Petitions of the week

Trump’s steel tariffs, UNC affirmative action, and Maine’s COVID-19 vaccine mandate

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, challenges to President Donald Trump’s 50% tariff on Turkish steel, the University of North Carolina’s use of race in admissions, and Maine’s COVID-19 vaccine mandate for health care workers.

Trade and national security

Transpacific Steel LLC v. United States addresses statutory time limits on the president’s power to impose tariffs on imported goods as a matter of national security. Section 232 of the Trade Expansion Act of 1962 allows the president to adopt trade measures “[w]ithin 90 days after receiving a report … in which the Secretary [of Commerce] finds that an article is being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security.” The law further provides that if the president “determines … to take action to adjust imports of an article and its derivatives, the President shall implement that action by no later than the date that is 15 days after the day on which the President determines to take action.”

On Jan. 11, 2018, former Secretary of Commerce Wilbur Ross issued a report concluding that imports of steel products threatened national security. Within 90 days, on March 8, 2018, Trump issued Proclamation 9705, which imposed a 25% tariff on imported steel products from countries other than Canada and Mexico. On Aug. 10, 2018, Trump raised the tariff on steel from Turkey to 50% in Proclamation 9772, referring to the secretary’s advice in the January report.

Turkish producers and American importers of Turkish steel challenged Proclamation 9772 in the U.S. Court of International Trade on the ground that Trump issued the 50% tariff outside the statutory time limits. A three-judge panel agreed that the time limits in Section 232 constitute a mandatory constraint on the president’s power. The U.S. Court of Appeals for the Federal Circuit reversed, ruling that the 50% tariff was part of an ongoing plan of action that Trump had properly initiated earlier.

In their petition, the challengers argue that the Federal Circuit’s decision contradicts a prior Supreme Court decision that held that Section 232 is not an unconstitutional delegation of legislative power to the executive branch because the statute establishes clear preconditions that the president must follow. Unless the Supreme Court reverses the Federal Circuit’s decision, the challengers will have to pay $54 million in unpaid duties. Finally, because the Court of International Trade and the Federal Circuit have exclusive jurisdiction over trade matters, the challengers’ petition does not claim a circuit split.

Affirmative action

In mid-June, the Supreme Court “invited” then-Acting Solicitor General Elizabeth Prelogar to file a brief expressing the views of the United States in Students for Fair Admissions Inc. v. President & Fellows of Harvard College. In that case, the non-profit petitioner asks the justices to overrule precedent allowing institutions of higher education to use race as a factor in admissions. Prelogar, now the full-time solicitor general, has not yet filed the federal government’s brief, though she is expected to file it soon.

The non-profit has now also filed a petition in a challenge to the University of North Carolina that it hopes can serve as a companion to the Harvard case. In early November, the district court ruled that UNC’s use of race in admissions was consistent with Supreme Court precedents. Filing a petition for certiorari “before judgment,” the non-profit asks the justices to take the UNC case before the U.S. Court of Appeals for the Fourth Circuit considers the issue. The case is Students for Fair Admissions, Inc. v. University of North Carolina.

COVID-19 vaccine mandates

In late October, the Supreme Court rejected an emergency application brought by Maine health care workers challenging the state’s COVID-19 vaccine mandate, which did not allow the workers to request any religious accommodations. Justice Amy Coney Barrett, joined by Justice Brett Kavanaugh, concurred in that denial on the ground that the court’s emergency docket was not the right place to resolve the merits of the workers’ claims.

The challengers have since filed a petition for certiorari, asking for the court’s full merits review. On the first page of their brief, under their “Questions Presented,” the challengers quote directly from Justice Neil Gorsuch’s dissent, joined by Justices Clarence Thomas and Samuel Alito, from the denial of the emergency application. The case is Does v. Mills.

These and other petitions of the week are below:

Wright v. Indiana
21-634
Issues: (1) Whether a defendant’s otherwise clear invocation of his right to represent himself becomes equivocal when he prefers representation by an attorney who cannot or will not represent him; and (2) whether courts may override a defendant’s right to represent himself in a high-penalty case out of fear that he will be unable to represent himself well.

North Carolina State Health Plan for Teachers & State Employees v. Kadel
21-674
Issue: Whether the residual clause of Section 1003 of the Rehabilitation Act Amendments of 1986 provides an “unequivocal textual waiver” of sovereign immunity, permitting suits against states under subsequently enacted statutory provisions that refer to neither states nor sovereign immunity.

Musta v. Mendota Heights Dental Center
21-676
Issue: Whether the Controlled Substances Act preempts an order under a state workers’ compensation law requiring an employer to reimburse an injured employee for the cost of medical marijuana used to treat a work-related injury.

Shivers v. United States
21-682
Issue: Whether the discretionary function exception to the Federal Tort Claims Act immunizes the United States from tort liability for acts taken by its employees in violation of the Constitution.

Kitchin v. Bridgeton Landfill, LLC
21-683
Issue: Whether the Class Action Fairness Act’s “local controversy” exception under which a federal district court must decline jurisdiction over a class action can be satisfied when the local and non-local defendants engaged in the same alleged conduct (as the U.S. Courts of Appeals for the 6th, 9th, and 10th Circuits hold), or whether the alleged conduct of the local defendant must be different from that of the non-local defendants (as the U.S. Court of Appeals for the 5th and 8th Circuits hold).

Haystings v. Korb
21-692
Issue: Whether, when a prisoner violates the Prison Litigation Reform Act by initiating litigation without first exhausting administrative remedies, the prisoner can escape that violation by filing a supplemental pleading under Federal Rule of Civil Procedure 15(d).

Gilbert v. United States
21-706
Issues: (1) Whether, in a bribery prosecution based on issue-advocacy payments that would otherwise enjoy First Amendment protection, the government must prove that the payments were explicitly linked to official action; and (2) whether a jury must be instructed that merely “expressing support” for a policy cannot support conviction under the federal bribery laws.

Students for Fair Admissions, Inc. v. University of North Carolina
21-707
Issues: (1) Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether a university can reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student-body diversity.

Does v. Mills
21-717
Issues: (1) Whether a state governor’s order mandating that private healthcare employers, on penalty of revocation of their business licenses, terminate their healthcare workers who are not fully vaccinated for COVID-19, and deny any worker’s request for religious accommodation from the mandate while allowing medical exemptions from the mandate, violates the employers’ and employees’ rights under the free exercise clause of the First Amendment; (2) whether, under the supremacy clause of the United States Constitution, a state governor’s order mandating that private healthcare employers, on penalty of revocation of their business licenses, terminate their healthcare workers who are not fully vaccinated for COVID-19 with no opportunity for any worker to seek a religious accommodation from the mandate, is preempted by the religious accommodation provisions of Title VII of the Civil Rights Act of 1964; and (3) whether Article III courts have incidental equitable powers to grant preliminary injunctive relief to employees in aid of their Title VII remedies when the harm suffered by the employees in the absence of injunctive relief has a chilling effect on their religious free exercise and protection from religious discrimination.

Transpacific Steel LLC v. United States
21-721
Issues: (1) Whether the president acted outside of the scope of the statutory authority Congress granted under Section 232 of the Trade Expansion Act of 1962 by doubling the tariff on steel imports from Turkey after the expiration of the statutory periods for presidential action specified in Section 232(c)(1); and (2) whether Section 232, as construed by the U.S. Court of Appeals for the Federal Circuit majority in this case to eliminate mandatory deadlines for presidential action, is inconsistent with the Supreme Court’s ruling in Federal Energy Administration v. Algonquin SNG, Inc. and is therefore an unconstitutional delegation of legislative power to the president in violation of Article I, section 8 of the Constitution and the principle of separation of powers because it cedes to the president the virtually unbounded power to tax and otherwise regulate imports.