Supreme Court

  • January 29, 2016
    Guest Post

    by Jessica Pezley, Judicial Clerk, Oregon Circuit Courts

    The debate over the constitutionality of the death penalty took on a renewed vigor last term in Oklahoma’s lethal injection case, Glossip v. Gross, in which Justice Breyer in dissent suggested it “highly likely that the death penalty violates the Eighth Amendment.” While the Court decided 5-4 that Oklahoma’s use of the lethal injection drug midazolam—part one of a three-part drug cocktail meant to numb an individual from the pain caused by the other drugs working to stop the heart—was constitutional, the close vote and impassioned dissent highlighted a growing skepticism of capital punishment in the Court. Flash-forward to this term and the issue was high on the docket with four cases raising procedural questions about the death penalty. Two have since been decided.

    First, in Hurst v. Florida the Court deemed unconstitutional a sentencing scheme that charged the judge, and not a jury, with making the ultimate sentencing decision in capital cases. Decided 8-1, Hurst seemed to indicate the direction the Court would take in its three remaining death penalty cases. Then, just over a week later in Kansas v. Carr/Kansas v. Gleason, the Court voted 8-1 against recognizing additional Eighth Amendment procedural protections. What accounts for this difference? And what do these inconsistent results spell out for the remaining two death penalty cases, Foster v. Chatman and Williams v. Pennsylvania?

    In Carr, the Kansas Supreme Court vacated three death sentences—those of the Carr brothers and of Gleason, a defendant in an unrelated case—because of the lower court’s failure to affirmatively instruct the jury that mitigating factors need not be proved beyond a reasonable doubt, and in the case of the Carr brothers, not allowing severance at the sentencing phase of trial. Kansas’s attorney general challenged this decision, and the Court granted certiorari on the question of whether the Eighth Amendment demands the procedural protections recognized by the Kansas Supreme Court.

    It became readily apparent that the respondents in Carr were in trouble. Justice Scalia halted oral argument to recount, at length, the grisly details of the Carr brothers’ crime spree, known as the Wichita Massacre. It came as no surprise then, when the opinion for the case was handed down, that Justice Scalia, writing for the majority, used over two pages of his 18-page opinion to again hash out the horrendous facts. In the remaining pages, the Court found little trouble in dispensing with the respondents’ arguments.

  • January 20, 2016
    Guest Post

    by Shoba Sivaprasad Wadhia, the Samuel Weiss Faculty Scholar and Clinical Professor of Law, Penn State Law; author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press 2015)

    Early Tuesday, January 19, 2016 the United States Supreme Court agreed to hear the case of United States v. Texas, a largely political lawsuit brought by a faction of 26 states challenging the legality of two programs announced by President Obama on November 20, 2014. Specifically, the high court agreed to hear arguments on the following issues: “(1) Whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA) to challenge the Secretary of Homeland Security’s guidance seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action; (2) whether the guidance is arbitrary and capricious or otherwise not in accordance with law; (3) whether the guidance was subject to the APA’s notice-and-comment procedures; and (4) whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3.” Rulings on the first three of those issues were requested by the government; the fourth issue was raised on the Court's own initiative.  On November 9, 2015, by a 2-1 majority, a panel of the Fifth Circuit Court of Appeals ruled against the Administration.

    The executive actions being challenged by states are coined as an expansion of “Deferred Action for Childhood Arrivals” (DACA) and the creation of "Deferred Action for Parents of Americans and Legal Residents” (DAPA). These actions would expand a pre-existing deferred action program for young people and create a new program for qualifying parents who have resided in the United States for at least five years. Deferred action is a form (among more than a dozen forms) of prosecutorial discretion in immigration law. When prosecutorial discretion is exercised favorably towards a person, the government (in this case Department of Homeland Security or DHS, the agency whom Congress has specifically delegated to administer and enforce the immigration laws) abstains from bringing a legally valid immigration charge against a person or group of persons. Prosecutorial discretion exists for humanitarian reasons to the extent the individual bear positive equities like intellectual promise or the position as a primary caregiver to a family; and for economic reasons as DHS has limited resources and the responsibility to target its enforcement against true priorities. This dual activity of enforcing the immigration laws against high priorities and exercising prosecutorial discretion favorably towards others lies at the core of the Take Care Clause which I have described in earlier work in the following way:

    Importantly, the President’s faithful execution of the immigration laws is not just limited to bringing enforcement actions against individuals and ultimately deporting them, but also to prioritizing the deportable population in a cost-effective and conscientious manner, and providing benefits to deportable noncitizens when they qualify for them. The President must “walk and chew gum” at the same time to carry out an effective immigration policy. 

    Apart from the deferred action programs is another memo announced on November 20, 2014 entitled “Policies for Apprehen­sion, Detention, and Removal of Undocumented Immigrants.”  These policies identify priorities for removal which include but are not limited to those with criminal histories, recent entrants, and those with removal orders issued on or after January 1, 2014. This memo is operational today and has sparked great debate and controversy since the Administration’s announcement to conduct raids against Central American families and unaccompanied children who seemingly fall within these priorities. This same memo contains a primer on the use of prosecutorial discretion, but immigration attorneys and advocates have criticized its actual implementation since its inception.

  • January 20, 2016
    Guest Post

    by Gabriel J. Chin, Martin Luther King Jr. Professor of Law, UC Davis School of Law

    The Supreme Court granted certiorari this week in United States v. Texas; the case will undoubtedly be one of the term’s most interesting, important, or both. In a 2-1 decision, the Fifth Circuit invalidated the Obama Administration’s DAPA program making “deferred action” available to as many as four million unauthorized migrants who are parents of U.S. citizens or green card holders. Deferred action represents a formal decision by the government to exercise prosecutorial discretion not to initiate deportation proceedings; it creates neither a right to remain nor a path to permanent status. However, by regulation, the government may grant work authorization to holders of deferred action.

    The Court will review several critical questions.

    The merits issues are whether the administration had the power to establish the program, and if it did, whether it should have gone through formal notice and comment under the Administrative Procedure Act. As Congress does not appropriate enough money to completely enforce the immigration laws (or any other laws, for that matter) there is no question that prosecutorial discretion, for better or for worse, is inevitable. There is also little doubt that even in the government, bosses are allowed to give direction to subordinates about how programs are to be carried out.

    The line between permissible “guidance” and formal, binding enforcement rules requiring notice and comment is debated by the parties. But given that the program does not purport to give noncitizens enforceable rights to relief and allows for case by case, discretionary evaluation of applications in the field, there is a strong reason to believe that the program constitutes permissible enforcement guidance. Certainly it is hard to dispute the idea that, in principle, discretion should be exercised consistently, transparently, and based on reasons rather than at the whims of individual officers in the field. I consider it unlikely that a majority of the Court will rule that general, non-binding guidance of this sort is impermissible.

  • January 19, 2016
    Guest Post

    by Leticia M. Saucedo, Professor of Law and Director of Clinical Legal Education, UC Davis School of Law

    The Supreme Court granted certiorari in United States v. Texas today, agreeing to hear the federal government’s questions on its immigration policy and adding one more. The Court will decide whether the federal government’s policy to postpone the deportations of millions who are in the United States in undocumented status is arbitrary and capricious, whether it was subject to the APA’s notice and comment procedures, and whether the states have standing to sue. The Court added a question that was not decided in the lower courts, namely, whether the policy violates the Take Care Clause in Art. II, Sec. 3, which requires the president to take care that the laws of the United States are faithfully executed.

    At issue in this case is the president’s announcement of a guidance that would defer action on the undocumented noncitizens in the United States who have lived in the United States for five years and who came as children, or who have U.S. citizen or permanent resident children. The federal government claims that the president’s guidance is permitted under immigration law, which allows the Department of Homeland Security to postpone, for its own convenience or for humanitarian reasons, the removal of noncitizens from the United States. The immigration statute also allows the Department of Homeland Security, for its own convenience, to issue employment authorization to these individuals. Notably, deferred action does not bestow any form of legal status on noncitizens, nor does it provide any benefit.

    The most interesting part of the Court’s grant is its signal that it will decide whether the president’s guidance violates the Constitution’s Take Care Clause. The questions of whether the president has faithfully executed the laws of the United States requires a deep understanding of the multi-dimensional nature of the immigration law at stake.

  • January 15, 2016
    BookTalk
    Notorious RBG
    The Life and Times of Ruth Bader Ginsburg
    By: 
    Irin Carmon and Shana Knizhnik

    by Shana Knizhnik, co-author and founder of the Notorious RBG Tumblr

    In late June 2013, as in every June, the Supreme Court decided a number of high-stakes cases. A majority of the Court threatened the future of affirmative action, made it more difficult to seek redress for employment discrimination, and gutted the Voting Rights Act, one of the most important pieces of civil rights legislation in the history of the United States. In each of these cases, Justice Ruth Bader Ginsburg used her voice to stand up and speak out on behalf of the rights of the disenfranchised, dissenting from the bench to protest the actions of the majority. As an incoming second-year law student, I was appalled at what the court was doing. But amidst that anger, RBG’s words stood out as a shining beacon, exemplifying the egalitarian and inclusive values I knew were embodied in the Constitution. I took to the internet, and Notorious RBG was born on Tumblr.

    As it turns out, RBG has been speaking out for the marginalized for most of her life. In Notorious RBG: The Life and Times of Ruth Bader Ginsburg, reporter Irin Carmon and I explain how RBG has captured the imagination of so many—from t-shirts to embroidery, music videos to nail art—but also why. RBG’s popularity represents so much more than just a fascination with a cool grandma (although she certainly has that going for her). In a time where rights many Americans take for granted are on the chopping block, RBG refuses to back down from her life’s mission: the continued expansion of “We the People.” We believe that this book, like the Notorious RBG phenomenon itself, draws a broad, inter-generational audience into the important work of the Court.