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Friday round-up

Yesterday the Supreme Court decided another of the term’s most closely watched cases, Department of Homeland Security v. Regents of the University of California, ruling that the government’s decision to terminate the DACA program, which allowed undocumented young people brought to this country as children to apply for protection from deportation, violated the procedural requirements prescribed for administrative agencies. Amy Howe analyzes the opinion for this blog, in a post that was first published at Howe on the Court. For The Wall Street Journal (subscription required), Brent Kendall, Jess Bravin and Michelle Hackman report that “[t]he court, in a 5-4 opinion by Chief Justice John Roberts, said the administration acted arbitrarily when it moved to end the … program, failing to offer adequate reasons for doing so.” Adam Liptak and Michael Shear report for The New York Times that “[t]he court’s ruling means the Trump administration officials will have to provide a lower court with a more robust justification for ending the program[; t]hat process is likely to take many months, putting the administration’s assault on the program in limbo until after the November election.” At Fox News, Ronn Blitzer and Bill Mears report that “Roberts made clear that the administration does indeed have the power to rescind DACA, just not in this fashion.”

At NPR, Nina Totenberg reports that “[w]hile the decision gives DACA and its hundreds of thousands of recipients a lifeline, the issue is far from settled.” Jess Bravin and Rebecca Balhaus report for The Wall Street Journal that “[t]he decision immediately made waves in the presidential race, with Mr. Trump emphasizing the importance of picking conservative judges and his presumptive opponent, former Vice President Joe Biden, pledging a sharply different course on immigration policy if he wins.” Pamela King reports at E&E News that the decision “also preserves the judiciary’s ability to consider rollbacks of environmental laws.” Mark Walsh covers the decision for Education Week.

Greg Stohr reports at Bloomberg that President Donald Trump “endured a disastrous week at the high court, losing fights over LGBT job-bias suits and his bid to end the DACA deferred-deportation program”; [t]he repeated blows left Trump seething[, b]ut the DACA decision suggested it was Trump’s penchant for short-cuts, rather than any personal animus, that led him to defeat.” At USA Today, Richard Wolf reports that “the man most responsible for the unexpected turn of events” in this week’s major decisions “was the leader of the supposedly conservative court – a label that is coming under a little re-examination.” Joan Biskupic reports at CNN that “[t]he conspicuous moves by a generally reliable conservative reveal a chief justice trying to defuse disputes that bring the nation’s high court into tension with the US president.” Additional coverage comes from Steven Mazie at The Economist’s Espresso blog and Tucker Higgins at CNBC.

The editorial board of National Review laments that “[f]or the second time in a week, the Supreme Court has allowed liberals to enact one of their longstanding legislative priorities without the consent of Congress or the president.” At the Constitutional Law Prof Blog, Ruthann Robson observes that the majority’s “focus on the APA is not surprising although there were constitutional issues.” At FiveThirtyEight, Amelia Thomson-DeVeaux writes that if the reasoning in the DACA case “sounds similar to Roberts’s ruling last year on whether the Trump administration could add a citizenship question to the 2020 census, you’re on to something.” The editorial board of The Wall Street Journal maintains that, “[a]s Justice Thomas explains, a President should not have to follow normal administrative procedures to reverse a policy that was unlawful in the first place.”

At the Immigration Prof Blog, Minyao Wang notes that the court “declined to address whether DACA was a lawful exercise of Executive Branch authority, even though this central issue was comprehensively briefed by the parties and amici.” At PrawfsBlawg, Juan Carlos Gomez views the decision as “more of a victory for those [who] believe in limiting the power of any administration to avoid or to limit judicial review, than it is for immigrant rights advocates.” Also at PrawfsBlawg, Howard Wasserman notes that the decision “again avoided the scope-of-injunction issue and the propriety of universal/non-particularized injunctions, in a clever way.” Stanford Law School’s Legal Aggregate blog offers a Q&A about the decision with immigration law experts Jayashri Srikantiah and Lisa Weissman-Ward. Garrett Epps writes at The Atlantic that the “fate [of the “Dreamers,”] like so much else that matters in American life, will be squarely on the November presidential ballot.” Additional commentary comes from Kevin Johnson at the Immigration Prof Blog.

Amy Howe reports for this blog, in a post that first appeared at Howe on the Court, that, “[a]fter the federal government announced that it plans to resume executions in July after a pause of nearly 20 years, the Supreme Court [yester]day put the dispute over the lethal-injection protocol that the government plans to use in those executions on a fast track.”  Kent Scheidegger writes at Crime & Consequences that “the issue of the validity of the federal execution protocol is important, and given the badly splintered outcome in the Court of Appeals, … it needs to be resolved by the Supreme Court”.

Jennifer Hijazi reports at E&E News that Monday’s decision in Bostock v. Clayton County, Georgia, in which the court held that federal employment discrimination law protects gay and transgender employees, “could provide powerful ammunition for climate litigators.” In an op-ed at Bloomberg Law, Alan Morrison writes that “[t]he most obvious lesson about textualism from” the majority and dissenting opinions in Bostock “is that textualism is not a tool that can be easily applied to produce an agreed upon result.” At Understanding the ADA, William Goren explains why this case “will have an absolutely huge impact on people with disabilities.” At The Federalist, Margot Cleveland decries “the court’s faulty analysis of the question of Title VII’s application to transgender persons.” At First Things, Hadley Arkes calls the majority’s reasoning “a morally empty jurisprudence.” Pam Karlan, who argued Bostock on behalf of the plaintiff, discusses the decision with Joseph Bankman at Stanford Law School’s Legal Aggregate Blog. Additional commentary comes from Gerard Magliocca at PrawfsBlawg, Sean Smith at Ikuta Matata, John Bursch in an op-ed for The Detroit News and John Vlahoplus at The George Washington Law Review’s On the Docket blog. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in  various capacities, is counsel on an amicus brief in support of respondent Stephens in Harris Funeral Homes v. EEOC, which was decided along with Bostock.]


  • At Crime & Consequences, Kent Scheidegger comments on the court’s decision earlier this week to stay the execution of a Texas death-row inmate challenging the state’s refusal to allow him to have a spiritual advisor with him in the execution chamber.
  • At On the Docket, Emily Hammond writes that although Monday’s decision in S. Forest Service v. Cowpasture River Preservation Association, that the Forest Service had the authority to grant a right of way for a natural gas pipeline through lands traversed by the Appalachian Trail, was “a technical victory for the [Atlantic Coast Pipeline], the decision left untouched the bulk of the Fourth Circuit’s rulings—including the numerous findings that the Forest Service acted arbitrarily and capriciously with respect to the environmental impacts of the pipeline.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the respondents in this case.]

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Recommended Citation: Edith Roberts, Friday round-up, SCOTUSblog (Jun. 19, 2020, 7:01 AM),