Editor's Note :

Editor's Note :

On Wednesday the court hears oral argument in Trump v. Hawaii. Amy Howe has our preview.

No new grants, but four CVSGs

By on Apr 16, 2018 at 11:42 am

This morning the Supreme Court issued orders from last week’s private conference. The justices did not add any new cases to their merits docket for their next term, which begins in October, but they did ask the U.S. solicitor general to weigh in on four cases.

Two of the cases in which the U.S. solicitor general has been asked to file briefs expressing the views of the United States are original actions – that is, lawsuits filed first in the Supreme Court – challenging state laws that seek to regulate the treatment of farm animals. The first case, Missouri v. California, asks the justices to invalidate a California law that requires farms raising egg-laying hens to ensure that the hens can move around freely. Telling the court that California’s regulation of eggs has “inflated egg prices for every egg consumer in the Nation,” 13 states argue that the law is trumped by federal laws and violates the Constitution’s commerce clause, which prohibits states from enacting laws that are intended to discriminate against citizens of other states or that place an unnecessary burden on interstate commerce. In the second case, Indiana v. Massachusetts, another group of 13 states (which closely resembles, but is not identical to, the group of state plaintiffs in the Missouri case) challenges efforts by Massachusetts to impose similar restrictions by barring sales in Massachusetts of eggs, pork and veal from animals that were “confined in a cruel manner.”

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The justices face a lot of high-stakes cases the last week of the term – with Abbott v. Perez on Tuesday and Trump v. Hawaii on Wednesday – but Monday’s argument in Lucia v. Securities and Exchange Commission may be as important a decision for the administrative state as any case the justices have heard all year. The case involves the Constitution’s appointments clause, which requires that all “officers” of the United States be appointed by the president, by the “courts of law,” or by the “heads of departments.” This case involves the administrative law judges (commonly known as ALJs) of the Securities and Exchange Commission, who traditionally have not been appointed by the SEC, much less the president or the judicial branch. If those ALJs are officers, then their appointments have been unconstitutional.

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We’re coming up on the final arguments of the term, and we’ll get you ready with a preview of the future of online sales tax in South Dakota v. Wayfair. We’ll also catch up on grants, orders and opinions. What’s with the Supreme Court and qualified immunity cases? Why is Justice Sonia Sotomayor fired up in her dissent, and why is Justice Ruth Bader Ginsburg the only other liberal justice to back her up? Plus, with the help of a hotline call, we’ll talk about what would happen if a majority of justices have to recuse themselves from a case.

And speaking of hotline calls, we got a lot of them! We’ll answer your questions and praise your dedicated research skills.

Monday round-up

By on Apr 16, 2018 at 7:21 am

Today the Supreme Court begins its last argument session of the term with oral arguments in two cases. The first is Wisconsin Central Ltd.v. United States, which asks whether stock options are taxable compensation under the Railroad Retirement Tax Act. Daniel Hemel has this blog’s preview. At Law360 (subscription required), Amy Lee Rosen reports that “experts believe oral arguments and the case itself will hinge on whether ‘money remuneration’ should be broadly or narrowly interpreted.” Marissa Rivera and Michael Chou preview the case for Cornell Law School’s Legal Information Institute. Subscript has a graphic explainer for the case.

This morning’s second argument is in WesternGeco LLC v. ION Geophysical Corp., in which the justices will consider whether damages for infringement of a domestic patent overseas include lost profits for overseas contracts the patentholder would have obtained if the infringement had not occurred. Ronald Mann previewed the case for this blog. Shelby Garland and Larry Blocho have Cornell’s preview, and Subscript’s graphic explainer is here.

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This week at the court

By on Apr 15, 2018 at 12:00 pm

On Monday the Supreme Court released orders from the April 13 conference. The justices called for the views of the solicitor general in Missouri v. California, Indiana v. Massachusetts, Kansas v. Garcia and Gilead Sciences Inc. v. United States ex rel. Campie. They also heard oral argument in Wisconsin Central Ltd. v. United States and WesternGeco LLC v. ION Geophysical Corp.

On Tuesday the justices released their opinions in Sessions v. Dimaya, Wilson v. Sellers and United States v. Microsoft. They also heard oral argument in South Dakota v. Wayfair, Inc. and Lamar, Archer & Cofrin, LLP v. Appling.

On Wednesday the justices heard oral argument in Lagos v. United States and Washington v. United States.

On Friday the justices met for their April 20 conference; our “petitions to watch” for that conference is available here.

 
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Petition of the day

By on Apr 13, 2018 at 1:00 pm

The petition of the day is:

17-1233

Issue: Whether the deprivation of a lawful permanent resident’s opportunity to pursue statutorily available discretionary relief from removal can render entry of the removal order fundamentally unfair.

 
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Friday round-up

By on Apr 13, 2018 at 7:11 am

At his eponymous blog, Lyle Denniston reports that “[t]he Supreme Court and a federal appeals court are now moving simultaneously to sort out a major constitutional controversy over a right to abortion for undocumented teenaged girls being held in federal immigration centers and who are now or will become pregnant.” At Rewire’s Boom! Lawyered podcast, Imani Gandy and Jessica Mason Pieklo weigh in on the cert petition currently pending before Supreme Court, Azar v. Garza, in which the government has asked the court to sanction the attorneys for the pregnant teenager.

At the Associated Press, Joyce Rosenberg reports that the court’s decision in South Dakota v. Wayfair, a case on Tuesday’s argument calendar in which the justices will reconsider a ruling that limits the ability of state governments to require out-of-state online retailers to collect tax on sales to state residents, “could have national implications on e-commerce, although Congress can pass legislation afterward that broadens or narrows the law.” At National Review, James Sutton argues that “the outcome could affect millions of small, online retailers and brick-and-mortar companies that ship across state lines, subjecting them to abusive treatment by the states.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]

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On April 17 from 1 p.m. to 3 p.m., the Retail Industry Leaders Association will host two panels discussing South Dakota v. Wayfair, which will have been argued that morning. The first panel is titled, “From Quill to WayFair – How We Got Here” and will feature Deb Peters and Joe Crosby. The second will be a discussion and analysis of the oral argument, featuring Deborah White and Eric Citron. Both panels will be moderated by Bernie Becker. More information, including instructions on how to RSVP, is available here.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case. ]

 
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Petition of the day

By on Apr 12, 2018 at 2:10 pm

The petition of the day is:

17-658
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case. This listing occurs without regard to the likelihood that certiorari will be granted.

Issues: (1) Whether, when the government prosecutes a public official for soliciting campaign contributions in an alleged violation of the Hobbs Act or other federal anticorruption laws, the government must prove the defendant made an “explicit promise or undertaking” in exchange for the contribution per McCormick v. United States, as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts per Evans v. United States, as three other circuits hold; and (2) whether a district court may decline to address a defendant’s nonfrivolous argument that a shorter sentence is necessary to avoid “unwarranted sentence disparities,” 18 U.S.C. § 3553(a)(6), so long as it issues a sentence within the U.S. Sentencing Guidelines, as the U.S. Courts of Appeals for the 7th and 10th Circuits hold, in conflict with the law of the majority of circuits.

On April 16 at 12 p.m., the Heritage Foundation will host a panel discussion about a case asking whether states can require out-of-state retailers to collect sales tax when their residents make a purchase online. The Supreme Court will hear oral argument in the case, South Dakota v. Wayfair Inc., the next day. Panelists include Michael Greve, Adam Michel, David Salmons and Jonathan Williams; Elizabeth Slattery will moderate. Registration and additional information about this event, which will be held at the foundation’s Lehrman Auditorium, is available on the Heritage website.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case. ]

 
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