Brief in Recess: September 11

Earlier this summer, the Supreme Court stayed an injunction against the Trump Administration, which had barred it from using nearly $2.5 billion in interdepartmental transfer funds for construction of the border wall. Tonight was Part II. The high court lifted another injunction that had been issued against the Administration, this one concerning the latest asylum rule promulgated in July. Justices Sotomayor and Ginsburg dissented. With less than a month until the Court is back in session, it seems clear the Justices are not shy of acting on their summer shadow docket. Here’s a summary of the case, the Court’s order, and Justice Sotomayor’s dissent.

Read More »

Brief in Recess: July 26

Remember when I remarked in my final brief for O.T. 2018 that the Supreme Court is unlikely to grant any cases or issue any decisions until it is back in session in October? Oops. To quote Daniel Day-Lewis’ character in Lincoln: “I’ve found that prophesying is one of life’s less-profitable occupations.” I should have listened.

Late Friday night, by a 5:4 majority, the Supreme Court stayed a June ruling issued by a federal district court in California. The district court had issued a permanent injunction against the Trump administration, barring it from using any of the nearly $2.5 billion that had been transferred to the Department of Defense’s counternarcotics fund to pay for the construction of the border wall between the United States and Mexico. The Administration appealed that ruling to the Ninth Circuit Court of Appeals, but also sought a stay of the district court’s injunction. The Supreme Court’s order permits the Administration to use those funds for border wall construction unless or until the Ninth Circuit Court of Appeals rules on the Administration’s appeal of the full case. For more on the Supreme Court’s decision, here’s a quick brief.

Read More »

The “Travel Ban”: Trump v. Hawaii

Entering the week of June 24, the Justices had yet to release decisions in six argued cases. With the release of only two such cases Monday morning (in which the Court left three highly-charged cases out to dry), it was evident that the Court would not conclude its term with a whimper. Indeed, the Justices did not fail to deliver on this notion, releasing opinions yesterday morning in National Institute of Family & Life Advocates v. Becerra (No. 16-1140), a First Amendment challenge to California’s Reproductive FACT Act, and perhaps the most anticipated ruling of the term, Trump v. Hawaii (No. 17-965), the multi-faced challenge to President Trump’s “travel ban” proclamation from September of 2017.

After the Court’s release of its decision in National Institute of Family & Life Advocates v. Becerra (see my review of the opinion here), Chief Justice Roberts announced that he had the decision in Trump v. Hawaii. By a 5:4 tally, the Supreme Court upheld President Trump’s Proclamation No. 9645 of September 27, 2017, which restricted immigration of certain aliens from eight specific countries. This was the third iteration of the immigration order. For the Court, Roberts was joined by Justices Kennedy, Thomas, Alito, and Gorsuch.Read More »