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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.

The Trump administration had cited national-security concerns when it issued the March 6 order, which directed agencies in the federal government to freeze travel from Sudan, Syria, Iran, Yemen, Somalia and Libya to give the government time to evaluate the procedures that it used to vet travelers from those countries. Today’s order indicated that the U.S. government “has improved its capability and ability to assess whether foreign nationals attempting to enter the United States pose a security or safety threat.” “Our Nation,” Trump emphasized, “is safer as a result of this work.” However, Trump continued, several countries “remain deficient.” Until these deficiencies are corrected, Trump explained, the entry into the United States of nationals from eight countries – Iran, Libya, Yemen, Somalia and Syria (all of which were covered by the March 6 order), along with North Korea, Venezuela and Chad (which were not covered by the order) – will be restricted.

Trump’s proclamation outlines, in some detail, the new limitations on travelers from each of the affected countries. For example, only students and visitors coming to the United States under an exchange program will be allowed to come to the United States from Iran, and even those travelers will be subjected to additional screenings. The new order bars travelers who are Syrian and North Korean nationals, while some Venezuelan government officials and their families will also be excluded from the United States.

The proclamation will go into effect on October 18 for most of the foreign nationals it covers. Trump’s proclamation did not address another part of his March 6 order – the freeze on the admission of refugees into the United States.

This post was originally published at Howe on the Court.

This week at the court

By on Sep 24, 2017 at 12:00 pm

On Monday, the justices will meet for their September 25 conference. 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.

Arguing that two Missouri abortion requirements are “virtually identical” to the Texas regulations that the Supreme Court struck down in 2016, Planned Parenthood asked the Supreme Court to reinstate a lower court’s order blocking the state from enforcing the requirements.

After the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt in 2016, Planned Parenthood went to federal district court in Missouri, arguing that two of the state’s abortion requirements violate the Constitution: the requirement that physicians providing abortions have admitting privileges at a hospital within 30 miles of the clinic and the requirement that abortion facilities be licensed as surgical centers. The combined effect of the two requirements, Planned Parenthood tells the justices, is that there are only two facilities providing abortions in Missouri, “a state that covers nearly 70,000 square miles and has a population of over six million people.” And that in turn, Planned Parenthood argues, “imposes enormous burdens on women seeking abortion” in the state, particularly women who are poor, have medical conditions or are victims of abuse.

The district court temporarily blocked the state from enforcing the two requirements, reasoning that both rules bore a close resemblance to the Texas rules that the Supreme Court deemed unconstitutional in Whole Woman’s Health. The state appealed the district court’s order to the U.S. Court of Appeals for the 8th Circuit and asked that court to stay the lower court’s order pending appeal. After the 8th Circuit declined to freeze the district court’s order, the state went to the full 8th Circuit, which agreed to do so.

Today Planned Parenthood asked the Supreme Court to step in, arguing that if it does not, three other health centers “will remain unable to provide abortion services pending resolution of the appeal before the Eighth Circuit—even though the laws preventing them from doing so are surely unconstitutional.” The group’s filing was directed to the court’s newest justice, Neil Gorsuch, who handles emergency appeals from the geographic region that includes Missouri. Gorsuch can handle the request himself or refer it to the full court; he can, and is likely to, also direct the state to respond before ruling on Planned Parenthood’s application.

This post originally appeared at Howe on the Court.

 
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On September 27 at 3:30 p.m. PDT, UC Hastings College of the Law will host its annual Supreme Court review and preview. Panelists include Vince Chhabria, Radhika Rao and Zachary Price; the event will be moderated by Rory Little. More information about the event, which is free and open to the public, is available at the college’s website.

 
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Friday round-up

By on Sep 22, 2017 at 7:28 am

Bloomberg BNA’s Cases and Controversies podcast features a discussion of Epic Systems v. Lewis, in which the court will decide whether employment agreements that ban collective resolution of workplace disputes violate federal employment laws, calling the case “a major showdown between businesses and their workers and the increasing use of arbitration agreements in employment contracts.” In USA Today, Richard Wolf reports that the government’s recent “about-face” in Epic Systems “has created an extremely rare scenario: the Justice Department and National Labor Relations Board, a federal agency, will oppose each other in court”; he concludes that “[b]y all indications now, the case … looks like a 5-4 victory for employers.”

At Take Care, Jim Oleske explores the contested meaning of “general applicability” in the Supreme Court’s free exercise jurisprudence as it relates to the religion-clause issues in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court will decide whether the First Amendment allows a state to require a Christian baker to create a cake for a same-sex wedding. At The World and Everything In It (podcast), Mary Reichard hears from eight lawyers who filed amicus briefs asking the justices to hear a similar appeal from a florist alongside the baker’s case.

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Petition of the day

By on Sep 21, 2017 at 8:20 pm

The petition of the day is:

17-301

Issues: (1) Whether a school policy requiring boys and girls to use separate bathroom facilities that correspond to their biological sex is sex stereotyping that constitutes discrimination “based on sex” in violation of Title IX; and (2) whether a school policy requiring boys and girls to use separate bathroom facilities that correspond to their biological sex is a sex-based classification triggering heightened scrutiny under an Equal Protection analysis.

Thursday round-up

By on Sep 21, 2017 at 7:02 am

In The Wall Street Journal, Jess Bravin reports on Tuesday’s confirmation of Noel Francisco as solicitor general, noting that “[t]he Senate divided 50-to-47 along partisan lines, reflecting a distrust among some Democrats toward any lawyer—even an accomplished professional—who would step forward to pursue President Donald Trump’s legal agenda.” In The National Law Journal (subscription or registration required), Marcia Coyle and Mike Scarcella offer “a snapshot of things to know about Francisco and matters on his plate as he prepares to step up to the lectern at the high court.”

At The Economist, Steven Mazie looks at Epic Systems v. Lewis and its two accompanying cases, in which the court will decide whether employment agreements that ban collective resolution of workplace disputes violate federal employment laws, noting that “[i]n a plot twist brought on by the executive branch’s ideological about-face on January 20th of this year, the solicitor general’s office filed an amicus brief backing the companies, … revers[ing] the office’s prior position from September 2016, an uncommon and awkward switcheroo that the justices typically frown upon.” In an op-ed for Newsweek, Ceilidh Gao contends that a ruling for the employers in Epic Systems would harm “individual workers [who] might not be owed much on an individual basis, making it difficult if not impossible for them to seek justice if they can’t join together with coworkers.”

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Petition of the day

By on Sep 20, 2017 at 8:20 pm

The petition of the day is:

17-294

Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that evidence can be material for purposes of a 42 U.S.C. § 1983 claim alleging deprivation of compulsory process or denial of a fair trial when the defendant was acquitted at trial.

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