Thursday round-up

By on Jul 20, 2017 at 7:30 am

Yesterday the Supreme Court left in place a district judge’s ruling allowing entry into the United States by close relatives of people in the U.S., such as grandparents, but put a hold on the portion of the judge’s order that loosened the government’s restrictions on entry by refugees, pending disposition of the government’s appeal by the U.S. Court of Appeals for the 9th Circuit. Amy Howe covers the Supreme Court’s order for this blog. Additional coverage comes from Brent Kendall at The Wall Street Journal, Josh Gerstein at Politico, Adam Liptak in The New York Times, Richard Wolf at USA Today, Robert Barnes in The Washington Post, Greg Stohr at Bloomberg, Lyle Denniston at his eponymous blog, Lawrence Hurley at Reuters, Pete Williams at NBC News, Ariane de Vogue at CNN, and Gary Gately at Talk Media News. In The Economist, Steven Mazie observes that the “paper-and-ink volley” in the parties’ briefs was not “fought in polite, lawyerly terms.” At Take Care, Joshua Matz argues that “[t]he Supreme Court is now a co-owner and co-author of the travel ban,” and that “with that position comes major institutional risk to the Supreme Court’s public legitimacy.”

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Court releases October calendar

By on Jul 19, 2017 at 9:59 pm

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.

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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.

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Petitions of the day

By on Jul 19, 2017 at 11:38 am

The petitions of the day are:

16-1406

Issues: (1) Whether the U.S. Court of Appeals for the 7th Circuit’s en banc majority opinion substantially departed from the Supreme Court’s precedents established by Monell v. Department of Social Services by authorizing the imposition of corporate liability on a prison medical provider under 42 U.S.C. § 1983 and the Eighth Amendment without requiring any evidence of either culpability for deliberate indifference on the part of the provider, or any causal connection between the provider’s alleged failure to implement the policy and the deprivation of federal rights; and (2) whether the U.S. Court of the Appeals for the 7th Circuit’s en banc majority opinion and its reliance on cases from the U.S. Court of Appeals for the 9th and 3rd Circuits, which deviate from the requirements of all other federal appellate courts on the standard of municipal liability under 42 U.S.C. § 1983 and the Eighth Amendment, as established by Monell, justifies review by the Supreme Court to reconcile those authorities and clarify that standard.

16-1454

Issue: Whether, under the “rule of reason,” the Government’s showing that American Express’s anti-steering provisions stifle price competition on the merchant side of the credit card platform suffices to prove anti-competitive effects and thereby shifts the burden of establishing any procompetitive benefits from the provisions to American Express.

Wednesday round-up

By on Jul 19, 2017 at 7:35 am

Yesterday, Hawaii filed its response to the government’s request that the Supreme Court clarify its June 26 order partially reinstating the administration’s executive order on immigration, and the government filed a reply. Amy Howe covers these developments for this blog. Additional coverage comes from Lawrence Hurley at Reuters and Lyle Denniston at his eponymous blog, who reports that the state argued “that the current phase of that dispute should play out first in a lower appeals court.”  Subscript provides a graphic explainer of the travel-ban cases. At Just Security, Marty Lederman disputes the government’s contention in its reply brief that the connection between a foreign national and a United States person or entity “must be ‘substantial,’” calling “[t]hat adjective … a limitation of the SG’s own creation, one not found in the Court’s opinion.”

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(UPDATED: This post has been updated to include the government’s reply to Hawaii’s opposition, filed on Tuesday night.)

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.

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Petitions of the day

By on Jul 18, 2017 at 11:28 am

The petitions of the day are:

16-1323

Issue: Whether Rule 16-308(E) of the New Mexico Rules of Professional Conduct is pre-empted with respect to federal prosecutors in the context of grand jury proceedings.

16-1450

Issue: Whether the U.S. Court of Appeals for the 10th Circuit erred in holding that New Mexico Rule of Professional Conduct 16-308(E)—which states that a prosecutor shall not “subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present clients unless the prosecutor reasonably believes,” among other things, that “the evidence sought is essential to the successful completion of an ongoing investigation or prosecution” and that “there is no other feasible alternative to obtain the information”—may be applied to federal prosecutors serving subpoenas outside the grand jury context.

Tuesday round-up

By on Jul 18, 2017 at 7:29 am

At Education Week’s School Law Blog, Mark Walsh reports that when Justice Neil Gorsuch filled in yesterday for Justice Anthony Kennedy at the annual conference of the U.S. Court of Appeals for the 9th Circuit, Gorsuch “joined the list of his colleagues—both current and retired justices—who have taken up the cause of improving civics education.” At the Associated Press, Sudhin Thanawala reports that Gorsuch “couldn’t escape discussion of the president’s travel ban — and even the president” at the conference, “where a student essay winner compared the ban to Japanese internment and the producer of the musical ‘Hamilton’ said the cast was scared following Trump’s election victory.”

In The New York Times, Adam Liptak reports that “[g]ay rights groups hope to score one more victory” before Justice Anthony Kennedy leaves the court, and that the “goal this time is nationwide protection against employment discrimination.” In The Washington Post, Robert Barnes reports that a Supreme Court ruling at the end of last term has engendered speculation about whether “Chief Justice John G. Roberts Jr. [has] embraced the court’s same-sex marriage decision that he so passionately protested two years ago.” At the New Civil Rights Movement, David Badash discusses a cert petition filed on behalf of “a Washington state florist who refused to … provide a floral arrangement for a same-sex couple’s wedding.”

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Petitions of the day

By on Jul 17, 2017 at 11:22 am

The petitions of the day are:

16-1362

Issue: Whether service advisors at car dealerships are exempt under 29 U.S.C. § 213(b)(10)(A) from the Fair Labor Standards Act’s overtime-pay requirements.

16-1386

Issue: Whether a plaintiff who has been retaliated against under 29 U.S.C. § 623(d) of the Age Discrimination in Employment Act is able to seek compensatory and punitive damages as potential remedies for her claim.

 

Should judges rely on a president’s public pronouncements to resolve cases? Cardozo Law School professor Kate Shaw has authored the first article systematically addressing the role that a president’s statements should play in court. The topic is timely: The U.S. Courts of Appeals for both the 4th and 9th Circuits faced that question when addressing challenges to the Trump administration’s travel ban, and the Supreme Court will have to do so as well when it reviews those decisions this fall.

The issue is not new. As Shaw explains, courts have relied on presidents’ statements to decide a host of legal questions in recent years. For example, a California district court relied on a statement in one of President Barack Obama’s speeches to conclude that the military’s Don’t Ask, Don’t Tell policy did not protect national security, despite contrary assertions in government briefs. Likewise, a Texas district court cited Obama’s statements to support the conclusion that granting deferred action to millions of unauthorized immigrants violated the Administrative Procedure Act. Today, President Donald Trump’s campaign statements, speeches and press appearances have played a central role in litigation challenging the legality of the travel ban, even as government attorneys argue that those statements should be given no weight. (Shaw made the interesting choice to focus her article on presidents’ spoken words, and thus she does not address whether courts should give any weight to Trump’s tweets.)

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