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U.S. Supreme Court allows DHS to enforce public charge rule in Illinois

The U.S. Supreme Court on February 21 voted 5-4 to allow the U.S. Department of Homeland Security (DHS) to enforce in Illinois a rule that allows the federal government to deny immigrants a visa or a green card if they rely on government assistance. The court let DHS enforce the same rule elsewhere in the U.S. following a January 27 order.

DHS issued the final rule detailing how federal agencies determine the inadmissibility of immigrants likely to become public charges (e.g. dependent on government assistance) in August 2019. Five federal judges later issued injunctions blocking the rule from taking effect. Appellate courts lifted three of the injunctions in December 2019, but a nationwide injunction from the U.S. District Court for the Southern District of New York and a statewide injunction from the U.S. District Court for the Northern District of Illinois remained in effect until the January 27 and February 21 orders from the U.S. Supreme Court.

DHS requested that the U.S. Supreme Court stay the statewide injunction issued by Judge Gary Feinerman of the U.S. District Court for the Northern District of Illinois. In his October 2019 order, Judge Feinerman held that the DHS rule would impose financial consequences on Cook County. He also held that the county would likely succeed in defending the argument that DHS exceeded its legal authority and acted arbitrarily and capriciously when it made the public charge rule.

The U.S. Supreme Court granted the request for a stay. Justices John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh ruled in favor of the stay while Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor dissented. Sotomayor filed a dissenting opinion with the order, arguing, “It is hard to say what is more troubling: that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.”

The decision allows the rule to take effect nationwide pending a final decision in _Wolf v. Cook County, Ill._ The U.S. Court of Appeals for the Seventh Circuit heard oral argument in the case on February 26.

Click here to learn more about rulemaking, or click here to learn about the related U.S. Supreme Court order.

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U.S. Supreme Court includes birth control case on April argument calendar

A U.S. Supreme Court case scheduled for April 29 could clarify when notice-and-comment procedures satisfy the requirements of the Administrative Procedure Act (APA), allowing individuals to challenge more federal laws and regulations on religious grounds.

The case, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania , is about whether the Trump administration had the legal authority to issue rules providing a religious or moral exemption to the contraception mandate created under the Affordable Care Act, commonly known as Obamacare.

In a July 2019 ruling, the U.S. Court of Appeals for the Third Circuit upheld a nationwide injunction that blocked the new exemption rules from going into effect. That court held that the U.S. Department of the Treasury, U.S. Department of Labor, Internal Revenue Service, and U.S. Department of Health and Human Services did not have legal permission to modify the contraceptive requirements developed after Obamacare passed. The Third Circuit also held that the agencies violated APA notice-and-comment requirements.

The APA is a federal law passed in 1946 establishing uniform procedures for federal agencies to propose and issue regulations, a process known as rulemaking. The APA also addresses policy statements and licenses issued by agencies and provides for judicial review of agency adjudications and other final decisions. Under the APA’s informal rulemaking system, agencies must consider written public feedback on proposed rules submitted during a comment period.

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U.S. Supreme Court issues opinions in four cases

On February 25, the Supreme Court of the United States issued opinions for four cases: McKinney v. Arizona, Rodriguez v. Federal Deposit Insurance Corporation, Hernandez v. Mesa, and Monasky v. Taglieri.

In the case McKinney v. Arizona, James McKinney was convicted of first-degree murder and sentenced to death in 1993. The Arizona Supreme Court affirmed the sentence after an independent review. A federal district court denied McKinney’s petition for habeas corpus. On appeal, the 9th Circuit instructed the district court to grant the habeas corpus petition. After another independent review, the Arizona Supreme Court affirmed the death sentences.

In a 5-4 opinion, the U.S. Supreme Court affirmed the Arizona Supreme Court’s ruling, holding that a state appellate court, rather than a jury, may conduct a reweighing of aggravating and mitigating circumstances on habeas corpus review in cases concerning the death penalty. Justice Brett Kavanaugh delivered the opinion of the court. Justice Ruth Bader Ginsburg filed a dissenting opinion, joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

In the case Rodriguez v. Federal Deposit Insurance Corporation, United Western Bank closed after suffering $35.4 million in losses in 2011. The Federal Deposit Insurance Corporation (FDIC) was appointed as the bank’s receiver. Also in 2011, the parent company, United Western Bancorp, Inc. (UWBI), filed a tax refund request of $4.8 million to recover a portion of United Western Bank’s 2008 taxes. In 2012, UWBI filed for bankruptcy. Both the FDIC and UWBI argued in bankruptcy court that the tax refund belonged to them. The bankruptcy court ruled the refund belonged to UWBI. On appeal, the District of Colorado reversed the bankruptcy court’s decision. Simon Rodriguez, the Chapter 7 Trustee for UWBI’s bankruptcy estate, appealed to the 10th Circuit Court of Appeals, which affirmed the district court’s ruling and remanded the case to the bankruptcy court. Rodriguez petitioned the U.S. Supreme Court to review the 10th Circuit’s decision, arguing circuit courts were divided on the question of tax refund ownership.

The U.S. Supreme Court vacated and remanded the 10th Circuit’s decision in a 9-0 ruling, holding the Bob Richards rule “is not a legitimate exercise of federal common lawmaking,” in which federal judges—instead of Congress, agencies, or states—make laws. Justice Neil Gorsuch delivered the opinion of the court.

In the case Hernandez v. Mesa, U.S. Customs and Border Patrol Agent Jesus Mesa shot and killed 15-year-old Mexican national Sergio Hernandez in 2010. The Hernandez family filed charges against Mesa. The Western District of Texas dismissed the case. After several appeals, the U.S. Supreme Court heard arguments in Hernandez v. Mesa in 2016. At that time, SCOTUS vacated the 5th Circuit’s judgment and remanded the case so the 5th Circuit might reconsider its ruling in light of the Supreme Court’s opinion in Ziglar v. Abbasi (2017). On remand, the 5th Circuit ruled the Hernandez family could not rely on Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (Bivens) to file charges and affirmed the district court’s dismissal of the case.

The U.S. Supreme Court affirmed the decision of the 5th Circuit in a 5-4 ruling, holding that the plaintiffs cannot sue the U.S. Customs and Border Patrol agent for damages under the U.S. Constitution and that the Bivens holding does not extend to claims based on a cross-border shooting. Justice Alito delivered the opinion of the court. Justice Clarence Thomas filed a concurring opinion, joined by Justice Neil Gorsuch. Justice Ruth Bader Ginsburg filed a dissenting opinion, joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

In the case Monasky v. Taglieri, Italian citizen Domenico Taglieri and American citizen Michelle Monasky were a married couple living in Italy when they had a daughter, A.M.T. Both parents began applications for Italian and U.S. passports for their daughter. In 2015, Taglieri revoked his permission for A.M.T.’s U.S. passport. Two weeks later, Monasky took A.M.T. to the United States. Taglieri petitioned the Northern District of Ohio for A.M.T’s return to Italy under the Hague Convention. The district court granted Taglieri’s petition. On appeal, the 6th Circuit sitting en banc affirmed the district court’s ruling.

The Supreme Court affirmed the 6th Circuit’s decision in a unanimous ruling, holding (1) an actual agreement between the parents on where to raise a child is not necessary to establish the child’s habitual residence and (2) a district court should use clear-error review to determine habitual residence under the Hague Convention. Justice Ruth Bader Ginsburg delivered the opinion of the court. Justice Clarence Thomas joined as to Parts I, III, and IV, and filed an opinion concurring in part and concurring in the judgment. Justice Samuel Alito filed an opinion concurring in part and concurring in the judgment.

As of February 25, 2020, the court had issued decisions in eight cases this term. Between 2007 and 2018, SCOTUS released opinions in 850 cases, averaging between 70 and 90 cases per year.

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U.S. Supreme Court releases April argument calendar

The U.S. Supreme Court has released its April argument calendar for the 2019-2020 term. The court will hear eight hours of oral argument in 11 cases between April 20 and April 29. The cases are as follows:

April 20, 2020

  • City of Chicago, Illinois v. Fulton

April 21, 2020

  • McGirt v. Oklahoma
  • Texas v. New Mexico

April 22, 2020

  • Barr v. American Association of Political Consultants Inc.

April 27, 2020

  • Ford Motor Company v. Montana Eighth Judicial District Court (consolidated with Ford Motor Company v. Bandemer)
  • Rutledge v. Pharmaceutical Care Management Association

April 28, 2020

  • Chiafalo v. Washington (consolidated with Colorado Department of State v. Baca)

April 29, 2020

  • Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (consolidated with Trump v. Pennsylvania)

As of February 2020, the court had agreed to hear 74 cases and had issued decisions in four cases during its 2019-2020 term. Between 2007 and 2018, SCOTUS released opinions in 850 cases, averaging between 70 and 90 cases per year.

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U.S. Supreme Court releases March argument calendar

The U.S. Supreme Court has released its March argument calendar for the 2019-2020 term. The court will hear 11 hours of oral argument in 14 cases between March 23 and April 1.

As of January 2020, the court had agreed to hear 73 cases and had issued decisions in four cases during its 2019-2020 term. Between 2007 and 2018, SCOTUS released opinions in 850 cases, averaging between 70 and 90 cases per year.

March 23, 2020
• United States v. Briggs (consolidated with United States v. Collins)
• United States Patent and Trademark Office v. Booking.com B.V.

March 24, 2020
• Google LLC v. Oracle America Inc.
• FNU Tanzin v. Tanvir

March 25, 2020
• Carney v. Adams
• USAID v. Alliance for Open Society International

March 30, 2020
• Torres v. Madrid
• Pereida v. Barr

March 31, 2020
• Trump v. Mazars USA (consolidated with Trump v. Deutsche Bank AG)
• Trump v. Vance

April 1, 2020
• Our Lady of Guadalupe School v. Morrissey-Berru (consolidated with St. James School v. Biel)

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Justice Neil Gorsuch argues against nationwide injunctions

U.S. Supreme Court Justice Neil Gorsuch, joined by Justice Clarence Thomas, wrote a concurring opinion to a recent case arguing that lower courts often abuse their judicial powers when they issue nationwide injunctions. Gorsuch ended his opinion saying he hoped that the U.S. Supreme Court would resolve questions about the rise of nationwide injunctions.

The U.S. Supreme Court’s January 27 order granted the stay of an injunction that had blocked the U.S. Department of Homeland Security (DHS) from enforcing a new rule. The rule allows the federal government to deny immigrants a visa or a green card if they rely on government services.

In his opinion concurring in the decision, Justice Gorsuch argued that “universal injunctions tend to force judges into making rushed, high-stakes, low-information decisions.” He also claimed that when a court orders “the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies.”

Gorsuch further argued that a judicial system that produces frequent nationwide injunctions might prevent any new federal policy from going into effect. He wrote, “If a single successful challenge is enough to stay the challenged rule across the country, the government’s hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94-to-0 win in the district courts into a 12-to-0 victory in the courts of appeal. A single loss and the policy goes on ice.”

Learn more about Neil Gorsuch or the U.S. Supreme Court.

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Article III, United States Constitution

Click here to read the U.S. Supreme Court order.


U.S. Supreme Court allows DHS to enforce public charge rule

The U.S. Supreme Court on January 27 voted 5-4 to allow the U.S. Department of Homeland Security (DHS) to begin enforcing a rule that authorizes the federal government to deny immigrants a visa or a green card if they rely on government assistance.

DHS issued the final rule detailing how federal agencies determine the inadmissibility of immigrants likely to become public charges (e.g. dependent on government assistance) in August 2019. Five federal judges later issued injunctions blocking the rule from taking effect. Appellate courts lifted three of the injunctions in December 2019, but a nationwide injunction from the U.S. District Court for the Southern District of New York and a statewide injunction from the U.S. District Court for the Northern District of Illinois remained in effect.

DHS requested that the U.S. Supreme Court stay the nationwide injunction issued by Judge George B. Daniels of the Southern District of New York. In his October 2019 order, Daniels held that the plaintiffs in State of New York et al. v. U.S. Department of Homeland Security et al. would likely prevail in their claim that DHS promulgated the rule in violation of the Administrative Procedure Act (APA) and that they would suffer irreparable harm under the new policy.

The U.S. Supreme Court granted the request for a stay. Justices John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh ruled in favor of the stay while Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor dissented. In a concurring opinion filed with the order, Gorsuch urged lower courts to curtail the practice of issuing nationwide injunctions, arguing in part that the broad orders impact individuals who are not parties to the cases at hand.

The decision allows the rule to take effect nationwide pending a final decision in State of New York et al. v. U.S. Department of Homeland Security et al. The statewide injunction blocking the rule in Illinois remained in effect as of January 29.

Click here to learn more about the Administrative Procedure Act.
Click here to learn more about administrative state rulemaking.

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George Daniels
United States District Court for the Southern District of New York
Department of Homeland Security
Final rule

Link here to view the public charge final rule.

Link here to view the October 2019 injunction.

Link here to view the U.S. Supreme Court order.