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No action on immigration; McDonnell gets hearing

Taking no action on the Obama administration’s plea for approval of its new immigration policy, the Supreme Court on Friday agreed to review the claim by former Virginia Governor Robert F. McDonnell that he is innocent of corruption or fraud because he did not take any official action to benefit a friend and benefactor.  The Court also added seven other cases to its docket for decisions this Term.

The new orders filled some remaining slots for argument, presumably in March or April, but there were not enough to complete the full calendar.  That means some cases could be granted next week and still be decided before the current Term ends in late June, especially if the briefing schedule were expedited.

The administration had hoped that the Court would grant review immediately of the controversial plan to defer the deportation of more than four million undocumented immigrants, so as to help assure that the program could be put into effect later this year.  It is now blocked by lower court orders.  There was nothing about United States v. Texas, however, on the orders released at mid-afternoon Friday.

A notable feature of all eight of the newly granted cases is that the Court had considered them at least one time previously without taking action.  This appeared to indicate that the Court was continuing with its policy of examining new cases at least once before accepting them for review, to help ensure that the cases would not later elude review because of some unnoticed complication.

Some further indications of the possible fate of the immigration case could come on Tuesday morning, when the Court will release additional orders — including those denying review — in cases considered at the Justices’ private Conference earlier in the day Friday.  It is possible, but there is no way to know whether it might happen until then, that the Court could deny review of the immigration case altogether, leaving that case to go to a trial in federal court in Texas. Because time might run out on President Obama’s time in office, a denial of review by the Justices could mean the end of the new program.

Aside from the immigration case, the Court had considered a number of other major cases Friday, and there was no action on them shown on the order list.  Among them was a new constitutional challenge to the Affordable Care Act’s individual insurance mandate, a new test case on states’ power to ban abortions much earlier in pregnancy, a controversy over one state’s refusal to respect another state’s adoption order for one partner in a same-sex relationship, and a plea to hold a private group and state officials in Hawaii in contempt for the actions they took on an election to pick delegates to a convention to write a new constitution for a new nation within the state, for “native Hawaiians” only.

On Tuesday, the Court will make known whether it will consider those cases again at their scheduled private meeting a week from today — the final one at which cases could be selected in time to have them ready for decisions this Term.

The case involving the former governor of Virginia (McDonnell v. United States) was a high-profile prosecution that had appeared to remove him from any future chance of becoming a national leader in the Republican Party.  Both he and his wife were convicted of corruption charges based on prosecutors’ claims that the governor used the powers of his office to help a Richmond businessman approach state agencies for help in promoting a health supplement his company was producing.   The governor was sentenced to two years in prison, and Maureen McDonnell was sentenced to a year and a day in prison.  She currently has an appeal pending in a lower court.

His appeal raised two issues, but the Court agreed to rule only on his claim that prosecutors used too expansive an interpretation of the “official acts” provision used in corruption cases under three federal bribery or fraud laws.  The Court chose not to hear McDonnell’s claim that the trial judge did not do enough to bar jurors who might have been influenced by the heavy publicity that surrounded his case, before and during trial.

McDonnell has been allowed by the Court to remain out of prison until his appeal of his conviction is decided by the Justices.

Another significant case that the Court will decide, Trinity Lutheran Church v. Pauley, will take the Justices back into the abiding controversy over religious groups’ access to public benefits.  The church involved in the case was denied access to a state program in Missouri that provides playground surface rubber made from old tires.  The refusal was based on a state constitutional provision barring any public funds going to religious groups.   The new case has the potential for a major interpretation of what neutrality involving religion means for public benefits.

Here, in summary, are the issues in the other six cases in which the Court granted review:

Microsoft v. BakerReview will be limited to a question rewritten by the Court: whether a federal appeals court has the authority to review an order refusing to let a lawsuit proceed as a class action after those who are named in the case as representatives of the class have dismissed their individual claims.  The case grows out of a series of claims by owners of Microsoft’s Xbox game-playing device that it was designed defectively so that, with any amount of movement, the internal discs would be scratched and made inoperable.

Manuel v. Joliet, Ill.: Whether an individual who claims to have been a victim of police fabrication of evidence has a right to sue for discriminatory prosecution under the Fourth Amendment — an issue left open previously by the Court.

Kirtsaeng v. John Wiley & Sons: A case that had been before the Court before, returning for clarification of the right to recover attorney’s fees in a copyright case.

Encino Motors v. Navarro: Whether employees of auto dealerships who write up service orders for customers’ vehicles should be classified as salesmen and thus not entitled to overtime pay under federal wage-and-hour law.

Cuozzo Speed Technologies v. Lee: Definition of legal test to be used by the Patent Office in deciding whether to cancel a patent and whether the test should be the same that is used when a patent is challenged in federal court.

Murr v. Wisconsin: Whether, when a property owner claims that a government regulation amounts to “taking” of the property, two parcels that are distinct but next to each other be treated as one for this analysis.


Recommended Citation: Lyle Denniston, No action on immigration; McDonnell gets hearing, SCOTUSblog (Jan. 15, 2016, 4:46 PM),