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More on today’s orders

This morning the Supreme Court issued orders from the justices’ private conference last week. The court granted four petitions for review, including two consolidated cases (discussed in a separate post) involving the constitutionality of the Affordable Care Act’s individual mandate. All the cases granted today are expected to be argued next fall, with a decision to follow by June 2021.

The “deliberative process” privilege protects documents that reflect a government agency’s deliberations over possible actions from being disclosed in civil lawsuits. In U.S. Fish and Wildlife Service v. Sierra Club, the justices agreed to review a ruling by the U.S. Court of Appeals for the 9th Circuit that the privilege does not protect draft documents that the Fish and Wildlife Service and the National Marine Fisheries Service created as part of a formal consultation process under Section 7 of the Endangered Species Act. The act requires a federal agency to work with the FWS and the NMFS if the agency concludes that an endangered or threatened species (or its habitat) is likely to be jeopardized by an action that the agency is proposing.

The question came to the court after the Environmental Protection Agency consulted with the FWS and NMFS about the possible effect of proposed 2011 regulations for the cooling structures used by power plants and manufacturers. In December 2013, the FWS and NMFS prepared draft opinions, which were never finalized; in March of the following year, the EPA sent the agencies a new proposed rule. The FWS and NMFS concluded that the new rule would not jeopardize any endangered or threatened species.

After unsuccessfully challenging the final rule in another federal court, which rejected its efforts to have the record include the draft opinions prepared in December 2013, the Sierra Club filed a request under the Freedom of Information Act, seeking records from the interagency consultation process, including the December 2013 draft opinions. The district court ordered the government to produce the draft opinions, and the 9th Circuit upheld that ruling. The federal government appealed to the Supreme Court, telling the justices that if the 9th Circuit’s ruling is allowed to stand, it would “have the potential to inhibit the frank deliberations between agencies that are essential to” the consultations required by the Endangered Species Act, “which are in turn essential to the wide range of federal agency actions that may affect” the species listed as endangered or threatened. Today the justices granted the government’s appeal.

Last fall the Supreme Court agreed to decide whether a criminal offense that can be committed merely by being reckless qualifies as a “violent felony” for purposes of the Armed Career Criminal Act, which requires increased sentences for repeat offenders who commit crimes with guns and have been convicted of either violent felonies or serious drug crimes. But the petitioner in that case, James Walker, died in January, before the justices heard oral argument in his case. This morning the justices granted a new case, involving the same issue, to replace it: Borden v. United States, filed by a Tennessee man who was caught with a pistol during a traffic stop in April 2017. Borden pleaded guilty to being a felon in possession of a firearm but argues that one of his prior convictions for aggravated assault does not qualify as a “violent felony” under the ACCA.

The justices denied review in Guedes v. Bureau of Alcohol, Tobacco and Firearms, a case that arose from a challenge to a 2018 rule that expanded the definition of “machine gun” to include “bump stocks” – attachments that help a semiautomatic rifle to fire faster. The U.S. Court of Appeals for the District of Columbia Circuit upheld the rule, prompting the plaintiffs to go to the Supreme Court, where they asked the justices to take up three questions. The first two questions dealt with the interaction between the Chevron doctrine – the idea that courts should defer to an agency’s interpretation of the law that it administers – and the rule of lenity, a principle of statutory interpretation that directs courts to apply an ambiguous criminal law in the manner most favorable to the defendant. The third question was whether, if Chevron deference applies and cannot be waived, the Supreme Court should overrule it.

Justice Neil Gorsuch issued a statement regarding the court’s decision not to grant the petition. Gorsuch indicated that he did “not know and could not say without briefing and argument” whether “bump stocks can be fairly re-classified and effectively outlawed as machineguns under existing statutory definitions.” Nor, Gorsuch added, did he “question that Congress might seek to enact new legislation directly regulating the use and possession of bump stocks.” “But at least one thing should be clear,” Gorsuch emphasized: The Chevron doctrine “has nothing to say about the proper interpretation of the law before us.” However, Gorsuch stressed, he agreed with the court’s decision not to take up this particular case. This case is still in its preliminary stages, Gorsuch noted, leaving open the possibility that the “errors apparent” in the ruling “might yet be corrected before final judgment,” and other cases presenting the same issue are making their way through other courts of appeals. “But waiting,” Gorsuch concluded, “should not be mistaken for lack of concern.”

The justices’ next conference is scheduled for Friday, March 6. Orders from that conference are likely on Monday, March 9, at 9:30 a.m.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, More on today’s orders, SCOTUSblog (Mar. 2, 2020, 11:22 AM),