Thursday round-up
on Jun 15, 2017 at 7:31 am
At his eponymous blog, Lyle Denniston reports that “President Trump moved on Wednesday to keep his restrictions on immigration in operation, if the Supreme Court now allows government officials to start enforcing those limits,” by “extend[ing] the planned expiration dates for the restrictions” in a new presidential order. At Take Care, Leah Litman assesses the implications of the extension, arguing that “the President has now formally severed the link between the government’s review of its internal visa procedures and the entry ban itself,” and that “[a]s a result, the government has undermined its own oft-repeated rationale for the order: imposing a temporary bar on entry while it studied the issue and considered more comprehensive vetting procedures” and has “further weakened the claim that its entry ban is, or ever was, enacted for national security purposes.” At the Lock Law Blog, Ryan Lockman adds that the “DOJ’s dilly-dallying – knowing that the clock was ticking until the court’s summer recess, not seeking immediate Supreme Court review, not asking for expedited briefing, and then asking in mid-June for a two week delay in briefing (!) – undermines its own arguments that this is an urgent national security concern.” At The Washington Post’s Volokh Conspiracy blog, Sam Bray examines the immigration-law justifications for the national injunctions issued in the entry-ban cases, concluding that “no one has shown any compelling reason to think the naturalization clause authorizes national injunctions.”
At Justia’s Verdict Blog, Michael Dorf observes that Monday’s decision in Sessions v. Morales-Santana, in which the justices held that differential treatment of parents by gender in immigration law violates equal protection, “has potentially important implications for other immigration issues,” including the entry-ban cases, noting that “[a]s the government lawyers who have been regularly losing in the lower courts in the travel ban litigation have been learning the hard way, ‘immigration’ is no longer a magic word that locks the courthouse doors shut.” At the Human Rights at Home blog, Rachel Rosenbloom argues that “reports of the death of the Plenary Power Doctrine are greatly exaggerated,” and maintains that there “are no indications that the case will have broad implications regarding the application of the immigration laws to noncitizens.”
At Dorf on Law, Michael Dorf focuses on “the Court’s remedy” in Morales-Santana – “leveling down” so that no one gets the previously unequally distributed benefit rather than “leveling up” so everyone does – “and how Justices Thomas and Alito approached the case”; he maintains that “[b]y mischaracterizing the Court’s holding they evade responsibility for judging the case on the merits.” At the Gender and the Law Prof Blog, Tracy Thomas also looks at the remedy, criticizing the decision as a “literal roadmap for future courts to deny the ‘extension’ remedy and instead order the ‘withdrawal’ of benefit in cases of sex discrimination” and calling it “one giant step backwards.” In a two-part post on the Human Rights at Home blog, here and here, Deborah Brake explains that “[a]lthough the remedial issue in Morales-Santana is admittedly a thorny one, the Court’s analysis, limited to a determination of what the legislature would have wanted, fails to do justice to the full scope of equality rights and what is required to remedy violations of such rights”; she argues that the court “short-circuited the analysis, leaving leveling down remedies unchecked and with the potential to undermine equality rights.”
Briefly:
- At the Election Law Blog, Rick Hasen offers an abstract of a forthcoming article that discusses the court’s recent racial-gerrymandering decisions, noting that, given “the malleability of Supreme Court constitutional doctrine, especially in the area of election law,” “it would not be surprising to see a new, more conservative Supreme Court revert to its original treatment of the gerrymandering claim as a tool to limit minority voting power.”
- In The American Prospect, David Dayen considers Henson v. Santander Consumer USA Inc., in which the court held that the Fair Debt Collection Practices Act does not apply to debt buyers, arguing that the decision “gave some of the worst bottom-feeders in the economy a free pass to break the law.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in this case.]
- At PrawfsBlawg, Howard Wasserman takes note of the lower court’s actions following the Supreme Court’s decision earlier this term in Goodyear Tire & Rubber Co. v. Haeger, involving the proper standard for assessing sanctions for bad-faith discovery misconduct; he reports that “the Ninth Circuit remanded to the district court to redo the sanctions analysis, explicitly applying a but-for cause standard.”
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