it financed terrorism, and also insofar as it directly and indirectly engaged in genocide and crimes against humanity.” In their view, the text of the ATS confirms that it can be used to hold corporations liable for violations of the law of nations. When Congress enacted the law, the plaintiffs observe, it was “unquestionable” that corporations could be held liable for torts, and nothing has changed since then. Indeed, although the ATS clearly puts restrictions on who can be a plaintiff in a lawsuit under the ATS – only “aliens” – it does not do so for defendants, even though Congress did limit classes of defendants in other provisions of the same act.

The history and purpose of the ATS, the plaintiffs continue, reinforce that the ATS applies equally to corporations. Congress passed the Judiciary Act, they explain, to ensure that federal courts had jurisdiction over lawsuits alleging violations of the law of nations, such as an assault on a French diplomat. There is no reason to believe that Congress wanted to avoid foreign-relations problems created by individuals but not by corporations.

More generally, the plaintiffs add, it is essential to be able to hold corporations liable to compensate for and deter ATS violations. “When an individual acts on behalf of an entity,” they reason, “it often is necessary to hold the entity accountable to provide an ‘adequate remedy’ and to meaningfully deter future misdeeds.” And in cases like these involving terrorism financing, they conclude, “corporate liability is the only meaningful option” to address the wrongdoing: Even if you can identify the individuals involved (which is itself a difficult task), “securing jurisdiction and collecting judgments against them would be even more difficult.”

The plaintiffs have support from a wide range of “friends of the court,” including a bipartisan brief from Senators Lindsey Graham and Sheldon Whitehouse. The senators emphasize that the ATS is the only avenue for civil lawsuits “against financial entities that use U.S. operations to aid terrorist attacks on foreign nationals overseas.” Indeed, they stress, specific allegations that Arab Bank “used its U.S. office to launder funds for Hamas are at the very core of this case.” And if defendants like Arab Bank cannot be sued under the ATS for their U.S.-based transactions, it will create “a dangerous gap that terrorists and their funders may exploit.”

Pointing to the Supreme Court’s 2004 decision in Sosa, Arab Bank counters that the plaintiffs’ claims can go forward only if they can show “that corporate liability is universally recognized in international law.” But this, the bank emphasizes, they have not done, as they have failed to “point the Court to a single instance of a corporation being held liable by an international tribunal under customary international law.” And indeed, the bank adds, even U.S. law does not allow corporations to be held liable in similar areas of the law – such as private lawsuits under the Supreme Court’s 1972 decision in Bivens v. Six Unknown Named Agents, seeking damages for civil-rights violations in the United States.

And the bank dismisses the senators’ suggestion “that the decision below will ‘create a troubling gap in U.S. global counterterrorism efforts’” as “pure hyperbole.” Other remedies are available to combat terrorism, it suggests, including federal criminal law – which bars material support to terrorists – and federal regulations and sanctions programs. Moreover, the bank emphasizes, those remedies allow prosecutors and regulators to exercise “discretion in an area fraught with foreign policy considerations” – discretion, they add, “to which the Plaintiffs’ bar in a private suit will pay no heed.”

The U.S. Chamber of Commerce and other business groups echo some of the bank’s arguments against corporate liability. They tell the justices that ATS lawsuits against corporations have run rampant in recent decades, pointing the court to “more than 150 ATS lawsuits against U.S. and foreign corporations doing business in two dozen industry sectors,” arising out of corporate activity in “more than 60 countries.” Allowing corporations to be sued under the ATS could create an imbalance that Congress certainly could not have intended, they add, because a related federal law – the Torture Victims Protection Act – only allows lawsuits against individuals. A ruling for the plaintiffs in this case, the business groups argue, would mean that noncitizens could bring lawsuits against U.S. corporations for torture but U.S. citizens could not.

The federal government takes a middle ground in its brief, filed in late June. It rejects the bank’s argument that the ATS forecloses corporate liability. But at the same time, it is skeptical that the lawsuits in this case should go forward, arguing that the mere fact that the bank may have routed foreign transactions in dollars through the bank’s U.S. branch does not establish the kind of connection to the United States that the Supreme Court requires. The purpose of the ATS, the government contends, is to ensure that private lawsuits for damages can be brought “in circumstances where other nations might hold the United States accountable if it did not provide a remedy.” But the “dollar’s prevalence as the currency of choice for unlawful actors does not,” the government concludes, “in itself present such a circumstance.”

The bank made similar arguments last year in its efforts to ward off Supreme Court review: It argued, among other things, that “there is no need to reach the question of corporate liability because” the plaintiffs’ claims “do not have a sufficient nexus to the United States to be litigated in U.S. courts.” But the justices nonetheless agreed to take on the case, which strongly suggests that – at least with regard to the need to tackle the corporate liability question – they disagree. How they will answer that question is less clear, but we are likely to know sometime next year.

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Court releases October calendar

Court releases October calendarThe Supreme Court term that ended in late June may have lacked the high-profile cases found in many of the terms that preceded it, but the new term will have no shortage of blockbusters. Today the justices released the calendar for October’s oral arguments, which will include not only the dispute over President Donald Trump’s […]

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Court releases October calendar

The Supreme Court term that ended in late June may have lacked the high-profile cases found in many of the terms that preceded it, but the new term will have no shortage of blockbusters. Today the justices released the calendar for October’s oral arguments, which will include not only the dispute over President Donald Trump’s “travel ban” but also a major dispute over partisan gerrymandering, two immigration cases that have been scheduled for a second round of oral argument, and an important arbitration case in which the United States has switched sides and now supports the employers.

The headliner in the October calendar is the litigation over Trump’s March 6 executive order, which put a freeze on both new visas for travelers from six predominantly Muslim countries (Iran, Libya, Sudan, Somalia, Syria and Yemen) and the admission of refugees into the United States. Two lower courts had blocked the Trump administration from implementing the order, but on June 26 the Supreme Court reinstated the ban, allowing the government to enforce it against travelers and refugees who do not already have a genuine relationship with an individual or institution in the United States. That ruling kicked off another round of litigation over the scope of the June 26 order, culminating in an order earlier today in which the justices declined to disturb a Hawaii district judge’s definition of “close” relatives (which was more expansive than the government would have liked) but put on hold his definition of which refugees should be allowed to enter the country. In the oral argument on the “travel ban” scheduled for October 10, the justices will be reviewing the lower courts’ decisions barring the government from enforcing the order; the two cases – Trump v. Hawaii and Trump v. International Refugee Assistance Project – have been consolidated for one hour of oral argument.

On October 3, the justices will hear oral argument in Gill v. Whitford, in which they will review Wisconsin’s appeal from a decision by a three-judge federal district court striking down the state’s redistricting map, which was created by the Republican-controlled legislature after the 2010 census. The district court ruled that the map was the product of partisan gerrymandering – that is, the practice of drawing a legislative map to give one political party an advantage. In 2004, a deeply divided Supreme Court declined to weigh in on a partisan-gerrymandering challenge to Pennsylvania’s redistricting map. Four justices agreed that courts should never review partisan-gerrymandering cases because it is too hard to formulate a manageable standard, while four justices contended that courts should be able to review those cases. Justice Anthony Kennedy provided the crucial vote: He believed that the justices should stay out of the Pennsylvania case but left open the possibility that courts could review similar cases in the future.

On October 2, the justices will kick off their term with three arbitration cases, which have been consolidated for one hour of oral argument. In National Labor Relations Board v. Murphy Oil USA, Epic Systems Corp. v. Lewis, and Ernst & Young v. Morris, the justices agreed to decide whether agreements to forgo class actions or collective proceedings and instead resolve disputes between an employer and its employees through arbitration are enforceable under the Federal Arbitration Act. The NLRB – then represented by the Office of the Solicitor General – filed its petition for review in September 2016, before the presidential election in November. In late June of this year, the United States (but not the NLRB) filed a “friend of the court” brief supporting the employers, rather than the employees; the NLRB is likely to file its own brief in August.

The October 2 oral argument in the arbitration cases will be followed by a reargument of Sessions v. Dimaya, in which the justices will again consider whether the Immigration and Nationality Act’s definition of “crime of violence” – for which a noncitizen can be deported from the United States – is so ambiguous that it violates the Constitution’s bar on vague criminal laws. On October 3, the justices will hear oral argument for a second time in Jennings v. Rodriguez, in which they are considering whether immigrants who are detained have a right to appear in front of an immigration judge and seek their release after making payments to guarantee that they will appear at later proceedings in the same case. The court had only eight members when it heard oral argument in these cases for the first time; its late-June order setting the cases for a second round of oral argument suggests that the eight justices attempted to reach an agreement but were ultimately deadlocked, making the court’s newest justice, Neil Gorsuch, the key vote.

Here is a complete list of the cases slated for oral argument in October, with brief summaries of the cases not already covered above:

  • Epic Systems Corp. v. Lewis, National Labor Relations Board v. Murphy Oil USA and Ernst & Young v. Morris (October 2)
  • Sessions v. Dimaya (October 2)
  • Gill v. Whitford (October 3)
  • Jennings v. Rodriguez (October 3)
  • District of Columbia v. Wesby (October 4): Whether police officers who responded to a noise complaint and found late-night partiers at a vacant home had probable cause to arrest them for trespassing, when the partiers told the officers that they had been invited to the house and had no intention to trespass; and whether the police officers are entitled to qualified immunity.
  • Class v. United States (October 4): Whether a defendant who pleads guilty waives the right to challenge the constitutionality of the statute under which he was convicted.
  • Trump v. Hawaii and Trump v. International Refugee Assistance Project (October 10)
  • Hamer v. Neighborhood Housing Services of Chicago (October 10): Whether the federal rule governing extensions for appeals, which allows district courts to extend the deadlines for filing appeals by 30 days, is jurisdictional or instead a claims-processing rule.
  • National Association of Manufacturers v. Department of Defense (October 11): Whether challenges to a 2015 rule that defines the term “waters of the United States” for purposes of the Clean Water Act should be filed first in federal district court or a federal court of appeals.
  • Jesner v. Arab Bank (October 11): Whether the Alien Tort Statute, which gives federal district courts jurisdiction over civil lawsuits filed by non-U.S. citizens for wrongful acts that violate international law, allows lawsuits against corporations.

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Court hands each side a partial victory in dispute over scope of travel ban

Court hands each side a partial victory in dispute over scope of travel banOn the same day that it scheduled oral argument in the dispute over President Donald Trump’s March 6 executive order, the Supreme Court turned down a request by the federal government to clarify exactly what it meant when it said that individuals with a close family relationship could continue to apply for visas to enter […]

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Court hands each side a partial victory in dispute over scope of travel ban

On the same day that it scheduled oral argument in the dispute over President Donald Trump’s March 6 executive order, the Supreme Court turned down a request by the federal government to clarify exactly what it meant when it said that individuals with a close family relationship could continue to apply for visas to enter the United States even while the freeze on new visas for travelers from six predominantly Muslim countries is in place. Today’s order left in place a ruling by a federal district judge in Hawaii that had defined the relationships more expansively than the government had wanted – to include, among others, grandparents and grandchildren. But the justices also put a portion of that lower-court ruling relating to refugees on hold while an intermediate federal appeals court reviews it.

The president’s March 6 order, often known as the “travel ban,” halted the issuance of new visas for travelers from six predominantly Muslim countries – Iran, Libya, Sudan, Syria, Somalia and Yemen – and temporarily suspended the admission of refugees into the United States. Two different lower courts blocked the government from implementing the order, but on June 26 the Supreme Court allowed the government to go ahead and enforce it, with an exception for travelers and refugees who have a “credible claim” of a genuine relationship with an individual or institution in the United States.

The Court’s June 26 order led to litigation over the scope of the exception. The Trump administration insisted that it extended to parents (and stepparents), spouses (and fiancés or fiancées), sons and daughters (as well as stepchildren and sons- and daughters-in-law), and siblings, but not to a broader group of relatives such as grandparents, grandchildren, aunts and uncles, siblings-in-law, nieces and nephews, and cousins. But U.S. District Judge Derrick Watson agreed with the state of Hawaii that the second and broader group of relatives also have the kind of “close” family relationship that should allow them to apply for visas even while the travel ban is in effect. The justices today denied the federal government’s motion to clarify which relatives can apply for a visa, leaving Judge Watson’s more expansive definition in place.

However, the justices did grant the government’s request to put another portion of Judge Watson’s ruling on hold while the government goes to the U.S. Court of Appeals for the 9th Circuit. Judge Watson had ruled that, for purposes of the June 26 order, the freeze on the admission of refugees would not apply to refugees for whom the federal government had already entered into an agreement with an agency to help the refugees with resettlement after they enter the United States. The government had argued that the judge’s ruling went too far, because a resettlement agency does not actually have a relationship with the refugees it is assisting until they arrive in the United States, and that the ruling effectively rendered the limits imposed by the March 6 order meaningless. Now the 9th Circuit will weigh in on whether such refugees have enough of a connection to the United States to come here. Notably, three justices – Clarence Thomas, Samuel Alito and Neil Gorsuch – indicated that they would have put all of Judge Watson’s ruling (rather than simply the part involving refugees) on hold until the 9th Circuit can rule on the government’s appeal.

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Hawaii urges justices to deny motion for clarification on travel ban

Hawaii urges justices to deny motion for clarification on travel banThe state of Hawaii responded today to last week’s request by the Trump administration to clarify exactly who can enter the United States under President Donald Trump’s March 6 executive order, popularly known as the “travel ban.” In a brief filed with the Supreme Court shortly before noon EDT, the state did not mince words […]

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Hawaii urges justices to deny motion for clarification on travel ban

The state of Hawaii responded today to last week’s request by the Trump administration to clarify exactly who can enter the United States under President Donald Trump’s March 6 executive order, popularly known as the “travel ban.” In a brief filed with the Supreme Court shortly before noon EDT, the state did not mince words as it urged the Supreme Court to leave in place a ruling by a federal judge that interpreted the scope of the March 6 order more expansively than the Trump administration had wanted.

The president’s March 6 order put a temporary freeze on both visas for travelers from six predominantly Muslim countries (Iran, Sudan, Somalia, Syria, Libya and Yemen) and the admission of refugees into the United States. After federal judges in Hawaii and Maryland blocked the federal government from implementing the order, the Trump administration went to the Supreme Court, which on June 26 allowed the order to go into effect but prohibited the government from enforcing the order against individuals who have a genuine relationship with an institution or person in the United States.

The justices agreed to hear oral argument in the fall on the merits of the lower courts’ rulings putting the March 6 order on hold. But meanwhile, the dispute over the order has shifted to another question: Which travelers and refugees should be allowed to enter the United States under the court’s June 26 order? In guidance issued in late June, the federal government indicated that the spouses (as well as fiancés and fiancées), parents and children (including by marriage) and siblings of U.S. citizens and permanent residents would be eligible to apply for visas to come to the United States. That definition prompted Hawaii to go back to court, arguing that the Trump administration did not go far enough.

U.S. District Judge Derrick Watson agreed with the state. In a ruling issued last week, Watson rejected the government’s narrower definition and concluded that grandparents, grandchildren, aunts and uncles, nieces and nephews, cousins and siblings in law also have the kind of close family relationships that would allow a traveler from one of the six majority-Muslim countries to apply for a visa. Moreover, he added, the March 6 order would not apply to refugees for whom the federal government has entered into an agreement with a resettlement agency, because those refugees have a genuine relationship with a U.S. institution.

The federal government then returned to the Supreme Court, seeking to block Judge Watson’s most recent ruling from going into effect. In their response to the government’s filing, the state raises both substantive and procedural objections to last week’s motion. Describing the government’s argument that Watson’s order has “eviscerated” the Supreme Court’s June 26 ruling as “nonsense,” the state points out that even under the district judge’s more expansive reading of the June 26 ruling, the government will still be able to implement the March 6 executive order “against more than 85% of refugees” and can “exclude countless extended family members—second cousins, great aunts, and so forth—and other individuals who indisputably lack close relationships with American individuals and entities.”

Moreover, the state adds, the government’s request to clarify the scope of the court’s June 26 order is “truly extraordinary” and (among other things) has no “basis in this Court’s settled procedures and precedents.” Instead, the state emphasizes, any clarification should come from the lower courts rather than the Supreme Court.

When the justices directed the state to file a response to the federal government’s motion, they did not mention any opportunity for the Trump administration to file a reply to the state’s brief. With Hawaii’s brief now filed, this means that the justices could act quickly on the government’s request.

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Federal government asks Supreme Court to clarify order in travel ban litigation

Federal government asks Supreme Court to clarify order in travel ban litigationThe battle over President Donald Trump’s March 6 executive order, often referred to as the “travel ban,” returned to the Supreme Court on Friday night, as the federal government asked the justices to clarify exactly who should be allowed to enter the United States under the order. This week’s ruling by a federal judge in […]

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Federal government asks Supreme Court to clarify order in travel ban litigation

The battle over President Donald Trump’s March 6 executive order, often referred to as the “travel ban,” returned to the Supreme Court on Friday night, as the federal government asked the justices to clarify exactly who should be allowed to enter the United States under the order. This week’s ruling by a federal judge in Hawaii, the Trump administration complained, interpreted a June 26 order by the Supreme Court, allowing the government to implement the March 6 order, so expansively that it effectively read any limits out of the June 26 order. The Supreme Court therefore should step in, the government told the justices, because “the correct interpretation” of the justices’ order “is a legal question that only this Court can authoritatively resolve.”

The Friday night filing was just the latest round in the dispute over the March 6 order, which imposed a freeze on new visas for travelers from six predominantly Muslim countries (Iran, Libya, Syria, Sudan, Yemen and Somalia) and temporarily suspended the admission of refugees into the United States. In June, the Trump administration asked the Supreme Court to weigh in after federal courts in Hawaii and Maryland barred the government from implementing the order. On June 26, the justices agreed to do so: In an unsigned order, the justices allowed the order to go into effect but barred the Trump administration from enforcing the ban with respect to individuals who have a “credible claim” of a genuine relationship with an individual or institution in the United States.

Within a few days of the Supreme Court’s June 26 order, the federal government issued guidance on the kinds of “close” family relationships that would allow travelers from the countries affected by the ban to seek visas. The government’s definition included spouses (and fiancés or fiancées), children and parents (including by marriage) and siblings, but did not include grandparents, grandchildren, aunts and uncles, nieces and nephews, cousins or siblings in law.

The challengers in the Hawaii case went back to court, asking U.S. District Judge Derrick Watson to clarify that the second group of relatives also qualified as “close” family relationships for purposes of the Supreme Court’s June 26 order. Judge Watson initially declined to do so, but – on appeal – the U.S. Court of Appeals for the 9th Circuit suggested that he had the authority to enforce or modify an existing order blocking the implementation of the ban. When the challengers returned to his court, Judge Watson did exactly that, adopting an expanded definition of “close” that included the second group of relatives. He also ruled that, for purposes of the June 26 order, the ban would not apply to refugees for whom the federal government has entered into an agreement with a resettlement agency, because those refugees have the kind of genuine relationship with a U.S. institution that the justices envisioned.

On Friday the Trump administration asked the Supreme Court to clarify that Judge Watson’s ruling goes beyond the scope of its June 26 order and to block the ruling from going into effect. The district court’s ruling on refugees, the government argued, misses the point because the government enters into contracts with resettlement agencies to help refugees after they arrive in the United States. But until they arrive in the United States, the government explained, the agency does not have a relationship (and often does not have any contact whatsoever) with the refugee; the only relationship is between the government and the agency. Therefore, the government concluded, the link between the refugee and the resettlement agency is too indirect to constitute the kind of genuine relationship required by the justices’ June 26 order.

Judge Watson’s ruling is also flawed, the government contended, insofar as it adopted a “boundless conception of ‘close family’ that essentially eliminates the ‘close’ requirement by covering virtually every conceivable familial connection.” The government’s more limited definition of “close” relationships, it argued, is grounded firmly in federal immigration law, and in particular the provisions governing which U.S. citizens and permanent residents can seek an immigrant visa for a family member living abroad.

The justices could grant the government’s request for a temporary stay or they could ask the challengers to respond; either way, they are likely to act quickly.

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An introduction to the travel ban: In Plain English

An introduction to the travel ban: In Plain EnglishIn December 2015, the presidential campaign of then-candidate Donald Trump issued a statement calling for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what’s going on.” Trump’s statement continued: “Until we are able to determine and understand this problem and the dangerous threat it poses, […]

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An introduction to the travel ban: In Plain English

In December 2015, the presidential campaign of then-candidate Donald Trump issued a statement calling for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what’s going on.” Trump’s statement continued: “Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victim of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life.” Fifteen months later, on March 6, 2017, citing national security concerns, President Trump signed an executive order that ordered a freeze on new visas for travelers from six Muslim-majority countries and suspended travel by refugees into the United States. Two federal appeals courts blocked the Trump administration from implementing the ban, but on June 26 the Supreme Court stepped in. The justices not only agreed to review the lower courts’ rulings in October, when they return from their summer break, but they also allowed the federal government to put at least part of the ban into effect until they can rule on the federal government’s appeals.

Trump’s March 6 order was not the administration’s first effort to restrict travel to the United States by visitors from predominantly Muslim countries. On January 27, Trump signed an order that barred citizens from seven such countries – Iraq, Syria, Sudan, Iran, Somalia, Libya and Yemen – from entering the country and suspended the refugee program. That order led to confusion around the world, with some travelers stranded in airports after they were denied entry to the United States and others prevented from boarding planes overseas. The order also prompted legal challenges, and on February 3 a federal district judge in Seattle temporarily blocked the government from enforcing the order. Six days later, a federal appeals court left that ruling in place.

Shortly after the appeals court’s ruling, Trump took to Twitter, with a message that seemed to promise an imminent appeal to the Supreme Court: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” But that appeal never came. Instead, on March 6, the president signed a new executive order that in many ways resembled its predecessor: It suspended both refugee admissions and travel to the United States for citizens of six of the seven predominantly Muslim countries covered by the January 27 order (removing Iraq from the list). But the second order did not contain the first order’s preference for religious minorities seeking to come to the United States as refugees, nor did it ban – as the first order did – Syrian refugees indefinitely.

Like the first executive order, the second order was quickly challenged in court. On May 25, the U.S. Court of Appeals for the 4th Circuit upheld a ruling by a federal district court from Maryland that barred the Trump administration from implementing the March 6 order. The 4th Circuit stated that the order violated the Constitution’s establishment clause, which (among other things) prohibits the government from favoring one religion over another. Pointing to statements made by Trump both as a candidate for the presidency and while in office, the court of appeals concluded that the order was intended to discriminate against Muslims, even if it did not say so specifically.

A few weeks later, on June 12, the U.S. Court of Appeals for the 9th Circuit also upheld a federal district court’s ruling – this time, from Hawaii – putting the executive order on hold. The 9th Circuit did not address whether the travel ban violates the establishment clause; instead, it ruled, the order cannot go into effect because it exceeds the president’s power, given to him by Congress, to regulate immigration.

This time, the Trump administration did ask the Supreme Court to intervene, both by reviewing the two lower-court rulings and by allowing the executive order to go into effect until it could hear oral argument and rule on the dispute. On June 26, the justices announced that they would indeed weigh in, with new briefing over the summer and oral argument when they return from their summer recess in October. And the justices took a middle ground on what should happen with the order during that time: In a brief and unsigned opinion, they allowed the Trump administration to put the order into effect, at least for travelers to the United States who don’t already have some connection to the country.

There are likely to be two main points of contention before the court when the justices hear oral argument in the fall. The first is whether, as the 4th Circuit held, the March 6 order violates the Constitution’s establishment clause. In the government’s view, it does not. The Supreme Court’s earlier cases, along with the need for courts to accord respect to a separate branch of government, the government contends, bar courts from blocking the executive order when it did not, on its face, discriminate against any specific religion but instead rested on the president’s determination that it was necessary to protect national security. Indeed, the government stresses, the 4th Circuit’s decision was “the first to hold that a provision of federal law—neutral on its face and in operation—violates the Establishment Clause based on speculation about its drafters’ supposedly illicit purpose.” And even if there were cases in which it would be appropriate for courts to consider more than just the text of the order and how it works to discern the order’s “true” purpose, the government adds, courts should not look to statements made by a candidate while campaigning, because ideas suggested during the campaign may well change once the candidate is elected and sees a need to do things differently.

The challengers counter that the 4th Circuit’s ruling that the order violates the establishment clause is completely consistent with the Supreme Court’s earlier case law. The Supreme Court, they emphasize, “has never held that courts must close their eyes to affirmative evidence that the executive branch has acted with an unconstitutional purpose.” This is particularly true, they continue, when ascertaining the purpose of this order does not require “judicial psychoanalysis”: There is, they say, an “extraordinary volume of publicly available, undisputed evidence that the Order was intended to disfavor Muslims.”

The federal government argues that the 9th Circuit’s conclusion that the executive order went beyond the president’s authority under federal immigration laws was “even more novel and extraordinary” than the 4th Circuit’s ruling that the order violates the Constitution. The government explains that federal law gives the president “exceedingly broad discretion” to suspend visas for foreigners when he believes that allowing them to enter the United States would be “detrimental” to the country’s interest. But it does not require, as the 9th Circuit ruled, the president to make specific factual findings to that effect. Indeed, the federal government points out, presidents have historically suspended the entry of foreigners for decades. And in any event, the government notes, the order makes “extensive findings” concerning the national-security risks the six countries covered by the order present.

The challengers characterize the government’s position as amounting to “unilateral and practically limitless immigration power” for the president. Although courts can certainly defer to a president’s determination regarding the relationship between immigration and national security, they contend, deference does not foreclose meaningful judicial review; it is exactly the job of the courts, they argue, to evaluate whether the president’s actions violate the Constitution. Moreover, although the Trump administration has argued that the freeze on refugees and travelers from the six predominantly Muslim countries is necessary to give government officials time to review the procedures that they use to vet applicants, the government has already had plenty of time to conduct such a review.

The two issues relating to the establishment clause and the president’s authority to issue the order are the main points of contention in the litigation, but at least two other questions could affect whether the justices reach those key issues at all. The first question is whether the challengers have a legal right to contest the executive order. The lower courts concluded that at least some of the individuals challenging the order have that right, for two reasons: The plaintiffs have relatives who want to travel to the United States but would be barred from doing so under the order, and the order is effectively a “state-sanctioned message condemning [their] religion and causing [them] to feel excluded and marginalized.” As for the state of Hawaii, which is also a plaintiff in one case, the 9th Circuit agreed that it could sue the government because the order would (among other things) prevent students and faculty from coming to the state’s university. But the Trump administration disputes both of these conclusions.

The second potential sticking point is whether the challenges to the provision that suspends entry for travelers from the six countries are still ongoing disputes. The challengers in the 4th Circuit case had told the justices that the provision would expire on June 14, 2017, because the order stated that the bar on travelers and refugees would apply for a 90-day period – beginning on March 16, when the order went into effect, and ending on June 14. However, on June 14, Trump amended the order, making clear that the bar would go into effect when the lower-court orders blocking its implementation had been lifted. When they granted review, the justices specifically asked both the government and the challengers to address this question in their briefs.

Under the Supreme Court’s rules, the federal government’s opening brief is due in early August, with the challengers’ briefs to follow in mid-September. But litigation in the lower courts has continued, as the two sides argue over what exactly the Supreme Court meant when it barred the government from enforcing the order against travelers who have a “close” relationship with people or institutions within the United States. In guidance issued shortly after the Supreme Court’s June 26 order, the federal government indicated that relatives such as parents, spouses, children and siblings will qualify as “close” relatives, but the government did not include other relatives – such as grandparents, grandchildren, nieces, nephews, aunts and uncles – in its definition. It’s not clear whether this dispute will make it to the Supreme Court before October’s oral argument, but it certainly could.

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