Justices take on First Amendment challenge to state abortion disclosure laws: In Plain English

Justices take on First Amendment challenge to state abortion disclosure laws: In Plain EnglishIn 2015, California lawmakers enacted the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act. The law, known as the Reproductive FACT Act, responded to concerns that crisis pregnancy centers – nonprofit organizations, often affiliated with Christian groups, that are opposed to abortion – were posing as full-service reproductive health clinics and providing pregnant women with […]

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Justices take on First Amendment challenge to state abortion disclosure laws: In Plain English

In 2015, California lawmakers enacted the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act. The law, known as the Reproductive FACT Act, responded to concerns that crisis pregnancy centers – nonprofit organizations, often affiliated with Christian groups, that are opposed to abortion – were posing as full-service reproductive health clinics and providing pregnant women with inaccurate or misleading information about their options.

The act imposes two different sets of requirements. Nonprofits that are licensed to provide medical services (such as pregnancy tests and ultrasound examinations) must post notices to inform their patients that free or low-cost abortions are available and provide the telephone number of the state agency that can put the patients in touch with providers of those abortions. Centers that are not licensed to provide medical services – but try to support pregnant women by supplying them with diapers and formula, for example – must include disclaimers in their advertisements to make clear, in up to 13 languages, that their services do not include medical help. California’s attorney general and local government lawyers can sue facilities that don’t comply with the law; the penalty is a $500 fine for the first offense and $1000 for any later violations.

The centers went to court, arguing that the law violates the First Amendment. First, they contended, requiring medical centers to post signs containing a phone number for information about low- or no-cost abortions is at odds with the anti-abortion message they want to convey. Moreover, they said, the law requires only groups that are opposed to abortion to relay the message, singling them out based on their views. Second, they asserted, the disclosures required for centers that are not licensed to provide medical services have two undesirable effects: The disclosures are so extensive and burdensome “that it is difficult, if not impossible, for unlicensed centers to advocate their own pro-life message in most media”; and those centers are compelled to “begin their expressive relationship with an immediate unwanted or negative message that crowds out and confuses their intended message.”

A federal district court rejected the centers’ arguments, and the U.S. Court of Appeals for the 9th Circuit affirmed. But last month the Supreme Court agreed to decide whether the disclosures required by the law violate the First Amendment’s free speech clause; it declined to weigh in on whether the disclosures run afoul of another part of the First Amendment that bars the government from prohibiting the free exercise of religion.

The centers are represented by lawyers for the Alliance Defending Freedom, which also played key roles in (among others) two recent high-profile cases: Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case of a Colorado man who says that requiring him to create custom cakes for same-sex weddings would violate his religious beliefs; and Zubik v. Burwell, a challenge by religious nonprofits to the workarounds offered to those who objected to the Affordable Care Act’s birth-control mandate. They argue that the 9th Circuit should have used the most stringent test – known as “strict scrutiny” – to review the Reproductive FACT Act’s constitutionality because the law is based on the content of the centers’ speech and discriminates based on their viewpoint.

When that standard is used, the centers contend, the law cannot survive. It places enormous burdens on the centers, even though California has not provided any evidence suggesting that the centers are actually causing any harm, and it applies to all pregnancy centers, even if they are not doing anything misleading. If the state were truly concerned that pregnant women aren’t getting information about state-funded options, the centers conclude, it could publicize that information itself.

California counters that the act targets two problems: Women who can’t afford medical care aren’t aware of the publicly funded options available to them, and when they go to these centers they are often confused about whether they are getting care and advice from medical professionals. The notices that the medical centers are required to provide, the state argues, fall “well within the First Amendment’s tolerance for the regulation of the practice-related speech of licensed professionals.” And the notices that the unlicensed centers must provide, the state continues, are permissible to prevent confusion about the nature of their care.

The justices are expected to hear oral argument in the case early next year, with a decision by the end of June. Their ruling could have ripple effects well beyond California: As Dahlia Lithwick and Mark Joseph Stern have observed at Slate, over a dozen states have laws that are intended to discourage women from having abortions by requiring abortion providers to tell their patients, for example, that there is a link between abortion and breast cancer or that abortion increases the risk of suicide. It is not clear what a ruling for the centers in this case would mean for those laws, but the potential parallels mean that a lot of people will be watching this case closely.

This post was originally published at Howe on the Court.

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No new grants today

No new grants todayAfter adding seven new cases to their merits docket on Friday, the justices issued additional orders from last week’s conference. They did not add any more new cases to their docket, but they did deny review in a high-profile case in which they had been asked to decide whether a federal civil rights law barring […]

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No new grants today

After adding seven new cases to their merits docket on Friday, the justices issued additional orders from last week’s conference. They did not add any more new cases to their docket, but they did deny review in a high-profile case in which they had been asked to decide whether a federal civil rights law barring employment discrimination “because of … sex” applies to discrimination based on sexual orientation.

The question arose in the case of Jameka Evans, who left her job as a security officer at a Georgia hospital, claiming that she had been harassed and passed over for a promotion because she is gay. The lower courts ruled that her case could not go forward because Title VII of the Civil Rights Act of 1964 does not prohibit workplace discrimination based on sexual orientation. The U.S. Court of Appeals for the 11th Circuit also ruled, however, that Evans could bring a claim alleging that she had been a victim of discrimination because she did not conform to gender stereotypes.

Evans then went to the Supreme Court, urging it to take up her case to resolve conflicting rules among the federal courts of appeals. Although the justices denied review after considering the case at just one conference, a procedural quirk in the case may have contributed to the decision to deny certiorari: The hospital where Evans worked (as well as the individual employees named in the lawsuit) told the justices that it had not participated in the case in the lower courts and would not do so in the Supreme Court even if review were granted. Evans and her lawyers responded that the hospital’s lack of participation should not thwart Supreme Court review, but the justices may have opted to wait for the issue to come to them again in a case with fewer complications.

The justices did not act on the case of Abel Hidalgo, the Arizona death-row inmate (represented by Neal Katyal, the former acting U.S. solicitor general) who has asked the Supreme Court to weigh in on the constitutionality of the death penalty. After considering Hidalgo’s cert petition at their December 1 conference, the justices asked the Arizona courts to send them the record in the case – which can be a sign either that at least one justice is looking at the case more closely or (especially in death-penalty cases) that someone is writing an opinion in the case. The most likely scenario seems to be that Justice Stephen Breyer, who in the past few years has repeatedly suggested that the Supreme Court should tackle the question now presented by Hidalgo’s case, is writing an opinion regarding the denial of review, but Hidalgo and we will almost certainly have to wait until the new year for an answer.

The justices’ next regularly scheduled conference is January 5, 2018.

This post was originally published at Howe on the Court.

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Court blocks DACA discovery orders – at least for now

Court blocks DACA discovery orders – at least for nowTonight a divided Supreme Court put on hold a set of lower-court orders that would require the federal government to turn over additional documents related to the Trump administration’s decision to end the policy known as Deferred Action for Childhood Arrivals – a Obama-administration program that allowed undocumented immigrants who came to the United States […]

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Court blocks DACA discovery orders – at least for now

Tonight a divided Supreme Court put on hold a set of lower-court orders that would require the federal government to turn over additional documents related to the Trump administration’s decision to end the policy known as Deferred Action for Childhood Arrivals – a Obama-administration program that allowed undocumented immigrants who came to the United States as children to apply for protection from deportation. In litigation challenging the decision to terminate DACA, a federal district court ruled that the government should submit documents beyond those that it turned over discovery, including documents from the White House and the Department of Justice and documents from the Department of Homeland Security. The district court later instructed the government to “be ready to file” a complete set of documents by December 22. Last week the government asked the justices to step in, and they did so, at least for now. In a brief, unsigned order, the Supreme Court indicated that the district court’s orders, “at least to the extent they require discovery and addition to the administrative record filed by the government,” would be stayed until the justices can act on the government’s petition challenging the orders.

Justice Stephen Breyer dissented from tonight’s order; he was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Breyer wrote that the relief that the government is requesting is “a drastic and extraordinary remedy reserved for really extraordinary causes” – but this case doesn’t even “come close.” The Supreme Court’s cases, as well as those of the lower courts, Breyer argued, point to the conclusion that what the district court has asked the government to do falls squarely within its powers. Breyer had no sympathy for the government’s complaint that complying with the orders will prove burdensome. The “underlying agency action here is important,” he stressed, and the number of documents at issue in the case is “by no means an unusually large number of documents.” More broadly, he suggested, today’s ruling means that the court will likely be asked to step into “run-of-the-mill discovery disputes in many other matters” – whether the federal government is involved or not.

The DACA challengers’ response to the government’s petition is due on Wednesday, December 13, by 4 p.m. The justices are likely to act quickly once the briefing is finished.

This post was originally published at Howe on the Court.

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Court adds seven new cases to merits docket

Court adds seven new cases to merits docketThe Supreme Court issued a preliminary set of orders from its conference today, adding seven new cases to its merits docket for the term. The new cases include a high-profile Maryland gerrymandering case, a dispute over federal sentencing laws and an effort to limit successive class actions. In October, the justices heard oral argument in a challenge […]

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Court adds seven new cases to merits docket

The Supreme Court issued a preliminary set of orders from its conference today, adding seven new cases to its merits docket for the term. The new cases include a high-profile Maryland gerrymandering case, a dispute over federal sentencing laws and an effort to limit successive class actions.

In October, the justices heard oral argument in a challenge to the redistricting plan passed by Wisconsin’s Republican-controlled legislature in 2011. Today they agreed to weigh in on Benisek v. Lamone, a challenge to another redistricting plan enacted in 2011, this time alleging that Democratic election officials in Maryland gerrymandered the state’s 6th congressional district in retaliation for the plaintiffs’ support for Republican candidates – specifically, Roscoe Bartlett, who represented them in Congress for two decades.

The plaintiffs told the justices that “the mapdrawers reshuffled fully half of the district’s 720,000 residents—far more than necessary to correct the mere 10,000-person imbalance in the district’s population following the 2010 census.” As a result, they explained, “registered Republicans’ share of the electorate fell from 47% to 33%,” and Bartlett lost his seat to a Democrat, John Delaney

The issues before the court center on what plaintiffs in a First Amendment retaliation challenge to partisan gerrymandering must show for their case to go forward. According to the plaintiffs in this case, the U.S. Court of Appeals for the 4th Circuit would have required them to show that “each and every outcome is (and will continue to be) singularly attributable to gerrymandering.” But all they should have to show, the plaintiffs countered, is that they have suffered some injury.

The case came to the Supreme Court in a slightly different procedural posture than the six cases in which the court granted certiorari today. Federal law channels redistricting cases to a three-judge district court, with an automatic appeal to the Supreme Court. In adding the case to its docket, the Supreme Court indicated that it would consider whether it has the authority to hear the case at the same time that it reviews the merits of the case.

A federal law allows a district judge to reduce an inmate’s sentence if the inmate was sentenced “based on a sentencing range that has subsequently been lowered by the” U.S. Sentencing Commission. The United States argued that the inmate in Koons v. United States is not eligible for sentence reductions because his sentence was not based on a sentencing range that was later lowered. Rather, the government told the justices, he was sentenced below the statutory mandatory minimum because he helped the government. Another case granted today, Hughes v. United States, involves a similar question: Whether an inmate who enters into a plea bargain under Federal Rule of Criminal Procedure 11(c)(1)(C) – which specifies that an attorney for the government will agree that a specific sentence is appropriate – is eligible to have his sentence reduced later if the sentencing guidelines are changed.

Another case granted today, Upper Skagit Indian Tribe v. Lundgren, arose out of a property dispute between the tribe and Ray and Sharline Lundgren, who owned property next door to property owned by the tribe in Washington. The Lundgrens filed a “quiet title” action against the tribe, to establish that they – rather than the tribe – actually owned a strip of land along the boundary between the two properties.

The tribe responded that the Lundgrens’ lawsuit should be dismissed because the tribe cannot be sued: Indian tribes have sovereign immunity unless they have waived that immunity or Congress has limited it – neither of which had occurred in the Upper Skagit Tribe’s case.

The trial court denied the tribe’s motion to dismiss the case, and a divided Washington Supreme Court affirmed. The majority ruled that, although the tribe itself could not normally be sued, the Lundgrens’ suit could go forward because the trial court was exercising jurisdiction over the property, rather than the tribe. The tribe urged the justices to review the Washington Supreme Court’s ruling, telling them that, although the North Dakota Supreme Court has reached the same conclusion, that holding conflicts with the decisions of the New Mexico Supreme Court and the U.S. Court of Appeals for the 2nd Circuit.

In a group of cases beginning with American Pipe & Construction v. Utah, the Supreme Court ruled that, when would-be class actions are filed, the statute of limitations is tolled for purported members for that class who want to either file their own lawsuits or intervene as plaintiffs if class certification is denied. Today the Supreme Court agreed to decide whether that same rule also tolls the statute of limitations to allow previously absent class members to bring their own class actions.

The plaintiffs in China Agritech, Inc. v. Resh, who are defending the U.S. Court of Appeals for the 9th Circuit’s ruling, own shares in China Agritech and filed a would-be class action alleging that the company had committed securities fraud. Their lawsuit followed two would-be class actions that were nearly identical, but the trial courts denied class certification in those cases. The district court dismissed the class complaint in this case, reasoning that it came too late. But the 9th Circuit allowed their lawsuit to go forward. It reasoned that, under American Pipe, previously absent members can file new class actions because the limitations period is tolled while the earlier would-be class actions are pending.

Urging the justices to grant review, China Agritech told them that the 9th Circuit’s decision “will lead to obvious forum-shopping,” because it will prompt plaintiffs to “choose a circuit that permits state class actions.” The Chamber of Commerce, a business group that filed a “friend of the court” brief supporting the company, put it even more starkly, telling the court that, if the 9th Circuit’s decision is allowed to stand, plaintiffs will be able to bring successive class actions arising out of the same allegations, even after class certification is initially denied. “Nothing will stop such zombie claims from arising again and again,” the group said.

The other cases granted today are:

  • Sveen v. Melin – Whether a state law providing that the designation of a spouse as a beneficiary (for example, of a life insurance policy) is automatically revoked if the couple divorces violates the Constitution’s contracts clause – which bars states from enacting laws that impair contracts – when the state law is applied to a contract that was signed before it was enacted.
  • United States v. Sanchez-Gomez – Whether the 9th Circuit should have reviewed the challenge by a group of individuals who were detained before trial to a policy of using full restraints for a variety of non-jury proceedings when the case was interlocutory and it had recognized that the individuals’ own claims were moot.

The justices are expected to issue additional orders from today’s conference on Monday morning at 9:30 am.

This post was originally published at Howe on the Court.

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Argument analysis: Conservative majority leaning toward ruling for Colorado baker

Argument analysis: Conservative majority leaning toward ruling for Colorado bakerLines began forming outside the Supreme Court last week for one of the biggest oral arguments of the year, in the case of a Colorado man who says that requiring him to create custom cakes for same-sex weddings would violate his religious beliefs. At the end of over an hour of debate, it became clear […]

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Argument analysis: Conservative majority leaning toward ruling for Colorado baker

Lines began forming outside the Supreme Court last week for one of the biggest oral arguments of the year, in the case of a Colorado man who says that requiring him to create custom cakes for same-sex weddings would violate his religious beliefs. At the end of over an hour of debate, it became clear that, at least in one respect, the case is just like so many others: It is likely to hinge on the vote of Justice Anthony Kennedy, who initially seemed sympathetic to the same-sex couple but later expressed real concern that Colorado had not been sufficiently tolerant of the baker’s religious freedom.

The dispute before the Supreme Court today dates back to 2012, when Charlie Craig and David Mullins went to Masterpiece Cakeshop, a Denver-area bakery, to order a special cake to celebrate their upcoming marriage. But Jack Phillips, the owner of the bakery, refused to make them a cake. Phillips, who describes himself as a “cake artist,” is also a Christian who closes his business on Sundays and refuses to design custom cakes that conflict with his religious beliefs – for example, cakes that contain alcohol, have Halloween themes or celebrate a divorce or same-sex marriage. The Colorado agencies responsible for enforcing the state’s anti-discrimination laws ruled that Phillips’ refusal to provide the custom cake violated those laws and that he had “no free speech right” to turn down Craig and Mullins’ request. They told Phillips that, if he decided to create cakes for opposite-sex weddings, he would also have to create them for same-sex weddings.

An appeals court in Colorado rejected Phillips’ argument that forcing him to make a cake for a same-sex couple would violate his right to free speech and to practice his religion freely, but his argument found more traction at the Supreme Court today. At first, Kennedy seemed to acknowledge the impact that a ruling for the baker could have for gays and lesbians. He told Solicitor General Noel Francisco, who argued on behalf of the United States in support of Masterpiece Cakeshop, that if the baker were to win, he could put up a sign indicating that he would not bake cakes for same-sex couples. That, Kennedy suggested, would be “an affront to the gay community.”

But later, Kennedy asked Colorado Solicitor General Frederick Yarger, representing the state, about a statement by a member of the Colorado Civil Rights Commission who noted that religious beliefs had in the past been used to justify other forms of discrimination, like slavery and the Holocaust. It is, the commission member contended, “one of the most despicable pieces of rhetoric that people can use their religion to hurt others.” If we thought that at least this member of the commission had based his decision on hostility to religion, Kennedy asked Yarger, could the judgment against Masterpiece stand? Kennedy returned to this idea again a few minutes later, telling Yarger that “tolerance is essential in a free society.” But Colorado, Kennedy posited, hasn’t been very tolerant of Phillips’ religious beliefs in this case.

The other conservative justices who spoke during the argument – Chief Justice John Roberts and Justices Samuel Alito and Neil Gorsuch – also seemed to favor Masterpiece’s arguments, while the court’s four more liberal justices largely supported the state and the same-sex couple. But even if there are five votes in favor of Masterpiece, it’s not clear how or whether the justices will draw a line that respects the religious beliefs of people like Phillips without opening up a Pandora’s box that, as Justice Stephen Breyer put it, could “undermine every civil rights law since year 2.”

A decision is expected by summer.

(This post will be expanded shortly.)

This post was originally published at Howe on the Court.

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Argument analysis: Subdued justices parse immunity law

Argument analysis: Subdued justices parse immunity lawThese days, the Supreme Court is known as a “hot bench”: Lawyers who argue there usually have to respond to a barrage of questions from all sides. That fast and furious questioning can make it hard for advocates to advance their arguments, but it also makes it easier for both the attorneys and spectators to […]

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Argument analysis: Subdued justices parse immunity law

These days, the Supreme Court is known as a “hot bench”: Lawyers who argue there usually have to respond to a barrage of questions from all sides. That fast and furious questioning can make it hard for advocates to advance their arguments, but it also makes it easier for both the attorneys and spectators to figure out what the justices care about, and how they might rule. The flip side of this is that when the justices are quieter, the advocates have more time to talk, but it’s harder to know what the justices are thinking.

The latter scenario was on display this morning at the Supreme Court, when the justices heard oral argument in Rubin v. Islamic Republic of Iran. The case is the latest chapter in efforts by American victims of a series of suicide bombings in Jerusalem in 1997 to recover a $71.5 million default judgment from the Islamic Republic of Iran for its role in providing support to Hamas, the terrorist group that claimed responsibility for the blast. After approximately 45 minutes of oral argument, the justices seemed likely to rule against the victims, but their relative silence made it difficult to know for sure.

Today’s case centers on the interpretation of the Foreign Sovereign Immunities Act, a federal law that carves out several narrow exceptions to the general rule that foreign countries cannot be sued in U.S. courts. One of those exceptions is known as the “terrorism exception”: It allows private citizens to bring lawsuits against countries that have been designated as state sponsors of terrorism. Another provision of the FSIA, Section 1610(g), provides that when a judgment is entered against a foreign state under the terrorism exception, both the state’s property and the property of its “agencies or instrumentalities” – that is, organizations or companies owned by the state –can be transferred to the prevailing party, without having to consider five different factors related to the foreign government’s control over the property.

Representing the victims at the Supreme Court today, attorney Asher Perlin told the justices that in 2008, Congress overhauled the FSIA terrorism exception to close a gap that had allowed state sponsors of terrorism to “thumb their noses” at U.S. judgments holding them liable for terrorism. Section 1610(g), Perlin asserted, was the “centerpiece” of that overhaul: It allows victims of terrorism to seize the property of either a foreign state or its agencies or instrumentalities, without having to satisfy any of the other conditions imposed in Section 1610 to “pierce the veil” separating a foreign state from such an organization or company.

Several justices were skeptical, however, that this interpretation was what Congress intended. Instead, Justice Ruth Bader Ginsburg suggested, Congress enacted Section 1610(g) to allow plaintiffs like the victims in this case to overcome the presumption that a judgment against a foreign state cannot be enforced against that state’s agencies and instrumentalities. The provision, she posited, “does so perfectly,” making more assets available for plaintiffs. But it doesn’t say anything about immunity, she observed.

Justice Sonia Sotomayor appeared to agree. She observed that in at least three cases seeking to seize the assets of a foreign state’s agency or instrumentality, the plaintiffs could not recover because there wasn’t a sufficiently close relationship between the state and agency or instrumentality. “So there was a real issue,” she concluded, that Section 1610(g) was addressing.

Justice Samuel Alito asked Perlin to explain what role another phrase in Section 1610(g) – which allows the property at issue to be seized “as provided in this section” – would play under his interpretation.

Perlin responded that the phrase was intended to signal that Section 1610(g) only applies to judgments entered under the terrorism exception, and it also extends the remedies available to plaintiffs in such cases, including punitive damages. But Alito appeared unconvinced, telling Perlin that the phrase was really “superfluous” under his reading.

The justices allowed Perlin to speak at some length without interruption. Among other things, he emphasized exactly what is at stake in the case. “My clients,” he told the justices, “have been waiting 20 years to enforce their judgment against Iran. But “Iran doesn’t pay judgments,” he said. “Congress finally said ‘enough is enough’” and created a “tool” to allow victims like his clients to enforce their judgments.

Arguing on behalf of the University of Chicago, where the ancient Persian artifacts that the victims are trying to seize are housed, attorney David Strauss agreed that – as Perlin had argued – the history of Section 1610(g) indicated that Congress had intended to “eliminate barriers” facing victims of state-sponsored terrorism. But Strauss parted ways with Perlin at that point, emphasizing that Congress sought to remove those barriers by “changing the legal standards” for piercing the veil between a foreign state and its agencies or instrumentalities. And the phrase “as provided in this section,” Strauss asserted, means that even victims of state-sponsored terrorism must still satisfy the other requirements to seize property under Section 1610 – specifically, that the foreign state use the property for commercial activity in the United States. The justices allowed Strauss, even more than Perlin, to speak at length, and he sat down early.

Representing the United States, which filed a “friend of the court” brief in which it urged the justices to affirm the narrower interpretation of Section 1610(g) advanced by the University of Chicago and Iran, Assistant to the Solicitor General Zachary Tripp faced even fewer questions than the advocates who went before him and sat down after having used less than half of his 10 minutes. Tripp made clear that the United States “has a very strong interest in combatting state-sponsored terrorism.” But at the same time, he added, the federal government also has concerns about how its own property overseas will be treated if the court rules for the victims in this case. “Particularly in light of those concerns which are quite weighty,” Tripp emphasized, “if Congress was really going to take the step of allowing execution against property of a cultural and historical significance to another country and its people, that would be a big deal and it would not be the kind of thing you would expect to see buried in a conforming amendment without remark.”

It’s hard to know what to make of the relative dearth of questions today. Sometimes a quiet bench can mean that the justices agree with the arguments being made, but other times it can signal that the justices have already made up their minds and don’t feel that additional questions will be useful. At today’s argument, the justices seemed more skeptical of the victims’ interpretation than the university and Iran’s, but we won’t know for sure until the court issues its opinion sometime next year.

This post was originally published at Howe on the Court.

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Justices allow full travel ban to go into effect while government appeals

Justices allow full travel ban to go into effect while government appealsThis afternoon the Supreme Court granted the federal government’s request to allow it to enforce the full set of restrictions imposed by President Donald Trump’s September 24 proclamation, often known as the “travel ban.” The proclamation limits the entry into the United States of nationals from eight countries – Iran, Libya, Yemen, Somalia and Syria […]

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Justices allow full travel ban to go into effect while government appeals

This afternoon the Supreme Court granted the federal government’s request to allow it to enforce the full set of restrictions imposed by President Donald Trump’s September 24 proclamation, often known as the “travel ban.” The proclamation limits the entry into the United States of nationals from eight countries – Iran, Libya, Yemen, Somalia and Syria (all of which were covered by an earlier order, issued on March 6), along with North Korea, Venezuela and Chad (which were not covered by the March 6 order). A federal court in Hawaii blocked the government from implementing the September 24 order, while a federal judge in Maryland barred the government from enforcing the order with respect to nationals of affected countries who can claim to have a genuine relationship with a person or institution in the United States. The U.S. Court of Appeals for the 9th Circuit imposed a similar freeze on the order while the government appeals the Hawaii judge’s ruling, but that didn’t go far enough for the federal government, which went to the Supreme Court last month seeking to implement the entire ban.

Today the justices agreed to the federal government’s request. In two brief orders (available here and here), the court permitted the Trump administration to enforce the September 24 order while the courts of appeals consider the government’s appeals and, if necessary, during review in the Supreme Court. In doing so, the justices went further than they had in June, when they carved out the same kind of exception to the March 6 order that the lower courts imposed in this case – for travelers who can claim a relationship with the United States. In its most recent filings, the Trump administration had argued that the September 24 order is different from its predecessors not only because of the “extensive worldwide review process” that led to its creation, but also because it applies to countries where Muslims are not a majority, while removing some majority-Muslim countries from earlier lists. Although the challenges are still in a preliminary stage of litigation, today’s orders nonetheless bode well for the Trump administration by suggesting that its arguments may have gained some traction on the court.

The 9th Circuit is scheduled to hear oral argument on Wednesday, with oral argument to follow in the 4th Circuit on Friday. In a sentence that seemed to express a warning rather than simply optimism, the justices observed that, because each court had agreed to expedite the government’s appeal, “we expect that the Court of Appeals will render its decision with appropriate dispatch.”

The orders indicated that Justices Ruth Bader Ginsburg and Sonia Sotomayor would have denied the government’s request.

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Argument analysis: Justices seem to side with state on sports betting

Argument analysis: Justices seem to side with state on sports bettingThe Supreme Court heard oral argument today in New Jersey’s challenge to a 1992 federal law that bars states from allowing sports gambling. New Jersey and members of the state’s horse-racing industry told the justices that the law violates the Constitution, which the Supreme Court has interpreted to prohibit the federal government from “commandeering” the […]

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Argument analysis: Justices seem to side with state on sports betting

The Supreme Court heard oral argument today in New Jersey’s challenge to a 1992 federal law that bars states from allowing sports gambling. New Jersey and members of the state’s horse-racing industry told the justices that the law violates the Constitution, which the Supreme Court has interpreted to prohibit the federal government from “commandeering” the states into enforcing federal law. The National Collegiate Athletic Association and the four professional sports leagues countered that the law is perfectly constitutional, because it doesn’t require the states to do anything; it simply bars them from authorizing sports gambling. After an hour of spirited debate today, a majority of the justices seemed inclined to agree with New Jersey. The court’s ruling could have implications not only for sports betting, but also for everything from state laws decriminalizing marijuana to physician-assisted suicide and self-driving cars.

Ted Olson at lectern for respondents, Gov. Chris Christie seated in left foreground (Art Lien)

The law before the court is the Professional and Amateur Sports Protection Act, which Congress passed in 1992. PASPA bans sports gambling in all but four states – Delaware, Montana, Nevada and Oregon – that already permitted it, and it would also have allowed sports betting at casinos in New Jersey as long as the state set up the scheme within one year after PASPA went into effect. New Jersey didn’t act then to establish a sports-betting program, but it changed its mind in 2012, when it passed a law legalizing sports betting.

The NCAA and the four major professional sports leagues – the National Basketball Association, the National Football League, the National Hockey League and Major League Baseball – challenged the 2012 law, arguing that it violated PASPA. Federal courts sided with the NCAA and the leagues, rejecting the state’s argument that PASPA violates the 10th Amendment on the ground that the law does not require the states to do anything. After those rulings, the New Jersey legislature tried again, with a new law: Instead of authorizing sports betting, the 2014 law repealed existing bans on sports betting, at least as they applied to New Jersey casinos and racetracks. But the NCAA and the leagues challenged the new law, and the U.S. Court of Appeals for the 3rd Circuit once again ruled in their favor and invalidated it.

With its governor, Chris Christie, in attendance today at the Supreme Court, New Jersey seemed to find a more sympathetic audience in the justices. Representing the state, attorney Ted Olson stressed that the Founding Fathers had wanted to replace the failed confederacy of states with a national government that would regulate people, but not states. But despite that intent, he emphasized, PASPA is a “direct command” to the states.

Some of the court’s more liberal justices were skeptical, comparing PASPA’s effect with the well-established doctrine of pre-emption, in which federal laws trump conflicting state laws. Olson countered that the federal government could opt to regulate sports betting itself, which would supersede state laws like New Jersey’s. But Congress hasn’t done so here, Olson noted. Instead, PASPA simply tells the states what to do – which violates the Constitution.

Justice Elena Kagan was unconvinced. You are suggesting, she told Olson, that Congress can only pre-empt state laws if it enacts a comprehensive regulatory scheme. But how, she asked, do we know when the scheme is sufficiently detailed?

Kagan also had questions about Olson’s efforts to rely on the Supreme Court’s earlier cases on the 10th Amendment and the anti-commandeering doctrine. If the gist of those cases is that the federal government can’t conscript state officials to do its work, she said, whom is PASPA “conscripting”?

Olson responded that PASPA tells New Jersey that it cannot regulate sports gambling the way it would otherwise choose to do. But Justice Sonia Sotomayor was dubious that PASPA requires the states to act. The law doesn’t tell the state that it has to enforce PASPA, she pointed out. “States make choices all the time” about what laws to enforce, she suggested; if they tried to enforce all of their laws all the time, they would go bankrupt.

Paul D. Clement for respondents (Art Lien)

Justice Anthony Kennedy was more receptive to this argument. He told Paul Clement, who argued on behalf of the NCAA and the leagues, that PASPA “leaves in place a state law that the state does not want, so the citizens of the State of New Jersey are bound to obey a law that the state does not want but that the federal government compels the state to have.” That’s commandeering, Kennedy said.

A few minutes later, in response to a hypothetical question from Chief Justice John Roberts about whether the federal government could order the states to reduce their expenditures on state pension benefits, Kennedy complained that such a scenario “blurs political accountability” because citizens don’t know whether the policy is coming from the federal or state government. “That’s precisely what federalism is designed to prevent,” Kennedy concluded.

Roberts chimed in, pointing out that if Congress wanted to impose a flat ban on sports gambling, it could have done so itself and included a clause that specifically indicated that conflicting state laws are pre-empted. Justice Samuel Alito echoed this sentiment, telling Clement that “Congress could have prohibited sports gambling itself.” “So what federal policy is served” by PASPA, Alito asked Clement, that would not have been served by a congressional ban?

Justice Neil Gorsuch added that enacting a law like PASPA, which would require the states to enforce the ban on sports gambling, would be cheaper than a federal ban because it would not require the federal government to spend any money of its own.

Perhaps most crucially for New Jersey, Justice Stephen Breyer pressed Clement to explain Congress’ goal in enacting PASPA. When Clement responded that Congress wanted to eliminate “state-sponsored or -operated gambling taking place by either individuals or the state,” Breyer pounced. That means, he observed, “there is no interstate policy other than the interstate policy of telling the states what to do.”

Arguing for the United States in support of the NCAA and the sports leagues, Deputy Solicitor General Jeffrey Wall tried to offer the justices a way around a potentially sticky constitutional problem. Here, he said, even though New Jersey characterized its 2014 law as a repeal of existing state laws regulating sports betting, the law actually authorized sports betting, in the sense that it only allowed sports betting at 12 specific casinos and racetracks in the state.

But that response got him into hot water with Roberts, after Wall responded “yes” to a question about whether New Jersey could repeal all existing state laws, “across the board, no exceptions.” “You have no problem at all and anyone can engage in any kind of gambling they want” – including a 12-year-old going to a casino? Roberts asked incredulously.

The argument continued for a few minutes more, but that exchange may have been enough for at least five justices. A decision in the case is expected by summer.

This post was originally published at Howe on the Court.

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Trump administration asks Supreme Court to intervene in DACA document dispute

Trump administration asks Supreme Court to intervene in DACA document disputeLast night the federal government asked the Supreme Court to step into a dispute over documents related to the Trump administration’s decision to end the policy known as Deferred Action for Child Arrivals – a Obama-administration program that allowed undocumented immigrants who came to the United States as children to apply for protection from deportation. […]

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Trump administration asks Supreme Court to intervene in DACA document dispute

Last night the federal government asked the Supreme Court to step into a dispute over documents related to the Trump administration’s decision to end the policy known as Deferred Action for Child Arrivals – a Obama-administration program that allowed undocumented immigrants who came to the United States as children to apply for protection from deportation. In an emergency filing, the government asked the court to block a set of orders issued by a federal court in northern California that would require the federal government to review (and potentially turn over) “hundreds of thousands of documents,” some of them privileged.

The orders came in litigation challenging the decision to terminate DACA. The district court ruled that the documents that the government submitted during discovery were not enough, and that the Trump administration should also have submitted documents from the White House and the Department of Justice, as well as additional documents from the Department of Homeland Security. The district court later instructed the government to “be ready to file” a complete set of documents by December 22.

In last night’s filing, the Trump administration emphasized that the lower court’s view of what records the government needs to provide is simply wrong – particularly because the government’s decision to end the DACA program falls squarely within its discretion. Moreover, it added, complying with the district court’s orders will “impair the performance of other essential DHS and DOJ functions.” “DHS estimates,” the government stressed, that “it would take at least 2,000 hours to respond to pending document requests alone.”

Late last night Justice Anthony Kennedy, who handles emergency requests from the 9th Circuit, called for a response to the government’s filing by 4 p.m. on Wednesday, December 6.

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Court grants review in state-action immunity case

Court grants review in state-action immunity caseThis afternoon the Supreme Court issued an initial order list from today’s conference. The justices added one new case to their merits docket for the term: Salt River Project Agricultural Improvement and Power District v. SolarCity Corp., in which they will decide a technical but important question: When can a state or local government appeal […]

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Court grants review in state-action immunity case

This afternoon the Supreme Court issued an initial order list from today’s conference. The justices added one new case to their merits docket for the term: Salt River Project Agricultural Improvement and Power District v. SolarCity Corp., in which they will decide a technical but important question: When can a state or local government appeal the denial of a motion to dismiss based on state-action immunity?

The plaintiff in the case now before the Supreme Court is SolarCity, a subsidiary of electric-car maker Tesla that makes, sells and installs solar panels. SolarCity filed a lawsuit in federal court against the power district, which is located near Phoenix, Arizona, and is a political subdivision of the state. The company alleged that the district (which is the only supplier of traditional electric power in the area) had changed its rates to put SolarCity at a disadvantage – specifically, by imposing a large penalty on customers who get power from their own systems. That change, SolarCity contends, led to a dramatic drop in orders for new solar-panel systems in the district. The power district moved to dismiss the case, arguing that it cannot be sued under federal antitrust law because Arizona law gives it the authority to set prices – a doctrine known as “state-action immunity.”

When the trial court denied its motion, the power district tried to take its case to the U.S. Court of Appeals for the 9th Circuit. But that court declined to review the appeal. As a general rule, you can only appeal from a “final” judgment against you. One narrow exception to that general rule is known as the “collateral-order doctrine,” which (among other things) applies to orders denying some kinds of immunity – for example, absolute and qualified immunity for government officials and sovereign immunity for foreign countries and Indian tribes. However, the 9th Circuit ruled, the collateral-order doctrine does not extend to the denials of motions to dismiss based on state-action immunity, because the latter doctrine only provides immunity from liability; it does not immunize a state or local government from being sued at all. The power district asked the Supreme Court to review that ruling, and today the justices agreed to do so. The case is likely to be heard early next year and decided by the end of June.

The justices are expected to issue more orders from today’s conference on Monday morning at 9:30 am. They have not yet acted on the federal government’s request to allow it to fully enforce President Donald Trump’s September 24 proclamation, often described as the most recent version of the administration’s “travel ban,” while challenges to the ban are pending in two federal courts of appeals.

This post was originally published at Howe on the Court.

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