Supreme Court

  • 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
    Notorious RBG
    The Life and Times of Ruth Bader Ginsburg
    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.

  • December 14, 2015
    Guest Post

    by Richard L. Hasen, professor of law and political science, University of California, Irvine School of Law. Hasen is author of the book, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections.

    Almost from the moment in December 2000 that the Supreme Court decided its controversial opinion in Bush v. Gore ending the recount in Florida, there has been great debate about whether the case had any precedential value and, assuming it did, what precisely its equal protection principle stood for. Was it a one-day-only ticket? Is it a case about equality of procedures in the conduct of a jurisdiction-wide recount? Or does it require broader equal treatment of voters, so as to fulfill Bush v. Gore’s admonition against the government, by “arbitrary and disparate treatment, valu[ing] one person’s vote over that of another”? We may finally find out the case’s precedential value as soon as the 2016 elections.

    At the Supreme Court, Bush v. Gore has been a legal Voldemort, a case whose name a Court majority has dare not spoken since 2000. Only Justice Clarence Thomas has cited the case, in a dissenting opinion, and not speaking on its equal protection principles.

    Lower courts have been initially divided over whether Bush v. Gore could be used to force jurisdictions to require greater equality in the conduct of elections. Is it an equal protection violation, for example, to use much less reliable voting technology in some parts of a state but not in others? Some courts initially ruled such disparities created constitutional problems. By 2007, however, federal appellate courts seemed to reject these muscular readings of the case, and I declared the precedent all but dead in a 2007 Stanford Law Review article.

    But since the time I wrote that article, a key federal circuit has resurrected Bush v. Gore as precedent: the Sixth Circuit. In a number of cases out of Ohio, the perennial battleground state in presidential elections, the Sixth Circuit has found lack of uniform rules in the state to raise Bush v. Gore problems. It has held that the disparate treatment of provisional ballots in a recount violate Bush v. Gore equal protection principles, that the disproportionate distribution of voting machinery leading to long lines in more populated areas can violate the principle, and that giving only certain military and overseas voters but no other voters the chance to cast a ballot in early voting the weekend before an election violates Bush v. Gore.

  • December 11, 2015
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law. Chemerinsky is author of The Case Against the Supreme Court (Viking, 2014).

    Bush v. Gore was clearly wrong when it was decided 15 years ago and a decade and a half make it look only worse. The decision is the epitome of conservative judicial activism, which in this instance had the Supreme Court for the first time in history deciding the outcome of a presidential election.

    The presidential election of Tuesday, November 7, 2000, was one of the closest in American history. By early Wednesday morning it was clear that the Democratic candidate, Vice President Al Gore, won the national popular vote but that the outcome of the electoral vote was uncertain. The presidency turned on Florida and its 25 electoral votes.

    On Sunday night, November 26, the Florida Elections Canvassing Commission certified the election results: Bush was determined to be the winner of Florida by 537 votes and thus the winner of Florida’s 25 electoral votes. On Monday, November 27, Gore filed suit in Florida under the Florida law providing for “contests” of election results.

    On Monday, December 4, the Florida trial court ruled against Gore on the grounds that Gore failed to prove a “reasonable probability” that the election would have turned out differently if not for problems in counting ballots.

    The Florida Supreme Court granted review and on Friday afternoon, December 8, the Florida Supreme Court, by a 4-to-3 decision, reversed the trial court. The Florida Supreme Court ruled that the trial court had used the wrong standard in insisting that Gore demonstrate a “reasonable probability” that the election would have been decided differently. The Florida Supreme Court said that the statute requires only a showing of “[r]eceipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election.”

    The Florida Supreme Court ordered the counting of all uncounted votes. On Friday night, December 8, a Florida trial court judge, Terry Lewis, ordered that the counting of the uncounted votes commence the next morning and that it be completed by Sunday afternoon, December 10, at 2:00 p.m. The judge said that he would resolve any disputes.

    On Saturday morning, the Supreme Court granted Bush’s petition for certiorari and stayed the counting of the uncounted ballots. On Monday, December 11, the United States Supreme Court held oral arguments. On Tuesday night, December 12, at approximately 10:00 p.m., Eastern standard time, the Court released its opinion in Bush v. Gore. In a per curium opinion joined by five of the Justices, the Supreme Court ruled 5-4 that counting the uncounted ballots without standards denies equal protection and that counting could not continue because Florida wished to choose its electors by the December 12 “safe harbor” date set by federal law. The per curium opinion was joined by Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas. Additionally, Chief Justice Rehnquist wrote an opinion concurring in the judgment, which was joined by Justices Scalia and Thomas, arguing that the Florida Supreme Court had impermissibly changed Florida’s election law in a manner that violates federal law. Each of the other four Justices – Stevens, Souter, Ginsburg, and Breyer -- wrote dissenting opinions.