Tuesday round-up

This morning the Supreme Court begins the second week of the November session with two oral arguments. First up is Department of Homeland Security v. Regents of the University of California, a high-profile challenge to the Trump administration’s decision to terminate the DACA program, which allowed immigrants brought to this country illegally as children to apply for protection from deportation. Amy Howe previewed the case for this blog; her preview first appeared at Howe on the Court. Gabrielle Kanter and Jingyi Alice Yao preview the case at Cornell Law School’s Legal Information Institute. Subscript Law has a graphic explainer for the case.

At Reuters, Lawrence Hurley reports that “[t]he justices will hear the Trump administration’s appeals of three lower court rulings – in California, New York and the District of Columbia – that found that the president violated a U.S. law called the Administrative Procedure Act in seeking to kill DACA.” At Fox News, Shannon Bream and Bill Mears report that “with a ruling expected in the midst of a presidential election year, the case puts the high court at the center of one of the most politically charged issues since the start of President Trump’s term.” At CNN, Joan Biskupic reports that “[l]awyers trying to save [the DACA] program … are strategically directing their arguments to one man: Chief Justice John Roberts.” At Education Week, Mark Walsh focuses on the effect the DACA ruling may have on students, teachers and schools.

For The New York Times, Michael Shear, Julie Hirschfeld Davis and Adam Liptak report that the refusal of acting Homeland Security Secretary Elaine Duke “to cite [the administration’s] policy objections to [DACA] is now at the heart of what legal experts say is a major weakness in the government’s case defending the termination of the program.” Additional coverage of the DACA case comes from Jess Bravin, Brent Kendall and Michelle Hackman for The Wall Street Journal (subscription required); Tucker Higgins at CNBC; Pete Williams at NBC News; Robert Barnes for The Washington Post, (subscription required); Jonathan Blitzer at The New Yorker; Steven Mazie for The Economist, here and here, and on The Intelligence podcast here; Richard Wolf for USA Today, here and here; and Nina Totenberg at NPR, here, here, and here, where she reports that “[s]ometimes lost in all the legal discussion are the people whose lives will be affected by the Supreme Court’s decision in the DACA case.” For CNN, Catherine Shoichet talks to a group of Dreamers who have marched from New York City to Washington “to make sure Supreme Court justices and members of the public know how much this matters.”

At Balkinization, Andrew Pincus observes that “[i]n a time of intense polarization and suspicion of government institutions, the courts’ role in reviewing administrative agency decisions is more important than ever.” Garrett Epps at the Atlantic calls the decision-making behind the case an example of how “bad lawyering and contempt for the rule of law have resulted in Trump initiatives being derailed in the lower courts.” At Microsoft’s blog, Brad Smith writes that “this fight is not just about our employees[:] It’s also about the potential impact of DACA rescission on the hundreds of thousands of Dreamers, on businesses across the country, and on the innovation economy that is central to the nation’s prosperity.” Additional commentary comes from Greg Sargent in an op-ed for The Washington Post, the Post’s editorial board, Sen. Bob Menendez in an op-ed at NBC News, and David Leopold at Medium. The editorial board of The Wall Street Journal argues that “Daca recipients who in good faith identified themselves to the government should be protected, but this is for Congress and the President to negotiate—not for unelected judges to pre-empt.”

This morning’s second argument is in Hernandez v. Mesa, a case arising from a Mexican family’s efforts to hold a U.S. Border Patrol agent liable for the shooting death of their son, who was on the Mexican side of the border. This blog’s preview came from Amy Howe, in a post that first appeared at Howe on the Court. Kayla Anderson and Angela Shin Wei Ting preview the case for Cornell. In an op-ed for USA Today, Anya Bidwell and Nick Sibilla maintain that “for most of this country’s history, individuals — Americans and foreigners alike — successfully sued federal officers who violated their rights,” and that disallowing the family’s claim “would let federal agents go rogue without any culpability for their misconduct.”

On Friday, the court added one case to its merits docket: U.S. Patent and Trademark Office v. Booking.com, which asks whether the addition of “.com” to a generic term creates a protectable trademark. Amy Howe covers the grant for this blog, in a post that first appeared at Howe on the Court. The justices also released the January argument calendar: Amy Howe’s coverage for this blog, which first appeared at Howe on the Court, is here.

Briefly:

• At Bloomberg, Greg Stohr reports that Justice Brett Kavanaugh, who “has done his best to keep a low profile in the 13 months since one of the most polarizing Senate confirmation fights in U.S. history,” “will be back in the spotlight when he gives the featured dinner speech on Thursday at the annual Washington convention of the Federalist Society, the powerful conservative legal group that helped put him on the court.”
• In an op-ed for the Los Angeles Times, Michael McGough weighs in on last week’s oral argument in Kansas v. Glover, the court will decide whether, for the purposes of an investigative stop under the Fourth Amendment, it is reasonable for a police office to suspect that the registered owner of a car is the driver, arguing that “[i]f the court rules for Kansas, police will be able to stop a car based on the status of the owner’s driver’s license — even though it may be the owner’s son or daughter (or neighbor) behind the wheel.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondent in this case.]
• At the Pacific Legal Foundation blog, Ethan Blevins urges the justices to grant a cert petition that asks the court “to grapple with the constitutionality of Seattle’s new-fangled campaign finance scheme, known as the ‘Democracy Voucher,’” which, he argues, “[forces property owners to underwrite other people’s campaign contributions.”
• At Jost on Justice, Kenneth Jost writes that although the “Supreme Court has yet to issue any decisions this term, … the justices’ partisan tilt can be seen in several of the term’s early case-selecting decisions.”
• At City Journal, Myron Magnet hails the court’s recent efforts to “get[] back to the Framers’ Constitution—as perfected by the Bill of Rights, the Reconstruction Amendments, and the Nineteenth Amendment—and see[] the luminous modernity of its guarantee of liberty and its expectation of self-reliance.”
• At National Review, Carrie Severino argues that a call for Justices Samuel Alito and Brett Kavanaugh to recuse themselves from three pending employment-discrimination cases reflects “a glaring double standard.”

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