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Petition of the day

By on Sep 25, 2017 at 8:20 pm

The petition of the day is:

17-184

Issue: Whether a generally applicable federal statute, which is silent as to its applicability to Indian Tribes, should nevertheless be presumed to apply to Indian Tribes.

The Supreme Court’s September 25 “long conference” is now behind us; if the past is any guide, the grants out of that conference should be released on Thursday, September 28. The initial grants out of the long conference are the single biggest exception to the ordinary rule that the Supreme Court will relist a case at least once before granting certiorari to give the justices and clerks the time necessary to do a second round of checks for vehicle problems. Presumably, they use the extra time they have over the summer to do that second look, so they don’t need to relist the cases before granting.

Thinking through the issue made me wonder about the timing of the distribution to chambers of cert materials (petition, brief in opposition, reply brief) for the cases the Supreme Court grants out of the long conference. I was curious about whether the initial grants released the same week as the conference were distributed earlier in the summer and the cases granted in October (or later), after relists, were distributed later in the summer. To find out, we analyzed all the long conference grants from the last three terms – every long conference since the court began routinely relisting cases before granting cert.

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On September 28 at 12 pm, the Heritage Foundation will host an event titled, “Is the Immigration Order Constitutional? – Trump v. International Refugee Assistance Project.” Speakers include Will Consovoy and David Fontana; Hans von Spakovsky will serve as moderator. More information about the event, which will be live-streamed, is available at the Foundation’s website.

 
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Today the Supreme Court announced that it had removed the challenges to President Donald Trump’s March 6 executive order, sometimes known as the “travel ban,” from its argument calendar for October. In a one-paragraph order issued this afternoon, the justices also directed the parties to file briefs by October 5 addressing whether the challenges are moot – that is, no longer an actual dispute – in the wake of two developments: Trump’s proclamation yesterday, which indefinitely restricts travel to the United States by nationals of eight countries; and the scheduled expiration of the March 6 order’s temporary suspension of the admission of refugees on October 24.

Yesterday’s proclamation came on the same day that another part of the president’s March 6 executive order, which put a temporary freeze on travel to this country by citizens of six Muslim-majority nations, was due to expire. In his proclamation, Trump explained that the federal government had, as directed in the March 6 order, evaluated the procedures that it used to vet travelers to the United States. And although he indicated that the country as a whole “has improved its capability and ability to assess whether foreign nationals attempting to enter the United States pose a security or safety threat,” Trump nonetheless extended the travel limitations with respect to five of the six countries covered by the original order – Somalia, Syria, Libya, Iran and Yemen – and imposed new restrictions on three more – North Korea, Chad and Venezuela. Those restrictions will go into effect on October 18.

Today’s order by the Supreme Court indicated that the challenges to the March 6 order had been taken off the oral argument calendar “pending further order of the Court.” The justices could eventually restore the disputes to a later argument calendar, but they could also decide that some combination of yesterday’s proclamation and the end of the refugee freeze renders the disputes moot. And that would in turn allow the justices to avoid stepping into the contentious legal and political issues surrounding the travel ban – at least for now.

This post was originally published at Howe on the Court.

Recent years have seen the Supreme Court regularly review criminal immigration cases. That should be no surprise in light of the fact the immigration courts have relied on criminal-removal grounds to remove hundreds of thousands of noncitizens annually from the United States. Sessions v. Dimaya, which will be reargued next week, is another criminal-removal case. However, it is not just any criminal-removal case.

Unlike other recent removal cases decided by the court revolving around the interpretation of the immigration laws – for example, 2017’s Esquivel-Quintana v. Sessions, in which the Supreme Court interpreted the statutory phrase “sexual abuse of a minor” for removal purposes – Sessions v. Dimaya involves a constitutional challenge to a provision of the immigration laws allowing for removal of an immigrant convicted of a crime. Those laws historically have been largely immune from judicial review under what is known as the “plenary power” doctrine, originally announced in 1889, in The Chinese Exclusion Case. Although not yet overruling the doctrine, the court has slowly moved away from a hands-off approach to the judicial review of the immigration laws; just last term, in Sessions v. Morales-Santana, it rejected gender distinctions favoring mothers over fathers in the award of derivative citizenship.

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(This post was updated at 3:13 p.m. to account for the court’s September 25 order granting motions for divided argument by the U.S. solicitor general and the National Labor Relations Board.)

When the justices return to the bench on Monday, October 2, they will hear arguments in a trio of consolidated cases – Epic Systems Corp. v. Lewis, Ernst & Young LLP v. Morris and National Labor Relations Board v. Murphy Oil USA – involving the intersection of two federal laws, both of which date back nearly a century. The first law, the Federal Arbitration Act, provides that arbitration agreements “shall be valid, irrevocable, and enforceable.” The second, the National Labor Relations Act, provides that employees have the right to engage in “concerted activities” for “mutual aid or protection.” But what happens when employers include a clause in their employment contracts that requires employees to arbitrate any disputes with the company individually, and to waive the right to resolve those disputes through either class actions or collective proceedings? That is the question before the justices next week; their answer could have a significant impact on how and whether employer-employee disputes are resolved in the future.

Each of the three cases now before the justices made its way to the Supreme Court along a slightly different path, but all arose when an employee who had entered into an arbitration agreement with an employer filed a class action or collective action in federal court. In June 2010, Sheila Hobson and three other employees of Murphy Oil, which runs gas stations around the country, filed a collective action in which they alleged that they had not received overtime pay that they were owed. At the company’s request, the district court ordered the employees to take their dispute to arbitration, and it dismissed the case after they failed to do so. Hobson went instead to the National Labor Relations Board, which charged Murphy Oil with committing an unfair labor practice. In an earlier case, the NLRB had ruled that arbitration agreements like Murphy Oil’s that require employees to waive their rights to collective or class proceedings violate the employees’ right under the NLRA to “engage in concerted action for mutual aid or protection.” But the U.S. Court of Appeals for the 5th Circuit disagreed, ruling for Murphy Oil.

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Monday round-up

By on Sep 25, 2017 at 7:14 am

Yesterday President Donald Trump announced new restrictions on entry into the United States by nationals from eight countries; the government has asked the Supreme Court to order briefing addressing the effect of the new order on the entry-ban case now pending before the court. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. Additional coverage comes from Jeff Mason and Phil Stewart at Reuters, Michael Shear in The New York Times, Devlin Barrett in The Washington Post, Greg Stohr at Bloomberg, Josh Gerstein and Ted Hesson at Politico, Laura Meckler in The Wall Street Journal, Laura Jarrett and Sophie Tatum at CNN, Greg Toppo at USA Today, CBS News, and Gary Gately at Talk Media News. At Reuters, Lawrence Hurley reports that the new travel restrictions could cause the current entry-ban case to end “in a whimper rather than a bang.” In two posts at Just Security, here and here, Marty Lederman takes a look at the new restrictions and their likely effect on the pending Supreme Court case.

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Trump issues new order on travel

By on Sep 24, 2017 at 11:09 pm

Solicitor General Noel Francisco today notified the Supreme Court that President Donald Trump has issued a new proclamation restricting travel to the United States by citizens from eight countries. The proclamation came on the same day that part of Trump’s March 6 executive order (often known as the “travel ban”) expired, which would have allowed nationals of the six Muslim-majority countries covered by that order to come to the United States. Francisco suggested that the justices order the two sides to file additional briefs addressing the effect of today’s proclamation on the dispute over the March 6 order by October 5, five days before the scheduled oral argument, but the court could opt to substitute its own timetable instead.

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This week at the court

By on Sep 24, 2017 at 12:00 pm

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court’s October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court’s website.

 
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Petition of the day

By on Sep 22, 2017 at 8:20 pm

The petition of the day is:

17-312

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in asserting authority to review respondents’ interlocutory challenge to pretrial physical restraints and in ruling on that challenge notwithstanding its recognition that respondents’ individual claims were moot; and (2) whether the U.S. Court of Appeals for the 9th Circuit erred in concluding that the Fifth Amendment forbids the U.S. Marshals Service for the Southern District of California, with the approval of district judges in that high-volume jurisdiction, from implementing a policy of placing pretrial detainees in physical restraints during non-jury court proceedings.

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