Both sides of the dispute over President Donald Trump’s March 6 executive order weighed in on the future of the challenges today. In filings with the Supreme Court, the federal government urged the justices to dismiss the case as moot – that is, no longer a live dispute – while the challengers told the court that it should continue to hear the case.

Today’s filings came in response to an order issued by the court on September 25, one day after Trump issued a proclamation that restricted travel to the United States by nationals of eight countries indefinitely. The justices removed the challenges, which had been scheduled for oral argument on October 10, from their October calendar and directed the two sides to brief the question whether the disputes are now moot.

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For decades, the scope of the federal government’s regulatory authority under the Clean Water Act has been a flashpoint for debate. In 2015, the Obama administration promulgated the “Clean Water Rule,” the most recent of several attempts to define the act’s geographic scope. By defining the key statutory term “waters of the United States,” the rule determines, among other issues, which water bodies are subject to the act’s discharge limitations and permitting requirements. Over 100 parties flooded the courts with challenges to the rule, leading to a nationwide stay. In next Wednesday’s argument in National Association of Manufacturers v. Department of Defense, the Supreme Court will consider a preliminary question: Should the lawsuits challenging the rule have been filed in federal district courts, or courts of appeals? Although the Trump administration has announced its intent to withdraw the Clean Water Rule, the justices declined to stay the litigation, and the forum question remains live – with important practical and strategic implications, both in this litigation and beyond.

The case turns on a provision of the act, 33 U.S.C § 1369(b)(1), which lists seven types of actions by the Environmental Protection Agency that are reviewable directly (and exclusively) in the courts of appeals. As relevant here, the list includes actions “(E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title;” and “(F) in issuing or denying any permit under section 1342 of this title.” Does review of the Clean Water Rule fall within either Subsections (E) or (F)? The U.S. Court of Appeals for the 6th Circuit said yes (to Subsection (F)) in a divided opinion, deepening confusion in the lower courts regarding the scope of Section 1369(b)(1).

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In its conference of October 6, 2017, the court will consider petitions involving issues such as whether, when a Florida jury recommended a death sentence before the Supreme Court decided Hurst v. Florida and none of the findings required by Hurst were made, the error can be deemed harmless under Chapman v. California, or whether the recommendation simply does not amount to the jury verdict the Sixth Amendment requires; and whether a legislatively mandated permit condition is subject to scrutiny under the unconstitutional-conditions doctrine as set out in Koontz v. St. Johns River Water Management District, Dolan v. City of Tigard and Nollan v. California Coastal Commission.

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The pun seems inevitable: In Wednesday morning’s oral argument in Class v. United States, the justices held a short seminar on the implicit effect of criminal guilty pleas. In the end, Rodney Class may win a remand – but unless the Supreme Court writes carefully, the government could inadvertently prevail in a much larger controversy.

What is the “default rule” for the effect of a guilty plea?

In brief (see my preview), Class pled guilty to a federal charge of possessing “readily accessible” firearms on the grounds of the U.S. Capitol. His car, parked in a marked parking lot within walking distance of the congressional buildings in Washington, contained several lawfully owned guns. Class raised a Second Amendment challenge to the statute in a pretrial motion, which the district judge denied. Class then pled guilty to the weapons charge, in return for the government dropping a failure-to-appear charge (Class had refused to appear for his scheduled trial date and had to be arrested again.).

The written plea agreement failed to expressly waive Class’ right to appeal his conviction, even though it recited other waivers. And the district judge’s oral colloquy with Class at the time of his plea was less than clear: The judge told Class that he was giving up “your rights to appeal” or “most of your rights to appeal,” unless “there is some other fundamental defect in these guilty plea proceedings.” Class then filed an appeal presenting his Second Amendment claim that the statute is unconstitutional (as well as a claim that the statute is unconstitutionally vague, although that claim was not discussed at yesterday’s argument). But the government contended, and the court of appeals agreed, that Class’ general guilty plea must “inherently waive” even his constitutional claims.

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Worst Monday in October

By on Oct 5, 2017 at 11:05 am

John Elwood reviews what may or may not be the relists from the “long conference.”

The new term that began on Monday marks the seventh year that we have regularly wasted the time of SCOTUSblog readers with our musings on the Supreme Court’s “shadow docket.” The new term dawns during dark days. The country is so divided on basic issues that in a recent poll on the issue “Are puppies cute?,” the leading answers were “What the hell are you looking at?” and “Delete your account!” And the news only keeps getting worse. Even apart from the tragedies I avoid discussing to maintain Relist Watch’s characteristic tone of cheerful stupidity, there was lesser bad news close to the court: reporters met with salad-bar shortages and a broken fro-yo machine in the Supreme Court cafeteria (which — hat-tip — gives this post its title); a holdup in the new court reporter’s release of transcripts delayed the dissemination of important statistical information; and the revamped dockets tripped up the scraping software that pathological types (and the simply conscientious!) use to keep a close eye on the minutiae of the Supreme Court’s docket.

Speaking of which: This is the first Relist Watch we’ve compiled using data from the court’s new dockets, and the numbers of relists out of the “long conference” seem a smidge low compared to years past. So I can’t eliminate the possibility that I’ve overlooked a relist or three. Bottom line: Today’s post may not be very funny, but at least it’s not accurate.

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Thursday round-up

By on Oct 5, 2017 at 7:19 am

The justices heard two oral arguments yesterday. The first was in probable-cause and qualified-immunity case District of Columbia v. Wesby. Amy Howe has this blog’s argument analysis, which first appeared at Howe on the Court. Subscript offers a graphic explainer for the case. Coverage of the argument in Wesby comes from Richard Wolf at USA Today, who reports that “after spending the first two days of their 2017 term tackling potential landmark cases on partisan gerrymandering and workers’ rights, perhaps the justices were ready to dig into a set of facts that included booze, drugs, strippers and a hostess named ‘Peaches,’” Lawrence Hurley at Reuters, and Jessica Gresko at the Associated Press. In The Washington Post, Ann Marimow uncovers the identity of the elusive hostess, “Peaches.”

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Posted in Round-up

Petition of the day

By on Oct 4, 2017 at 8:20 pm

The petition of the day is:


Issue: Whether orders denying state-action immunity to public entities are immediately appealable under the collateral-order doctrine.

In a brief order entered this afternoon, the Supreme Court allowed the execution of an Alabama inmate to go forward. The state had asked the court to intervene after the U.S. Court of Appeals for the 11th Circuit put the execution on hold; the ruling means that the execution of Jeffrey Borden can proceed as scheduled tomorrow evening.

Borden was sentenced to death for the murders of his estranged wife and her father on Christmas Eve 1993. He shot Cheryl Borden in the back of her head in front of their children; he then shot his father-in-law in the back as he attempted to run to safety. Borden’s challenge to his execution has been a common one in death-penalty cases in recent years: He argues that the three-drug protocol that the state plans to use to execute him violates the Constitution’s bar on cruel and unusual punishment. In particular, he contends, the first drug in that protocol – midazolam – will sedate him but cannot guarantee that he will not feel excruciating pain from the drugs that follow.

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When the justices took the bench this morning to hear oral argument in District of Columbia v. Wesby, there were two young children, dressed in their Sunday best, seated in the front row of the public section. The issues before the court in Wesby seemed like fairly dry ones: whether D.C. police officers had probable cause to arrest a group of people attending a party in a vacant home; and, even if they did not, whether the lawsuit must be thrown out anyway because the officers are entitled to immunity. But the kids wound up getting an earful, as the justices spent most of the argument focusing on the facts of the (as even Nathaniel Garrett, who represented the partygoers, acknowledged) “raucous party” – which included “stripping, drinking, and marijuana smoking.” The children (and the rest of the courtroom) also got a peek into Justice Elena Kagan’s younger years, as she admitted that she may have once attended large parties where she didn’t know the host and other guests “may” have been smoking marijuana. The tea leaves were not entirely clear by the end of the hour, but it seems likely that the police officers will eventually prevail, at the very least on the ground that they are entitled to immunity.

Nathaniel P. Garrett for respondents (Art Lien)

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Argument transcripts

By on Oct 4, 2017 at 3:38 pm

The transcript in District of Columbia v. Wesby is here; the transcript in Class v. United States is here.

Posted in Merits Cases
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