Tuesday round-up

By on Jul 18, 2017 at 7:29 am

At Education Week’s School Law Blog, Mark Walsh reports that when Justice Neil Gorsuch filled in yesterday for Justice Anthony Kennedy at the annual conference of the U.S. Court of Appeals for the 9th Circuit, Gorsuch “joined the list of his colleagues—both current and retired justices—who have taken up the cause of improving civics education.” At the Associated Press, Sudhin Thanawala reports that Gorsuch “couldn’t escape discussion of the president’s travel ban — and even the president” at the conference, “where a student essay winner compared the ban to Japanese internment and the producer of the musical ‘Hamilton’ said the cast was scared following Trump’s election victory.”

In The New York Times, Adam Liptak reports that “[g]ay rights groups hope to score one more victory” before Justice Anthony Kennedy leaves the court, and that the “goal this time is nationwide protection against employment discrimination.” In The Washington Post, Robert Barnes reports that a Supreme Court ruling at the end of last term has engendered speculation about whether “Chief Justice John G. Roberts Jr. [has] embraced the court’s same-sex marriage decision that he so passionately protested two years ago.” At the New Civil Rights Movement, David Badash discusses a cert petition filed on behalf of “a Washington state florist who refused to … provide a floral arrangement for a same-sex couple’s wedding.”

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Petitions of the day

By on Jul 17, 2017 at 11:22 am

The petitions of the day are:


Issue: Whether service advisors at car dealerships are exempt under 29 U.S.C. § 213(b)(10)(A) from the Fair Labor Standards Act’s overtime-pay requirements.


Issue: Whether a plaintiff who has been retaliated against under 29 U.S.C. § 623(d) of the Age Discrimination in Employment Act is able to seek compensatory and punitive damages as potential remedies for her claim.


Should judges rely on a president’s public pronouncements to resolve cases? Cardozo Law School professor Kate Shaw has authored the first article systematically addressing the role that a president’s statements should play in court. The topic is timely: The U.S. Courts of Appeals for both the 4th and 9th Circuits faced that question when addressing challenges to the Trump administration’s travel ban, and the Supreme Court will have to do so as well when it reviews those decisions this fall.

The issue is not new. As Shaw explains, courts have relied on presidents’ statements to decide a host of legal questions in recent years. For example, a California district court relied on a statement in one of President Barack Obama’s speeches to conclude that the military’s Don’t Ask, Don’t Tell policy did not protect national security, despite contrary assertions in government briefs. Likewise, a Texas district court cited Obama’s statements to support the conclusion that granting deferred action to millions of unauthorized immigrants violated the Administrative Procedure Act. Today, President Donald Trump’s campaign statements, speeches and press appearances have played a central role in litigation challenging the legality of the travel ban, even as government attorneys argue that those statements should be given no weight. (Shaw made the interesting choice to focus her article on presidents’ spoken words, and thus she does not address whether courts should give any weight to Trump’s tweets.)

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Monday round-up

By on Jul 17, 2017 at 7:18 am

After a Hawaii district judge ruled that the federal government’s interpretation of the Supreme Court’s June 26 ruling partially reinstating the president’s executive order on immigration was unduly restrictive, the federal government on Friday asked the Supreme Court to clarify the June 26 ruling. Amy Howe covers the government’s request for this blog. Additional coverage comes from Lyle Denniston at his eponymous blog, Greg Stohr at Bloomberg, Julia Edwards Ainsley and Lawrence Hurley at Reuters, Richard Wolf at USA Today, and Steven Mazie in The Economist. In another post at his blog, Lyle Denniston charts the byzantine path the legal maneuverings over the travel ban have taken, observing that though “disputes in the federal courts often unfold in a familiar pattern,” the “judicial flow chart” in these cases “has looked more like a diagram for a ping-pong match.”

At Take Care, Leah Litman takes issue with each of the government’s arguments in favor of its restrictive interpretation of the Supreme Court’s order. At Just Security, Marty Lederman observes that “resolution of the government’s motion might well determine whether tens of thousands of people, most of them refugees fleeing terrible conditions, will be able to enter the United States.” At ACSblog, Shoba Wadhia argues that “[l]aw aside, the debate around ‘bona fide relationship’ raises fundamental questions about culture, identity and family,” and that “[b]anning or restricting a grandparent or aunt based on the absence of a ‘bona fide’ relationship undermines not only the jurisprudence around family but also the experiences of first and second generation immigrants living in the United States.”

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(UPDATE: The Supreme Court has ordered the challengers to respond to the government’s motion for clarification by 12 p.m. on Tuesday, July 18.)

The battle over President Donald Trump’s March 6 executive order, often referred to as the “travel ban,” returned to the Supreme Court on Friday night, as the federal government asked the justices to clarify exactly who should be allowed to enter the United States under the order. This week’s ruling by a federal judge in Hawaii, the Trump administration complained, interpreted a June 26 order by the Supreme Court, allowing the government to implement the March 6 order, so expansively that it effectively read any limits out of the June 26 order. The Supreme Court therefore should step in, the government told the justices, because “the correct interpretation” of the justices’ order “is a legal question that only this Court can authoritatively resolve.” Continue reading »


Lee Rudofsky is the solicitor general of Arkansas. Arkansas, through its Attorney General Leslie Rutledge, submitted an amicus brief in support of the federal government in these cases.

We are all familiar with the old adage that hard cases make bad law. But perhaps the more appropriate aphorism for modern-day courts is that high-profile political cases make bad law. They present great temptation to stretch the law, often in a noble effort to maintain institutional credibility by sidestepping thorny and divisive legal issues. But it is precisely in such cases that we must insist that our courts – especially our highest court – strictly follow the law if we are to maintain the respect for judicial pronouncements that runs so deep in American culture.

No one would dispute that the travel ban/pause cases are political cases of the highest profile. And thus it should probably come as no surprise that the law has been stretched by courts at all levels as they attempt to resolve these cases. But it’s worth briefly shining a spotlight on two liberties the U.S. Supreme Court has taken to date that offer some cause for concern.

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Event announcements

By on Jul 14, 2017 at 3:07 pm

Multiple events this summer at the Chautauqua Institution in Chautauqua, New York, will involve the Supreme Court and its history.

On July 26 at 3:30 p.m. Jeffrey Rosen will give a lecture on Justice Louis Brandeis.

On July 28 at 3:30 p.m., John Barrett will give a lecture on Justice Robert Jackson.

On August 16 at 4 p.m., Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit will give the 13th annual “Robert H. Jackson Lecture” on the Supreme Court.

More information about these events is available on the institution’s webpage.


Frank Trinity is the chief legal officer of the Association of American Medical Colleges. The AAMC filed an amicus brief opposing the government’s stay applications in Trump v. IRAP and Trump v. Hawaii.

Why, you may ask, are America’s medical schools and teaching hospitals involved as “friends of the court” in the travel ban case?

The answer begins with the fact that our nation relies upon a significant number of physicians, scientists and other health professionals from foreign countries to care for patients, address health-professional shortages and contribute to breakthroughs in biomedical research. Over the past several decades, Congress has established multiple pathways to attract highly-trained professionals, provided that their backgrounds and qualifications are carefully screened. More than one in four practicing physicians were born in another country. Many of these physicians practice in rural and other underserved areas. Last year, all six American winners of the Nobel Prize in economics and scientific fields were immigrants. Since 2000, immigrants have been awarded 40 percent of the Nobel Prizes won by Americans in chemistry, medicine and physics.

As a matter of policy, then, barring or discouraging health professionals from coming to the United States could set back cutting-edge research and exacerbate a growing shortage of physicians, nurses, mental-health professionals and dental-health professionals, particularly as the number of older Americans increases in the decades ahead.

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Petitions of the day

By on Jul 14, 2017 at 10:01 am

The petitions of the day are:


Issues: (1) Whether military commissions’ assumption of the federal courts’ subject-matter jurisdiction over wholly domestic crimes, such as conspiracy, violates Article III’s reservation of the “trial of all crimes” to the judiciary; (2) whether the Military Commissions Act’s codification of crimes not otherwise recognized as war crimes under international law was intended to apply retroactively and, if so, whether that violates the ex post facto clause; and (3) whether the Military Commissions Act’s establishment of a segregated criminal justice system in which only non-citizens are subject to military commission jurisdiction violates the constitutional guarantee of equal justice under law.


Issues: (1) Whether the majority of the U.S. Court of Appeals for the District of Columbia Circuit erred in extending the doctrine associated with Schlessinger v. Councilman to trial by military commission, when doing so foreclosed a core habeas corpus claim; (2) whether the “extraordinary circumstances” exception to abstention is met when a capital defendant can show that trial will cause irreparable injuries that flow directly from respondents’ own misconduct and, in particular, respondents’ decision to subject him to years of “physical, psychological, and sexual torture”; and (3) whether the U.S. Court of Appeals for the D.C. Circuit’s uniquely restrictive standard, whereby any “open question” of law is categorically unreviewable via mandamus, is inconsistent with the All Writs Act.

Margo Schlanger is the Wade H. and Dores M. McCree Collegiate Professor of Law at the University of Michigan Law School and the former head of the Department of Homeland Security’s Office for Civil Rights and Civil Liberties. She is among the plaintiffs’ counsel in Arab American Civil Rights League v. Trump, a case in the Eastern District of Michigan challenging the constitutionality of the Trump travel-ban executive order. That case is currently stayed pending the outcome in the Supreme Court of Trump v. International Refugee Assistance Project and Trump v. Hawaii.

For over a quarter of a century, scholars have been calling on the Supreme Court to jettison the so-called plenary-power doctrine, or at least to disavow the strongest form of that doctrine, which, to quote a recent summary by Peter Spiro, “give[s] the political branches the judicial equivalent of a blank check to regulate immigration as they see fit.”

I don’t know how the Supreme Court will decide the Trump v. IRAP/Trump v. Hawaii cases. I think Executive Order 13780 is unconstitutional, but I wouldn’t venture to predict what the court will find, if it reaches the merits of the case at all. But whatever happens in the Supreme Court, I predict that in constitutional culture, the Muslim-ban cases will stand for the much-to-be-desired demise of the strong form of the plenary-power doctrine.

The plenary-power doctrine was born in 1889, in Chae Chan Ping v. United States, usually referred to as the Chinese Exclusion Case. The case involved a law remarkably similar to the first executive order in the current travel-ban litigation. That executive order denied admission into the United States to all nationals of seven majority-Muslim countries, including even long-term U.S. immigrants who had left the country under a legal regime that allowed them to return easily. Similarly, the Scott Act challenged in the Chinese Exclusion Case ramped up the discrimination of the Chinese Exclusion Act by disallowing not just new Chinese immigration but return to the United States of prior immigrants who had left with a promise that they would be readmitted.

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