Editor's Note :

Editor's Note :

On Monday we expect the Court to issue orders from the June 23 Conference at 9:30 a.m. and opinions in one or more argued cases at 10 a.m. We will begin live-blogging at 9 a.m.
The blog is hosting a symposium on the Court's opinion in Fisher v. University of Texas at Austin.
The blog is also hosting a symposium on the Court's ruling in United States v. Texas.

Kimberly West-Faulcon is the author of amicus briefs in Fisher I and Fisher II. She teaches constitutional law at Loyola Law School in Los Angeles, where she holds the endowed James P. Bradley Chair in Constitutional Law.

Yesterday’s decision in Fisher v. University of Texas at Austin marks the first time Justice Anthony Kennedy has ruled in favor of a racial affirmative action policy in the twenty-eight years he has served on the Supreme Court. Unwilling to sound the death knell on racial affirmative action in higher education, Kennedy ventured down a path he had never taken before. He upheld the race-conscious component of the University of Texas at Austin’s admissions policy as satisfying the stringent strict-scrutiny standard of review. Instead of siding with rejected white applicant Abigail Fisher or ruling that affirmative action is per se unconstitutional as Fisher’s lawyers contended, Kennedy upheld the policy Fisher challenged as unconstitutional despite an oft-articulated constitutional aversion to race consciousness.

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Ernest A. Young holds the Alston & Bird Chair at Duke Law School.

It’s safe to say that the Supreme Court’s one-line per curiam opinion today in United States v. Texas – “[t]he judgment is affirmed by an equally divided Court” – will not go down in history as one of the Court’s landmark opinions. Without even a separate concurrence or dissent to sink one’s teeth into, one can expect much of the commentary simply to repeat positions taken earlier. Although I participated in the case by drafting an amicus brief for public law scholars supporting Texas’s standing to sue, I will try not to rehash that brief’s arguments here. Instead, I want to make three more limited points.

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Jonathan H. Adler is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law. His book, Business and the Roberts Court, is forthcoming this summer from Oxford University Press. He is a regular contributor to the popular legal blog The Volokh ConspiracyHe participated in brief amicus curiae of law professors supporting the claim that Texas had standing to challenge the Obama administration’s actions, but taking no position on the substantive merits of the case.

Many had hoped the Supreme Court would resolve the fight over the Obama administration’s controversial immigration reforms and, in the process, bring clarity to the broader debate over the scope of executive authority. It was not to be. Instead, on the penultimate day releasing opinions, the Court confessed its inability to resolve the case, affirming the U.S. Court of Appeals for the Fifth Circuit by an equally divided vote.

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Amanda Frost is a Professor of Law at American University, where she specializes in constitutional law, immigration law, civil procedure, and the federal court system and federal jurisdiction.

United States v. Texas raised major questions about the scope of the president’s power to exercise discretion when enforcing immigration law. But even more important was the threshold issue of whether the states had standing to sue. Although the one-sentence affirmance by an equally divided Court doesn’t tell us much, we now know that at least four Justices thought Texas had standing to bring this case. The result may be even more lawsuits by state attorneys general who decide they want to bring their disagreements with the federal government to the courts rather than the ballot box.

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Petition of the day

By on Jun 23, 2016 at 11:12 pm

The petition of the day is:


Issue: Whether, in a class action settlement providing injunctive relief not authorized by statute and releasing or impairing the money-damages claims of absent or objecting members, class certification under Federal Rule of Civil Procedure 23(b)(2) and the denial of the right to opt out as to the damages claims violate Rule 23 or the Due Process Clause of the Fifth Amendment.

Menu of today’s posts

By on Jun 23, 2016 at 9:23 pm

This morning the Court issued three opinions in argued cases:

  • Mathis v. United States, holding that the use of state convictions to impose enhanced federal sentences under the Armed Career Criminal Act depends on whether the elements of the state offense match a generic covered offense;
  • Birchfield v. North Dakota, holding that the Fourth Amendment permits the government to require breath tests (but not blood tests) without a warrant when making a DUI arrest; and
  • Fisher v. University of Texas at Austin, holding that the race-conscious admissions program in use when Abigail Fisher applied to the university is lawful under the Equal Protection Clause.

The Court also affirmed by an equally divided Court in two cases: United States v. Texas and Dollar General Corporation v. Mississippi Band of Choctaw IndiansMark Walsh provided a “view” from the Courtroom.

Lyle reported on the decisions in Fisher and United States v. Texas, and Amy on the decision in Birchfield.

Molly Runkle rounded up early coverage on the decision in Fisher and in Texas (and more).

Evan Lee will report on the decision in Mathis, and Ed Gehres on the decision in Dollar General.

We are also hosting two symposia, on the rulings in Fisher and United States v. Texas. The contributions to those symposia are available here and here, respectively.

Posted in Everything Else

Richard D. Kahlenberg, a senior fellow at The Century Foundation, is author of The Remedy: Class, Race, and Affirmative Action, and the editor of The Future of Affirmative Action: New Paths to Higher Education Diversity after Fisher v. University of Texas.

Today’s decision in Fisher v. University of Texas at Austin supporting racial preferences at the University of Texas at Austin by a four-to-three margin was a shocker. As Justice Samuel Alito noted in dissent, “Something strange has happened since our prior decision in this case.”

In the Court’s first decision in the case, in 2013 Justice Anthony Kennedy tightened the screws on racial affirmative action policies, declaring that universities bear “the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.” The Court supported the goal of racial diversity but appeared to push colleges to employ alternative means – such as providing a leg up to economically disadvantaged students of all races – before resorting to race per se. The Fisher I Court emphasized that universities would receive “no deference” on the question of whether the use of race is “necessary” to achieve the educational benefits of diversity.

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This morning the Court issued a per curiam opinion in United States v. Texas, affirming by an equally divided Court the Fifth Circuit’s decision blocking the implementation of the Obama administration’s deferred-action policy for some undocumented immigrants.  Lyle Denniston covered the ruling for this blog. Other early coverage comes from Eyder Peralta of NPR, Mark Walsh of Education Week, Pete Williams of NBC News, Lydia Wheeler and Jordan Fabian of The Hill, Ariane de Vogue and Tal Kopan of CNN, Adam Liptak and Michael Shear of The New York Times, Lawrence Hurley of Reuters, Richard Wolf of USA Today, Jess Bravin of The Wall Street Journal, Robert Barnes and William Branigin of The Washington Post, David G. Savage of the Los Angeles Times, Mark Sherman of the Associated Press, Chris Geidner of BuzzFeed, Josh Gerstein of Politico, Greg Stohr of Bloomberg, Cristian Farias of The Huffington Post, Debra Cassens Weiss of ABA Journal, and Bill Mears of Fox News.

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Posted in Round-up

Symposium: From here, where to?

By on Jun 23, 2016 at 6:25 pm

Gabriel J. Chin is Martin Luther King Jr. Professor of Law at UC Davis School of Law.

As is customary, the Court’s per curiam affirmance of the Fifth Circuit by an equally divided court was a one-line opinion. Although the ruling means that the injunction against DAPA remains in place, the case is some distance from being over.

What was at issue was the propriety of a preliminary injunction.   As the Court held in University of Texas v. Camenisch, “where a federal district court has granted a preliminary injunction, the parties generally will have had the benefit neither of a full opportunity to present their cases nor of a final judicial decision based on the actual merits of the controversy.”

Thus, the states and the United States now head to trial. To be sure, in cases like this where most of the issues are purely legal rather than factual, it is likely that “the preliminary injunction was ‘the whole ball game,’ and [the lower courts’] analysis of the propriety of preliminary relief is applicable to any permanent injunction as well.”

But the Fifth Circuit’s injunction purported to apply nationwide. If, technically, the Court had affirmed the issuance of a permanent injunction, DAPA might well be dead, and this administration or another might well have to start from square one: Design and prepare for a new judicial test of a new plan, with all of the delay that would entail.

There are other long-shot alternatives. Perhaps the administration could go to district courts in the D.C., Second, or Ninth Circuit, seeking a declaration that the writ of a district court judge from Texas does not extend from sea to shining sea. But even if that would eventually work, it would take time. The administration probably should revise the policy guidance to remove the words which turned out to be a flashpoint, “lawfully present”; immigration specialists understand that lawful presence means, roughly, “likely unlawfully present, but tolerated by the Attorney General.” That subtlety turned out to be very hard to explain.

It is possible, though, that the Court missed an opportunity here to give some guidance. To be sure, most four-four affirmances are unexplained. They date back at least to The Antelope, a nightmarish 1825 case dealing with claims to possession of enslaved persons seized from a foreign vessel. Chief Justice Marshall explained:

Whether, on this proof, Africans brought into the United States, under the various circumstances belonging to this case, ought to be restored or not, is a question on which much difficulty has been felt. It is unnecessary to state the reasons in support of the affirmative or negative answer to it, because the Court is divided on it, and, consequently, no principle is settled. So much of the decree of the Circuit Court as directs restitution to the Spanish claimant of the Africans found on board the Antelope . . . is affirmed.

But The Antelope was not a one-liner.

In United States v. Texas, was there nothing upon which five or more Justices could agree? This case affects, potentially, the ability of millions of people to move out of the shadows, as well as the right of the president to exercise his authority to enforce the law. If so, there is precedent for affirming some piece of the case by an equally divided court, while issuing merits rulings on other questions. Thus, in American Electric Power Co. v. Connecticut, the Court was stymied on standing, but addressed other issues implicated in a lawsuit by states against carbon dioxide emitters. In United States v. Zolin, the Court was equally divided on the power of district courts to conditionally enforce IRS subpoenas, by imposing dissemination restrictions, but evaluated other aspects of their enforcement.

There is also an interesting, although dated, history of rehearings leading to a reversal of fortune. One would think that affirmance by an equally divided Court would come only after the Justices explored and rejected all other options, including ordering further briefing, reargument, holding a case over to the next Term – or doing more to persuade colleagues on the other side who had not yet seen the light. But four-four decisions do not necessarily represent true deadlocks. In Halliburton Oil Well Cementing Co. v. Walker, a patent case, an equally divided court affirmed in January 1946. The Court granted rehearing, and in November 1946, reversed with only Justice Harold Burton dissenting.

Similarly, in January, 1938, an equally divided court affirmed in Railroad Commission of California v. Pacific Gas & Elec. Co., a utility rate case, with Justice George Sutherland not participating. But after Justice Hugo Black replaced Willis Van Devanter, the Court reversed, six to two.. By my count, at least one of Brandeis, Cardozo, Hughes, Stone, or, of course, Owen Roberts, had to have switched sides.

A potentially promising case for the United States is Indian Towing Co. v. United States,, a reversal initially affirmed by an equally divided court with Justice John Marshall Harlan II not participating. Harlan had been a member of the Court at the time of the initial decision, but sat out, perhaps because he had not heard oral argument. He turned out to be the deciding vote in the ultimate five-four decision. Thus, any movement toward the seating of a replacement for Justice Antonin Scalia might warrant rehearing.

On what I assume to be the merits, I remain puzzled. No one claims that the administration – the leading deporter in U.S. history – has failed to expend all available resources in carrying out the immigration laws. The issue is limited to the exercise of prosecutorial discretion.

There also seems to be no dispute that any given agency can permissibly issue: (1) legally binding guidance, which must go through APA notice and comment, (2) general, non-binding policy guidance, creating no enforceable rights, which need not go through notice and comment, or (3) no guidance, leaving it to individual officers and agents in the field to indulge their personal policy preferences. In “a government of laws, not of people,” option 3 would seem to be, by some distance, the least desirable.

The argument was that DAPA, drawing on the history of DACA, purported to be permissible non-binding category 2 guidance, but really was binding category 1 law, because it was likely to be followed in almost all cases. This argument seems silly. Sometimes, policy guidance is so sensible (e.g., “FBI Agents: Prioritize anti-terrorism investigations over investigations of people smoking marijuana in public”) that it will be nearly universally followed. Even so, the guidance could provide (as DAPA does), and courts should decide, that it creates no enforceable rights, and does not constrain the exercise of case-by-case discretion, if, in the view of the agency, there are reasons to depart from it. It is startling to see a case decided by courts based on the reasoning that government officials creating, understanding, and applying policy coherently and consistently is so unusual that something nefarious must be afoot.

This morning the Court issued its opinion in Fisher v. University of Texas at Austin, holding by a vote of four to three that the race-conscious admissions program in use when Abigail Fisher applied to the university is lawful under the Equal Protection Clause.  Lyle Denniston covered the opinion for this blog. Other early coverage of the opinion comes from Eyder Peralta of NPR, Pete Williams of NBC News, Lydia Wheeler of The Hill, Ariane de Vogue of CNN (who focuses on Justice Kennedy’s views on affirmative action in a second post), Adam Liptak of The New York Times, Lawrence Hurley of Reuters, Richard Wolf of USA Today, Jess Bravin and Brent Kendall of The Wall Street Journal, Jacob Gershman of The Wall Street Journal, Robert Barnes of The Washington Post, David G. Savage and Molly Hennessy-Fiske of the Los Angeles Times, Mark Sherman of the Associated Press, Chris Geidner of Buzzfeed, Josh Gerstein and Kimberly Hefling of Politico, Greg Stohr of Bloomberg, Cristian Farias of Huffington Post, Debra Cassens Weiss of ABA Journal, Bill Mears of Fox News, Mark Walsh of Education Week, and Daniel Fisher of Forbes.

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