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Monday round-up

Today the Supreme Court kicks off its last week of oral arguments this term with arguments in three cases. The first is Lucia v. Securities and Exchange Commission, which asks whether SEC administrative law judges are “officers of the United States” within the meaning of the appointments clause. Ronald Mann previewed the case for this blog. Leonardo Mangat and D.E. Wagner preview the case for Cornell Law School’s Legal Information Institute. Subscript has a graphic explainer for the case. For The Wall Street Journal, Dave Michaels and Brent Kendall report that “[i]f the justices rule for Mr. Lucia, it could invalidate the penalties against him and give a leg up to a handful of other defendants who similarly disputed the hiring process for SEC judges [, which] also could encourage challenges from defendants who grappled with administrative law judges at other federal agencies.” At Bloomberg, Margaret Newkirk and Greg Stohr report that “[s]iding with [Lucia]—and against the SEC’s long-standing position—will be the Trump administration,” and that the case “amounts to a broadside aimed at the 1,900 administrative law judges (ALJs) who help federal agencies enforce laws and are a key part of the administrative ‘deep state’ that Trump has vowed to dismantle.” At Law360 (subscription required), Daniel Walfish analyzes Lucia’s “practical significance for pending and future cases, and the Trump administration’s unusual bid to weaken the independence of ALJs.” In an op-ed for the Washington Examiner, Philip Hamburger argues that “[t]here is … no reason for the justices to strain the Constitution to approve the SEC’s indirect appointment method.”

The second argument this morning is in Pereira v. Sessions, in which the justices will consider how to interpret a provision of the criminal-removal statute. Jennifer Chacon had this blog’s preview. Larry Blocho and Ryan Powers preview the case for Cornell, and Subscript offers a graphic explainer. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case. The author of this post is not affiliated with the firm.]

After a lunch break, the justices will hear argument in Chavez-Meza v. United States, which asks how fully a judge must explain a sentencing modification. This blog’s preview came from Susan Klein. Cornell’s preview is by Axel Schamis and Katherine Van Bramer. Subscript’s graphic explainer is here. For The Wall Street Journal, Jess Bravin reports that Deputy Attorney General Rod Rosenstein will take the lectern for the government for his first Supreme Court argument, and that “despite his managerial responsibilities over thousands of Justice Department employees, Special Counsel Robert Mueller among them, [Rosenstein] considers himself a practicing lawyer first.”

At The Weekly Standard, Adam White explains that “the principles underlying [Justice Neil] Gorsuch’s opinion” in Sessions v. Dimaya, in which he concurred in a judgment holding that a portion of the criminal-removal provision in the Immigration and Nationality Act is unconstitutionally vague, “are largely what propelled him to a Supreme Court nomination in the first place.” At Jost on Justice, Kenneth Jost argues that “[o]riginalists promise in part that originalism can yield definite answers to hard legal issues and thus force judges to decide cases solely on the basis of law instead of their personal views,” “[b]ut the promise is an illusion, as seen in the dueling opinions of the two originalist justices Clarence Thomas and Neil Gorsuch” in Dimaya.

In a podcast for Law360 (subscription required), Maria Koklanaris discusses South Dakota v. Wayfair, in which the justices will reconsider a ruling that limits the ability of state governments to require out-of-state online retailers to charge tax on sales to state residents. In an op-ed for The Washington Post, Daniel Hemel weighs in on the case, hoping that “by the end of Tuesday’s oral argument, it was clear to the justices that they can’t rely on Congress or on Amazon to solve the problem,” and that “[p]assing the buck here will cause states and localities to lose billions of dollars more in sales tax revenue.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]

Court-watchers are homing in on Wednesday’s oral argument in Trump v. Hawaii, a challenge to the latest version of the Trump administration’s entry ban. At Bloomberg, Greg Stohr reports that “[t]he court will consider whether the travel ban’s roots lie in anti-Muslim comments Trump made during his campaign, whether he overstepped his authority under immigration laws and whether judges can second-guess the president’s national-security assessments.” For The Washington Post, Robert Barnes observes that “similar to a debate that has consumed Washington for the past 15 months, a major issue for the court is separating ‘the president’ from ‘this president.’” Additional coverage comes from Lawrence Hurley at Reuters and Lydia Wheeler at The Hill. At Balkinization, Marty Lederman offers “a few thoughts about the almost forgotten, but potentially significant, third Question Presented in the case: ‘Whether the [district court’s] global injunction is impermissibly overbroad.’”At Casetext, David Boyle surveys the “’Christian’ amicus briefs” “either for Petitioners, Trump et al., or for neither party.”


  • At the Associated Press, Jessica Gresko reports that “Susette Kelo’s Supreme Court case now has a Hollywood ending, just not the one she hoped for”: Kelo’s fight to keep the city of New London, Conn., from seizing her property to make way for development has been turned into a movie, “Little Pink House,” which the current mayor of New London calls “a cautionary tale about two sides becoming so polarized they couldn’t find a middle ground.”
  • For the Austin American-Statesman, Chuck Lindell takes note of the possible effects of the court’s partisan-gerrymandering cases on Abbott v. Perez, two consolidated challenges to Texas redistricting that will be argued tomorrow.
  • Constitution Daily offers highlights from the career of retired Justice John Paul Stevens in honor of Stevens’ 98th birthday last Friday.
  • At The Atlantic, Garrett Epps observes that “Justice Neil Gorsuch may have had a slightly awkward first year, but he just racked up a hell of a week,” “hiring the Court’s first-ever Native American law clerk” and issuing “two skillful high-profile opinions—a concurrence in an important immigration case and a dissent in a death-penalty decision.”
  • At The New Republic, Matt Ford reports that “unless there’s a deluge of opinions in the next few weeks, this term may end up being one of the court’s slowest, ever.”

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Recommended Citation: Edith Roberts, Monday round-up, SCOTUSblog (Apr. 23, 2018, 7:26 AM),