This Week’s Brief: March 2

This week, the Justices heard oral argument in what is likely the most explosive case of the term: June Medical Services LLC v. Russo, a challenge to a Louisiana law that requires physicians who perform abortions to have “admitting privileges” at area hospitals. Another high-profile case that was argued this week is Seila Law, LLC v. Consumer Financial Protection Bureau, the constitutional challenge to the structure of the CFPB. Next, the Court decided Kansas v. Garcia, a case that asked whether the Immigration Reform and Control Act of 1986 preempts certain Kansas identity-theft statutes (the answer is no). More nuggets came in the Court’s cert grant in California v. Texas, the latest lawsuit against the Affordable Care Act’s “individual mandate”; and from a statement by Justice Gorsuch following Monday’s orders list. Here’s another packed summary of the Supreme Court’s proceedings for the week of March 2.


Statistics

This Week:
Decisions: 1
Opinions Relating to Orders: 1
Oral Arguments: 5
Cert. Grants: 3 (for O.T. 2020)
GVRs: 4

O.T. 2019:
Cases Decided: 14
Cases Remaining: 55
Weeks Left in Term: 16

Monday

Orders:

First on Monday morning, the Court released orders from last Friday’s private conference. The Court added three cases to next term’s docket. One was featured on my list of high-profile petitions: California v. Texas. This case concerns the oft-challenged “individual mandate” in the 2010 Patient Protection and Affordable Care Act (ACA). In December 2019, the Fifth Circuit Court of Appeals held that the Tax Cuts and Jobs Act of 2017 (TCJA) overruled the Supreme Court’s decision in NFIB v. Sebelius (2012), which upheld the constitutionality of the individual mandate. The Fifth Circuit then ordered the district court to consider whether the ACA must be struck down. The questions before the Supreme Court are (1) whether Petitioners have standing; if so, (2) whether the TCJA overruled NFIB; and if so (3) whether the individual mandate is severable from the ACA. The other two cases are U.S. Fish & Wildlife Service v. Sierra Club, Inc., a case involving a Freedom of Information Act request for environmental records from the Fish and Wildlife Service; and Borden v. United States, yet another Armed Career Criminal Act case. The cases will be argued next term, with decisions coming by July 2021.

The Court granted, vacated, and remanded four cases, two in light of last week’s decisions in Hernández v. Mesa and Holguin-Hernandez v. United States, and two in light of last term’s decision in Rehaif v. United States (2019). The Court also allowed the U.S. Solicitor General to argue Google LLC v. Oracle, Inc., a significant copyright dispute set for oral argument on March 24.

One order elicited a statement from Justice Gorsuch. Some context-setting is necessary first. The Court denied cert for Guedes v. Bureau of Alcohol, Tobacco, Firearms, & Explosives (ATF), a case blending bump stocks and agency deference. In December 2018, the ATF promulgated two new administrative rules (27 C.F.R. §§ 478.11 & 479.11that expanded the definition of “machine guns”—the possession of which is criminalized under two federal statutes (26 U.S.C. §5845(b)18 U.S.C. § 922(o))—to include bump stocks. Though the rule was challenged, the district and appeals courts declined to issue an injunction against it. The appeals court relied on the Supreme Court’s 1984 decision in Chevron U.S.A., Inc. v. Natural Resources Defense CouncilInc., which held that courts should defer to an executive agency’s reasonable interpretation of a term in a statute which applies to the agency. The court of appeals deferred to the ATF’s interpretation of “machine guns” to include bump stocks, deemed that interpretation reasonable, and thus declined to put the rule on hold. The twist? The federal government never actually relied on Chevron deference when it argued the case.

Gorsuch takes issue with this. “[O]ne thing should be clear,” he says in his statement: “Contrary to the court of appeals’ decision in this case, Chevron . . . has nothing to say about the proper interpretation of the law before us.” The federal government “expressly waived reliance on Chevron,” Gorsuch argues; in effect, the appeals court used it sua sponte. Moreover, the law at issue involves criminal sanctions for owning machine guns. The Court “has ‘never held that the Government’s reading of a criminal statute is entitled to any [Chevron] deference,'” Gorsuch notes (quoting United States v. Apel (2014)).

In any event, Gorsuch would like to hear from other courts of appeals before taking up a case like this. “But waiting should not be mistaken for lack of concern,” he closes.


Oral Arguments:

Following the orders list, the Court listened to arguments in two cases. First up was Nasrallah v. Barr, an immigration procedure case sporting a circuit split. The case asks whether federal appeals courts have jurisdiction to review factual findings that underlie an immigration court’s denial of a request for withholding of removal. It also implicates a certain federal immigration statute (8 U.S.C. §1252(a)(2)(C)) which says that “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed” a certain criminal offense listed in neighboring provisions. The oral argument in Nasrallah is available via audio and transcript.

The second case was Department of Homeland Security v. Thuraissigiam. Vijayakumar Thuraissigiam, a Sri Lankan national, illegally crossed the U.S.–Mexico border and was apprehended by U.S. Customs and Border Patrol agents. After several immigration hearings, the U.S. denied Thuraissigiam’s asylum claims and placed him in expedited removal proceedings. Thuraissigiam then invoked the immigration habeas corpus provision (8 U.S.C. §1252(e)(2)), arguing that the expedited removal order “violated his statutory, regulatory and constitutional rights.” A federal district court disagreed, upholding the expedited removal order, but the Ninth Circuit Court of Appeals reversed. It held that, while §1252(e)(2) does not allow for judicial review of Thuraissigiam’s habeas appeal, the provision violates his rights under the Constitution’s Suspension Clause, which provides that “[t]he privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it” (Art. I §9, cl. 2). The question the Supreme Court will now decide is whether §1252(e)(2), as applied to Thuraissigiam’s specific immigration case, violates the Suspension Clause. To answer yes, the Court would first have to conclude that the Suspension Clause applies to noncitizens—a conclusion the federal government disputes. The oral argument in Thuraissigiam is available via audio and transcript.

Tuesday

First thing on Tuesday, the Court released an opinion in an argued case:

Kansas v. Garcia
Justice Alito wrote the Court’s opinion for a 5:4 majority in Kansas v. Garcia. The Immigration Reform and Control Act of 1986 (IRCA) prohibits employers from hiring a non-citizen who knows that he or she is not authorized to work in the U.S. (8 U.S.C. §§ 1324a(a)(1) & (h)(3)). To do this, IRCA requires both the employer and the non-citizen employee to fill out what’s called an I-9 Form. The employee’s form must include basic personal information, such as name, address, birth date, Social Security number, etc. (see id., §(b)(1) et seq.). The information contained in the I-9 Form may be used only for the purposes of enforcing IRCA (id., §§(b)(5) & (d)(2)(F)). Finally, IRCA expressly “preempt[s] any State or local law imposing civil or criminal sanctions . . . upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens” (id., §(h)(2)).

Kansas prosecuted three non-citizens for identify theft under state law. Specifically, Kansas alleged that the three defendants used false Social Security numbers on federal and state tax-withholding forms. The defendants had also used the same stolen Social Security numbers on their I-9 Forms. The defendants argued that IRCA barred Kansas from using any information contained on an I-9 Form—including the falsified Social Security numbers—for the purposes of any legal proceeding outside of IRCA. The Kansas Supreme Court agreed in a splintered decision, holding that IRCA expressly preempts Kansas from using any of the information entered on the defendants’ I-9 Forms.

Justice Alito, however, disagrees. (Chief Justice Roberts and Justices Thomas, Gorsuch, and Kavanaugh joined Alito in the majority opinion.) First, Alito points out that IRCA “expressly ‘preempt[s] any State or local law imposing civil or criminal sanctions . . . upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens'” (8 U.S.C. §1324a(h)(2)) (emphasis added). This does not say anything about preempting laws that impose “sanctions on employees or applicants for employment” (emphasis added). Moreover, to interpret IRCA as mandating that absolutely no information “contained in” the I-9—including basic information like a person’s name, date of birth, etc.—”could ever be used by any entity or person for any reason” except that of enforcing IRCA “is flatly contrary to standard English usage.” Someone’s email address, to use Alito’s example, is said to be “contained in” a great many places: home computer, work computer, friends’, relatives’, and colleagues’ computers, and so on. Suppose someone subscribes to this blog by entering their email address into the field on the right side of this page, at which point the address is logged into the system records. Then, that person sends an email to a work colleague. “No one would say that [this person] has used information contained in the files of the” blog’s server, Alito maintains. Were the Court to hold otherwise, “strange consequences would ensue.” So, it is clear that IRCA does not expressly preempt the Kansas identity-theft statutes.

But the non-citizens alternatively argued that IRCA impliedly preempts them. Specifically, the defendants contend that the Kansas statutes, as applied to them, fall into a field that is reserved exclusively for the federal government. In other words, they argue that Congress has legislated so extensively in this area that it has left “no room for supplementary state legislation” (quoting R. J. Reynolds Tobacco Co. v. Durham Cnty. (1986)).

But “that is certainly not the situation here,” says Alito. First of all, what even is the “field” that is said to be fully occupied by Congress and yet encroached upon by the Kansas statutes? The non-citizens evidently had trouble identifying it. They first said it was “the field of fraud on the federal employment verification system.” However, “the submission of tax-withholding forms is not part of that system,” Alito counters. Alternatively, the non-citizens generalized that suggestion to say the “field relating to the federal employment verification system” (emphasis added). But again, says Alito, “[t]he submission of tax-withholding forms is fundamentally unrelated to the federal employment verification system” since those forms “serve entirely different functions.” So, the field preemption suggestion is also out. As a result, Alito holds that IRCA, as it relates to employees, neither expressly nor impliedly preempts certain Kansas identity-theft statutes.

Justice Thomas (joined by Justice Gorsuch) penned a short concurrence. He agrees fully with Alito’s majority opinion. He simply writes separately to underscore his view that a certain part of the Court’s preemption jurisprudence—the “purposes and objectives” of the laws at issue—should be “explicitly abandoned.” In Thomas’ mind, the principle of preemption (which stems from the Constitution’s Supremacy Clause (Art. VI, cl. 2)) is clear: “[F]ederal law pre-empts state law only if the two are in logical contradiction” (quoting his concurrence in Merck Sharp & Dohme Corp. v. Albrecht (2019)). But wielding preemption on basis of the “purposes and objectives” of the laws at issue, he argues, “impermissibly rests on judicial guesswork about ‘broad federal policy objectives, legislative history, or generalized notions of congressional purposes that are not contained within the text of federal law'” (quoting his concurrence in Wyeth v. Levine (2009)).

Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, filed an opinion concurring in part and dissenting in part. Breyer agrees that IRCA does not expressly preempt the Kansas identity-theft statutes, but he would hold that IRCA impliedly preempts them. First, what is the “field” that Congress has occupied? Breyer says it is a “narrow” one: that of “policing fraud committed to demonstrate federal work authorization.” Based on the text of the statute, Breyer thinks IRCA exclusively reserves to the federal government “the power to prosecute people for misrepresenting material information in an effort to convince their employer that they are authorized to work in this country.” IRCA also has “two carefully calibrated sets of sanctions for noncompliance”; has already “expressly preempt[ed] any State or local law imposing civil or criminal sanctions on . . . employers” (internal quotation marks omitted); and has “ma[de] it a federal crime for anyone to commit fraud for the ‘purpose of satisfying’ the Act’s requirements.” Given this “detailed and delicate design,” Breyer opines, it seems Congress has already legislated so extensively in this field that there is no room for Kansas law to supplement it. Thus, Breyer would hold that IRCA impliedly preempts the Kansas identity theft statutes at issue.


Oral Arguments:

Next, the Court heard arguments in two cases. The first was a big one, Seila Law, LLC v. Consumer Financial Protection Bureau (CFPB), which entails a constitutional challenge to the structure of the CFPB. The Constitution vests the Executive Power in the president, who must “take Care that the Laws be faithfully executed” (Art. II §1, cl. 1). This naturally means the president must “keep [federal] officers accountable—by removing them from office, if necessary,” as the Supreme Court noted in Free Enterprise Fund v. Public Co. Accounting Oversight Board (2010). That established, consider the structure of the CFPB. It is an “independent bureau” in the Federal Reserve System (12 U.S.C. §5491(a)). It is headed by a single Director, who, after being appointed by the president and confirmed by the Senate, serves a a five-year term (or longer if a successor has not yet been confirmed). The Director may be removed by no one but the president, and may only be removed for “inefficiency, neglect of duty, or malfeasance in office” (12 U.S.C. §5491(c)(3)). Finally, consider the CFPB’s power. It possesses “all authority to prescribe rules or issue orders or guidelines pursuant to any [f]ederal consumer financial law” (12 U.S.C. §5581(a)(1)(A)). It can issue administrative regulations that identify “any unfair, deceptive, or abusive act or practice” by consumer-finance actors (12 U.S.C. §§ 5531(a), (b) & 5536(a)(1)(B)). It has broad enforcement powers, such as conducting investigations, issuing subpoenas, and filing federal lawsuits (12 U.S.C. §§ 5562, 5564(a), (f)). Finally, the CFPB is also shielded from the normal Congressional appropriations and oversight process. All this leads one to wonder whether the CFPB presents an impermissibly high hurdle for the president’s exercise of his constitutional duties. This is the question the Justices must decide (whether the CFPB’s structure is unconstitutional). If the answer is yes, the Court will also decide whether the provision that lays out the qualifications for the Director’s removal can be severed from the rest of the CFPB statute, or instead whether the entire structure of the agency should be invalidated. The oral argument in Seila Law is available via audio and transcript.

The second case heard on Tuesday was Liu v. Securities and Exchange Commission (SEC), a securities law case. When the SEC sued Mr. Liu (and the other petitioners), it sought “disgorgement” of all the funds Liu raised from investors. (“Disgorgement” is simply the repaying of illicitly-gained funds.) Liu countered that, pursuant to certain federal statutes, the SEC may only seek injunctive relief, equitable relief, or civil monetary penalties in cases like the one here (see 15 U.S.C. §§ 77t(b), (d), 78u(d)(1), (3), (5)). The SEC replied that disgorgement is indeed a form of “equitable” relief, despite the fact that the Supreme Court in Kokesh v. SEC (2017) held that disgorgement is inherently a form of punitive relief. Thus, the question before the Court is whether the SEC can seek disgorgement as a form of “equitable relief” for a violation of securities laws. The oral argument in Liu is available via audio and transcript.

Wednesday

The Court heard oral argument in only one case on Wednesday—and it was by far the biggest headline-maker in Washington all week. The case is June Medical Services LLC. v. Russo, and it involves a Louisiana state law that requires physicians who perform abortions to have “admitting privileges” at nearby hospitals. In Whole Woman’s Health v. Hellerstedt (2016), the Court struck down as unconstitutional a similar Texas statute, holding that it imposed an “undue burden” on a woman seeking an abortion in violation of the Court’s decisions in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) and Roe v. Wade (1973). The question before the Court is whether Louisiana’s law is principally the same as the Texas law, and thus must be struck down under this line of cases; or instead whether there are differences between the statutes such that the Louisiana law may stand. The oral argument in June Medical Services is available via audio and transcript.

Thursday

On Thursday evening the Court declined to stay the execution of Nathaniel Woods, an Alabama death row inmate who was convicted of capital murder in 2005 for shooting three Birmingham, AL police officers. There were no noted dissents.

Friday

On Friday the Court met for its weekly private conference, at which it reviews the petitions on its docket and debates whether to grant review for any of them. We can expect more news from this conference in the Court’s next orders list on Monday. Some high profile cases the Justices are considering include:

  • Box v. Planned Parenthood of Indiana & Kentucky, Inc. This case challenges an Indiana state abortion law that requires women who seek an abortion to, among other things, undergo a fetal ultrasound eighteen hours before the abortion is performed. The question presented is whether such an ultrasound requirement violates a woman’s Fourteenth Amendment rights.
  • Arlene’s FlowersInc. v. Washington. This case is a mirror-image to that of Masterpiece CakeshopLtd. v. Colorado, on whose merits the Court punted in 2018. The questions before the Court are (1) whether a state violates a floral designer’s Free Exercise and Free Speech rights by forcing her to create custom floral arrangements celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and (2) whether the Free Exercise Clause’s prohibition on religious hostility applies to the executive branch.
  • United States v. California. This case involves the Trump administration’s challenge to California’s statewide “sanctuary” law. The law prohibits state law-enforcement officers from providing information about immigrants (both legal and illegal) to federal immigration officials. The question before the Court is whether federal immigration law preempts California’s sanctuary law—and others like it in cities and states around the country—under the Supremacy Clause of the Constitution.
  • Worman v. Healey. This case concerns a Massachusetts state law that bans, inter alia, semiautomatic “assault weapon[s]” and magazines capable of accepting 10+ rounds of ammunition. The question presented is whether that law violates the Second Amendment to the Constitution.
  • Malpasso v. Pallozzi. This is a constitutional law case asking whether a state law that categorically prohibits residents from carrying handguns outside the home for self-defense violates the Second Amendment.
  • Reisman v. Associated Faculties of the University of Maine. This case mixes labor unions with the Free Speech Clause of the First Amendment. The question presented is whether it violates the First Amendment to designate a labor union to represent and speak on behalf of public-sector employees who object to its advocacy.
  • Territory of Guam v. Davis. This case concerns a unique Fifteenth Amendment challenge to a political referendum Guam undertook under the 2000 Plebiscite Law. The federal territory allowed only “native inhabitants of Guam” to vote on the island’s future political status with the United States. The question presented is whether the Fifteenth Amendment permits Guam to invite only “native inhabitants of Guam” to participate in a potential political-status plebiscite that would yield only a nonbinding, symbolic expression of self-determination preferences.
  • Collins v. Mnuchin. This case concerns a constitutional challenge to the structure of the Federal Housing Finance Agency (FHFA), a mirror-image case to that of Seila Law v. CFPB, the challenge to the structure of the Consumer Financial Protection Bureau. The questions presented in Collins are (1) whether the structure of the FHFA violates the separation of powers, and if so (2) whether the actions of the FHFA must be annulled and the statute creating its structure struck down.
The Week Ahead

The Justices are now between their February and March sittings. As a result, no cases are being argued next week. The only scheduled proceedings are the release of orders on Monday from this week’s private conference.

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