Justices will weigh in on DACA termination (Updated)

Editor’s Note: This post, originally published at 10:54 a.m., was expanded at 11:39 a.m.

This morning the Supreme Court added another blockbuster to its docket for next term, with the announcement that it will take up the challenge to the Trump administration’s decision to end the program known as “Deferred Action for Childhood Arrivals,” or “DACA.”

Established by the Obama administration in 2012, DACA allowed undocumented immigrants who had been brought to the United States as children to apply for protection from deportation and (among other things) permission to work in this country. In 2017, the Trump administration revealed its plans to terminate DACA, which would make some of the 800,000 young adults who qualified for the program eligible for deportation once again.

In January 2018, a federal judge in California issued an order that blocked the government from ending the program; similar orders from two other courts soon followed. The Trump administration came to the Supreme Court late last year, asking the justices to weigh in on two questions: Whether the decision to end DACA is the kind of action that courts can review at all; and, even if it is, whether the decision to end the program was legal.

The Trump administration also took the unusual step of asking the Supreme Court to hear its appeals even before the federal courts of appeals could rule on them. Because the justices will have to decide the dispute eventually, the government argued, they should go ahead and do it quickly: Until the issues are settled, the government will have to keep in place a policy that it believes is illegal and “sanctions the ongoing violation of federal law by more than half a million people.”

Just a few days after the government petitioned for review in the Supreme Court, the U.S. Court of Appeals for the 9th Circuit issued its decision in the government’s case. The court of appeals upheld the district court’s order requiring the Trump administration to keep the DACA program in place.

The justices considered the government’s appeals at two private conferences in January but then put them on hold. The cases returned for consideration at the justices’ conference on mid-June, and today the justices announced that they had granted review. The three cases will be argued together, likely in late fall.

The justices will also hear the case of Bridget Kelly, who served as deputy chief of staff to former New Jersey governor Chris Christie. Kelly was convicted and sentenced to 18 months in prison for her role in “Bridgegate” – the decision to change the traffic patterns on the George Washington Bridge, creating gridlock in nearby Fort Lee, New Jersey. Officials cited a traffic study to justify the change, but prosecutors say that the real reason was a desire to punish the city’s mayor for not endorsing Christie’s re-election bid. The question that the court agreed to decide in Kelly’s case is whether a public official defrauds the government of its property when she provides a “public policy reason” for an official decision that is not her actual reason for making the decision.

The justices agreed to hear a major dispute over public funding for parents who send their children to religious schools. Espinoza v. Montana Department of Revenue is a clash over a Montana law that created tax credits to provide scholarships for families who send their children to private schools, including religious schools. The Montana Supreme Court struck the law down, ruling that it violated the Constitution because it helped religious institutions. The petition asking the justices to review that ruling was filed by three low-income mothers who used the scholarships to send their children to a Christian school in Kalispell, Montana.

The justices turned down, however, a petition by Alabama, which had appealed from a decision by the U.S. Court of Appeals for the 11th Circuit that invalidated a state law barring the use of what the state calls “dismemberment” abortions and physicians refer to as “dilation and evacuation.” The method is used for virtually all abortions starting at 15 weeks of pregnancy, although those abortions account for only seven percent of abortions in the state. The justices had repeatedly put off review of the state’s petition before finally considering it this month.

Justice Clarence Thomas filed a separate opinion in which he agreed with the decision to deny review but complained that the idea that “anything in the Constitution prevents States from passing laws prohibiting the dismembering of a living child is implausible.” Under the Supreme Court’s abortion jurisprudence, he continued, whether a restriction on abortion is constitutional hinges on whether it places an “undue burden” on a woman’s right to have an abortion. And here, he observed, the lower courts found such a burden because “abortion providers persuaded the District Court—despite mixed medical evidence—that other abortion methods were too risky.” But the “undue burden” standard is an “aberration of constitutional law,” Thomas argued, and the Alabama case “serves as a stark reminder that our abortion jurisprudence has spiraled out of control.”

The justices granted a total of 13 cases today, for a total of 11 hours of additional arguments. Today’s other grants include Opati v. Sudan, a case that stems from the 1998 attacks by al Qaeda on the U.S. embassies in Kenya and Tanzania, which killed over 200 people and injured over 1,000 more. In a brief filed late last month, the federal government recommended that the justices grant review to decide whether the current version of the terrorism exception to the Foreign Sovereign Immunities Act allows punitive damages for pre-enactment conduct, which is what the court did today. Justice Brett Kavanaugh is recused from the case, presumably because he was involved in it when he was a judge on the U.S. Court of Appeals for the District of Columbia Circuit.

Another grant came in Thole v. U.S. Bank, in which the justices will decide whether a participant in a pension fund can sue the fund managers when he has not actually suffered any financial injury. The plan participants in this case have thus far received all of their pension payments, but in 2014 they filed a lawsuit in which they alleged that the managers of the pension plan had pursued a too-risky investment strategy that led to $748 million in losses; the sponsors of the fund then made a large contribution to the plan, leaving it overfunded. The justices also asked the parties to address the question of whether the participants have shown a legal right to sue in this case.

The justices also will hear the following cases (again, most likely in late fall):

• Babb v. Wilkie, involving the standard of proof for federal employees suing under the Age Discrimination in Employment Act;
• GE Energy Power Conversion v. Outokumpu Stainless, involving whether the international convention governing the enforcement of foreign arbitration awards allows someone who has not signed an arbitration agreement to nonetheless compel arbitration;
• Lucky Brand Dungarees v. Marcel Fashions Group, involving whether, when a plaintiff asserts new claims, a defendant can raise defenses that were not actually litigated and resolved in any prior cases between the parties;
• Romag Fasteners v. Fossil, Inc., involving whether willful infringement is a requirement to seek an award of an infringer’s profits in a trademark infringement suit;
• Rodriguez v. FDIC, involving how courts should determine ownership of a tax refund paid to an affiliated corporate group; and
• Shular v. United States, involving whether the determination of what constitutes a “serious drug offense” under the Armed Career Criminal Act should use the same approach used to determine whether an offense is a “violent felony” under the ACCA.

Today’s order list also sent over a dozen cases that had been on hold back to the lower courts for another look in light of the court’s recent decisions. Among those cases was Pensacola v. Kondrat’yev, in which the Florida city had asked the justices to review a ruling by the U.S. Court of Appeals for the 11th Circuit ordering it to take down a 75-year-old cross in a public park there. The lower court will now reconsider that decision in light of the Supreme Court’s ruling last week in American Legion v. American Humanist Association, which rejected a challenge to a cross erected in what is now a traffic circle outside Washington, D.C., as a memorial to local soldiers killed in World War I.

The justices’ next scheduled conference is on October 1.

This post was originally published at Howe on the Court.