Seven months after an Arizona inmate asked the Supreme Court to review the constitutionality of the death penalty itself, the court today declined to do so. The order denying certiorari in the case of Abel Hidalgo, who shot and killed two men as part of a murder-for-hire scheme in 2000, was accompanied by a 10-page statement by Justice Stephen Breyer, who was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. But Breyer’s statement focused on the second question raised by Hidalgo, who argued that the scheme that Arizona used to sentence him to death does not, as the Supreme Court has required, “genuinely narrow the class of persons eligible for the death penalty.”

Although 99 percent of first-degree murders in Arizona are eligible for the death penalty, Hidalgo contended, the Arizona Supreme Court ruled that the state’s scheme does not violate the Constitution because the necessary narrowing can be achieved in other ways – specifically, through the discretion given to prosecutors and the individual aggravating factors themselves. Breyer agreed with Hidalgo that “the Arizona Supreme Court misapplied our precedent,” but he nonetheless approved of the U.S. Supreme Court’s decision to deny review. Breyer explained that Hidalgo’s evidence regarding eligibility for the death penalty in Arizona was “unrebutted” and even “points to a possible constitutional problem.” But, he continued, because Hidalgo was not allowed to develop this evidence at a hearing in the lower court, the record now before the justices “is limited and largely unexamined by experts and the courts below in the first instance.” If another defendant develops empirical evidence on this question in the future, he concluded, that case will be “better suited for certiorari.”

The ruling in Hidalgo’s case was not the only significant denial of review among today’s orders. The justices also turned down Garco Construction, Inc. v. Secretary of the Army, a case arising out of a dispute between the federal government and a subcontractor on an Air Force housing project in Montana. Although it sounds relatively esoteric, the legal issue at the heart of the case is quite significant in administrative law: whether the Supreme Court’s decisions in Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins should be overruled. As this blog’s John Elwood has explained, those cases “stand for the proposition that courts must defer to an agency’s interpretation of its own ambiguous regulation unless that interpretation is plainly erroneous or inconsistent with the regulation.” The court’s decision in Auer is just a little over two decades old, but it has been the target of considerable criticism in recent years – including from the late Justice Antonin Scalia, the author of the ruling. Critics argue that the doctrine grants too much latitude to agencies, giving them the opportunity to become both the drafter and arbiter of their rules, and provides them with an incentive to issue regulations that are deliberately vague. Moreover, the critics add, the doctrine means that individuals or entities who are subject to regulations may not have enough notice about what they are or are not allowed to do.

Justice Clarence Thomas dissented from today’s denial of review, joined by the court’s newest justice, Neil Gorsuch. In a three-and-a-half-page opinion, Thomas argued that such deference to agencies is “constitutionally suspect” and “on its last gasp.” Garco’s case, he continued, “would have been an ideal case to reconsider” the doctrine. But because the Supreme Court “has passed up another opportunity to remedy ‘precisely the accumulation of governmental powers that the Framers warned against,’” Thomas “respectfully” dissented.

The justices once again did not act on Azar v. Garza, in which the federal government has asked them to nullify a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that cleared the way for a pregnant teenager to obtain an abortion. The court considered the case at several conferences before asking the lower courts to send it the record in the case in late February. The justices could of course still grant the government’s petition for review, but the more likely scenario at this point – particularly given the request for the record – is that a justice is writing an opinion regarding the denial of review.

The justices today added one new case to their merits docket for the 2018 term: Nielsen v. Preap, which asks what happens to a noncitizen who is released from criminal custody but not immediately taken into custody by immigration officials. The case had been on hold since late September, waiting for the justices to rule on another immigration case argued in early October. The justices issued that ruling late last month, holding in Jennings v. Rodriguez that the Immigration and Nationality Act does not give noncitizens who have been detained the right to periodic bond hearings.

The ruling in Jennings cleared the way for the justices to once again consider the government’s petition in Preap, which centers on the interpretation of a federal law that instructs the Department of Homeland Security to take noncitizens who are convicted of certain crimes into custody and hold them until proceedings to deport them can be conducted. The first paragraph of the provision contains a list of the kinds of offenses that subject a noncitizen to immigration detention. That list is followed by a clause indicating that the noncitizen should be taken into immigration custody when he is released from prison. The second paragraph of the provision creates a narrow exemption from immigration custody – involving witness protection – that is not at play in this case.

The Board of Immigration Appeals, which handles appeals from immigration courts, has interpreted the law to describe which noncitizens convicted of crimes should be held by DHS after they are released from criminal custody. The law does not mean, the BIA says, that a noncitizen who is convicted of one of the offenses described in the first paragraph is exempt from mandatory detention if DHS does not pick him up immediately after he is released from prison. But a group of noncitizens have read the law differently, arguing that the mandatory detention provision applies only to noncitizens whom DHS takes into custody upon their release from prison.

After the U.S. Court of Appeals for the 9th Circuit agreed with the noncitizens, the federal government asked the Supreme Court to weigh in. In its petition for certiorari, the government contended that the appeals court’s ruling “has created a circuit conflict on an important and recurring issue of federal law.” Indeed, the government noted, even the 9th Circuit acknowledged that four other federal appeals courts had reached a contrary interpretation. And, the government adds, the 9th Circuit’s decision is wrong: Even if the law is ambiguous – about which the government is skeptical – the 9th Circuit should have deferred to the BIA’s interpretation.

The noncitizens urged the justices not to intervene at this point, but today the justices rejected that plea and announced that they would take the case, which will likely be argued in the fall.

The justices also asked the U.S. solicitor general to file a brief providing the federal government’s views in Pioneer Centres Holding v. Alerus Financial, a case involving the interpretation of the Employee Retirement Income Security Act. There is no deadline for the solicitor general to file his brief.

The justices will meet again for another private conference on Friday.

This post was originally published at Howe on the Court

Posted in Nielsen v. Preap, Hidalgo v. Arizona, Azar v. Garza, Garco Construction Inc. v. Secretary of the Army, Featured, What's Happening Now

Recommended Citation: Amy Howe, Justices decline to weigh in on constitutionality of death penalty, SCOTUSblog (Mar. 19, 2018, 12:50 PM), http://www.scotusblog.com/2018/03/justices-decline-weigh-constitutionality-death-penalty/