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December grants: In Plain English

Less than a month after announcing that it would review the constitutionality of the Affordable Care Act, in December the Court removed any lingering shred of doubt that this will be a blockbuster Term by adding two more highly significant cases to its docket.  The first, Arizona v. United States, involves the famous Arizona immigration statute, S.B. 1070; courtwatchers began anticipating the case even before Arizona Governor Jan Brewer signed the law at issue in April 2010.  The second (which came to the Court in several petitions) involves the redistricting of Texas’s legislative districts.  Both cases, like the health care litigation, will require the Court to weigh in on the often controversial issue of the relationship between the states and the federal government.  The cases will also be decided as the 2012 political campaigns reach a fever pitch – putting the Court in the public eye in a way that it hasn’t been since its December 2000 decision in Bush v. Gore.

Arizona v. United States has its roots in Arizona’s perception that the federal government is not doing enough to stem the flow of illegal immigrants into the border state.  Arizona describes its strategy as “attrition”:  it wants to make conditions there sufficiently unpleasant for illegal immigrants that they will decide to leave on their own.  Among other things, S.B. 1070 makes it a crime for an undocumented immigrant to apply for a job or to be in the state without valid immigration papers.  The law also allows a law enforcement official to arrest someone without a warrant based on probable cause to believe that the individual has at some point done something that would permit his deportation.

The federal government (and numerous civil rights organizations) filed suit seeking to block the law from going into effect, arguing that these provisions were “preempted” – i.e., trumped – by federal laws governing immigration.  Only the federal government, the Justice Department argued, can make immigration policy.  The trial court agreed with the heart of the government’s position, and the U.S. Court of Appeals for the Ninth Circuit, which hears appeals from federal trial courts in Arizona, affirmed.   Now the Supreme Court has agreed to wade into the controversy, granting review over the objection of the federal government.

Justice Kagan is not participating, because of her involvement in earlier stages of the case as the Solicitor General.  If the remaining eight Justices were to deadlock on the case, the trial court’s decision would stand.

The Court’s decision, which will probably come in late June, will be an important pronouncement on what steps, if any, states may take to regulate undocumented immigrants within their borders.  States with similar laws (like Alabama) will certainly be watching closely.  Immigration is also of course a hot political topic (including in the presidential campaign), and the Court’s decision is likely to fuel, rather than extinguish, that debate.

The Court also agreed to dive the dispute over Texas’s plans to re-draw its election maps.  The relationship between the federal government and the states is at the heart of that issue too.  Between 2000 and 2010, the population of Texas grew by over four million people, who are overwhelmingly Hispanic or African American.  This population increase meant that Texas gained four seats in the U.S. House of Representatives, requiring the state needed to re-draw its election maps for both Congress and the state legislature.  The state legislature created a new set of plans, but (because Texas has a history of racial discrimination in voting) those plans could not go into effect until they had been approved (or “precleared,” in voting parlance) by either the Department of Justice or a special federal court in Washington.

Challengers to the state’s plans have asked a federal court in San Antonio, Texas to make sure that the state did not try to use either the old election maps or the new, as-yet-unapproved ones in the upcoming elections.  (Those maps, the challengers argue, reflect efforts by the state’s Republican-controlled legislature to minimize the influence of the growing number of Hispanic voters, whom Republicans believe are more likely to support Democratic candidates.)  With the window for candidates to file for election looming, the San Antonio court drew up its own temporary maps that would increase the influence of the state’s minority voters.

State officials then went to the Supreme Court, asking it to issue a temporary order blocking the use of the temporary court-drawn maps.  But they made a second suggestion as well:  the Court should take up the merits of the appeals from the San Antonio court’s decision, on a fast-track basis.  The Court considered the appeals at the Justices’ private Conference in early December, and that night it issued an order indicating that it would grant both of the state’s requests:  it put the use of the court-drawn maps on hold, and it will hold oral arguments on January 9 on the merits of the lower court’s decision.  In the hotly contested world of redistricting, the Court’s decision could have significant real-world implications, particularly given the recent promises by the Obama Administration to fight vigorously to protect voting rights.

The Court added yet another high-profile case (with a famous protagonist) to its docket in December with its announcement that it would grant review in Reichle v. Howards, a First Amendment case.  In 2006, then Vice-President Richard Cheney was visiting a Colorado mall, where he encountered the respondent in this case, Steven Howards.  Before Howards spoke with Cheney, a Secret Service agent in Cheney’s detail heard Howards tell someone on his cell phone that he planned to ask the Vice-President “how many kids he killed today.”  Howards then approached Cheney and criticized the Bush Administration’s policies on Iraq as “disgusting.”  Finally, Howards touched Cheney, giving him what Howards described as a pat but some agents characterized as a shove; the contact led to Howards’s arrest on charges that he had assaulted the Vice-President.

After the assault charge against him was dropped, Howards filed this lawsuit against (among others) two of the Secret Service agents who arrested him, arguing that he was arrested in retaliation for exercising his right to free speech.  In response, the agents argued that they could not be sued because they were entitled to “qualified immunity.”  Qualified immunity is a concept that is intended to protect government officials from the burden of lawsuits alleging that, while they were performing their official duties, they violated someone’s rights.  But while we want to shield officials from frivolous lawsuits, we also want to hold them accountable for truly bad behavior.  To do this, the doctrine of qualified immunity tries to strike a balance between the two poles:  a government official cannot be sued unless a reasonable official in his place would have known that he was violating the plaintiff’s clear rights.  In this case, the agents contended that they could have arrested Howards for something else – lying to a Secret Service agent about whether he had actually touched the Vice-President.

The United States Court of Appeals for the Tenth Circuit rejected the agents’ argument.  The fact that the Secret Service may have had probable cause to arrest Howards didn’t matter, the court explained, if he was arrested for exercising his right to free speech.  The court reached this conclusion despite a recent decision by the Supreme Court, in a case called Hartman v. Moore, holding that plaintiffs who allege that they were prosecuted for exercising their free speech rights could sue only if they could also show that there was no probable cause to arrest them.  The Cheney case, the court of appeals emphasized, involved an arrest, rather than a prosecution.  Moreover, the Tenth Circuit concluded, the Secret Service agents were not entitled to qualified immunity because it should have been clear to them when they arrested Howards that they could not arrest him for exercising his First Amendment rights.

The Secret Service, supported by the federal government, filed a petition asking the Court to step in.  Howards did not oppose review, telling the Court that it needed to resolve different interpretations of Hartman in the lower courts.   When the Court hears oral arguments in the case in March, Justice Elena Kagan will be recused in this case as well.  The Court’s decision in the case could prove important for others who may face arrest while exercising their First Amendment rights – most prominently, the members of the Occupy Wall Street movement and its progeny around the country.

The Court also added three other cases to its docket in December.  And although you’re not likely to hear about them on the nightly news, experts in the fields of bankruptcy law and Native American law will be watching them closely.

In the first of these three cases, RadLAX Gateway Hotel v. Amalgamated Bank, the Court will be weighing in on what the petitioner in the case described as “perhaps the most hotly-debated issue of bankruptcy law today”:  how to interpret the section of the Bankruptcy Code that governs how a debtor can dispose of its assets.  The petitioners in this case own an airport hotel and parking garage that were built using loans of $142 million from the respondent, Amalgamated Bank.  The business was hit hard by the recession:  in 2009, the petitioners filed for bankruptcy under Chapter 11 of the Bankruptcy Code, which generally allows a bankrupt business to reorganize itself to stay afloat and pay its debts over time.

The petitioners eventually proposed a plan to sell their assets to a third party for $55 million.  Under the plan, creditors such as Amalgamated would not have been able to “credit bid” when the properties were sold.  The process of “credit bidding” helps to protect lenders and creditors against lowball offers:  it gives them the chance to show up at a sale and bid on the debtor’s assets, up to the full amount of their claim.  If a creditor wins, it can reduce or forgive the amount that the debtor owes it; in exchange, it gets the property.  Even if the creditor doesn’t win the auction, participating in the bidding can help to drive up the price for which someone else buys the assets (and therefore presumably increases the amount of money that might be available to pay it back).

Interpreting the Bankruptcy Code, the lower courts refused to approve the procedures for the sale; in their view, creditors are always entitled to credit bid when the property that serves as the collateral for their loan is sold in a Chapter 11 sale.  This interpretation of the Bankruptcy Code conflicts with that of another court of appeals, which has concluded that sales do not have to allow credit bidding as long as the creditors receive the equivalent of their claims.   The Supreme Court granted review to resolve this split among the lower courts, and it will hear oral arguments in the case in April.

The final two cases added to the Court’s docket in December – Salazar v. Patchak and Match-She-Be-Nash-She-Wish Band of Pottawattami Indians v. Patchak – will be argued in a single, one-hour session.  Both cases arise out of a transaction in which the federal government placed land “into trust” for the Band – a process by which the government obtains the title to a piece of land and then holds it for the benefit of a tribe or individual tribal members.  (The “trust” process is intended to compensate the tribes for the land that the federal government took from them between 1887 and 1934.)  Although federal laws and regulations may place some restriction on how land taken into trust may be used, the land is generally not subject to any state restrictions.  In this case, a portion of the land placed into trust for the Band eventually became the site for a $157 million casino, which opened last year.

The respondent in both cases, David Patchak, lives near the casino.  He filed this lawsuit, arguing that the government could not take the land into trust because the Band was not recognized as a tribe by the federal government in 1934, when the Indian Reorganization Act (IRA) – the federal law authorizing the trust process – was enacted.

As happens so often, as it reaches the Court this case is not about the merits of Patchak’s arguments, but rather about whether the suit can proceed at all.  There are two potential obstacles.  The first one is “standing”:  whether Patchak himself has the right to bring the lawsuit.  For a plaintiff to bring a lawsuit, he must have been injured by the conduct that he is complaining about, and it must be likely that a court decision in his favor will fix the problem.  But even if those criteria are met, the plaintiff must also show that the injury that he is complaining about is the kind of problem that Congress intended to protect against when it enacted the statute. In this case, the federal trial court held that Patchak’s alleged injury – the casino’s negative effects on the neighborhood around it – were not what Congress had in mind when it passed the IRA, but the court of appeals disagreed.  In its view, the combination of the IRA and another law, the Indian Gaming Regulatory Act, did protect Patchak from those negative effects.

The second hurdle for Patchak to overcome is sovereign immunity:  even if he has “standing” to sue, can he bring this lawsuit against the United States?  As a general rule, the United States cannot be sued unless Congress has expressly waived the government’s immunity in a statute.  The court of appeals concluded that Congress had indeed done so, in a law that generally allows suits against the United States as long as they are not seeking money from the government.  In reaching that decision, the court of appeals rejected the government’s argument that the general waiver provision was trumped by a more specific provision prohibiting suits that challenge the title to lands held in trust.

The Supreme Court will now take up both of these open questions.  A decision in Patchak’s favor could not only jeopardize the operation of the highly profitable casino – turning it into what one legal expert has described as “the world’s most expensive bingo hall” – but could also lead to additional lawsuits challenging other trust decisions.  Whatever the Court decides, however, we will cover it in Plain English.

Recommended Citation: Amy Howe, December grants: In Plain English, SCOTUSblog (Jan. 4, 2012, 11:45 AM),