FedSoc Blog

New Post-Decision SCOTUScast: Scialabba v. Cuellar de Osorio

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by SCOTUScaster
Posted July 10, 2014, 1:40 PM

On June 9, 2014, the Supreme Court issued its decision in Scialabba v. Cuellar de Osorio (formerly Mayorkas v. Cuellar de Osorio). This case involved two questions: (1) Whether Section 1153(h)(3) of the Immigration and Nationality Act– which provides rules for determining whether particular aliens qualify as “children” so that they can obtain visas or adjustments of their immigration status as derivative beneficiaries of sponsored family member immigrants (also known as “primary beneficiaries”) – unambiguously grants relief to all aliens who qualify as “child” derivative beneficiaries at the time a visa petition is filed but age out of qualification by the time the visa becomes available to the primary beneficiary; and (2) whether the Board of Immigration Appeals (BIA) reasonably interpreted Section 1153(h)(3).

Although the District Court deferred to the BIA’s determination that only those petitions that can be seamlessly converted from one family preference category to another without the need for a new sponsor are entitled to conversion under §1153(h)(3), the en banc Ninth Circuit reversed, holding that the provision unambiguously entitled all aged-out derivative beneficiaries to automatic conversion and priority date retention.

By a fractured vote of 5-4, the Supreme Court reversed the Ninth Circuit. Justice Kagan announced the judgment of the Court and delivered an opinion joined by Justices Kennedy and Breyer, concluding that the BIA’s textually reasonable construction of §1153(h)(3)’s ambiguous language was entitled to deference. The Chief Justice, joined by Justice Scalia, agreed that the BIA’s interpretation was reasonable, but not because an agency has authority to resolve direct conflicts within a statute. The BIA’s reasonable interpretation of §1153(h)(3) was simply consistent with the ordinary meaning of the statutory terms, with the established meaning of automatic conversion in immigration law, and with the structure of the family-based immigration system. Justice Alito dissented. Justice Sotomayor dissented joined by Justice Breyer in full and Justice Thomas except as to footnote 3.

To discuss the case, we have Margaret Stock, who is an attorney with the Anchorage office of Cascadia Cross Border Law.

Click here to view this article on the source site »

Categories: SCOTUScasts

New Post-Decision SCOTUScast: National Labor Relations Board v. Noel Canning

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by SCOTUScaster
Posted July 02, 2014, 10:32 AM

On June 26, 2014, the Supreme Court issued its decision in National Labor Relations Board v. Noel Canning. This case presented three questions arising from President Obama’s attempt to make three recess appointments to the National Labor Relations Board or NLRB. First, it asked whether the President can exercise the recess appointment power during a temporary recess that occurs while the Senate is still in session, or is instead limited to recesses between enumerated sessions. Second, the case asked whether the President may exercise the recess appointment power to fill any vacancy that exists during a recess--including vacancies that arose before the recess occurred--or whether that power is limited to vacancies that arise during the recess.  Finally, the case asked whether the Senate is in continuous recess if, though effectively out of town, it continues to convene every three days in brief pro forma sessions.

In a 9-0 decision, the Court found President Obama’s attempted recess appointments to the National Labor Relations Board invalid.  In his opinion for the Court, Justice Breyer ruled that the Recess Appointments Clause empowers the President to fill any existing vacancy during any recess, whether it be intra-session or intersession, of sufficient length. He also held that the phrase 'vacancies that may happen during the recess of the Senate,' applies both to vacancies that first arise during a recess and to vacancies that arise before a recess but continue to exist during the recess. Finally, he concluded that because the Senate was in session during its pro forma sessions, the recess during which the President made the appointments was only 3 days, and therefore too short to trigger the President’s recess appointment authority.  The appointments were therefore invalid. Justices Kennedy, Ginsburg, Sotomayor, and Kagan joined the opinion of the Court. Justice Scalia filed an opinion concurring in the judgment, which the Chief Justice and Justices Thomas and Alito joined. The opinion of the D.C. Circuit, which held that the recess appointments fell outside the scope of the Clause, was affirmed.

To discuss the case, we have Noel J. Francisco, Partner, Jones Day; Prof. Kristin E. Hickman, Harlan Albert Rogers Professor in Law; Associate Director, Corporate Institute, University of Minnesota Law School; and Prof. Michael B. Rappaport, Hugh and Hazel Darling Foundation Professor of Law, and Director, Center for the Study of Constitutional Originalism, University of San Diego School of Law.

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Categories: SCOTUScasts

New Post-Decision SCOTUScast: Burt v. Titlow

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by SCOTUScaster
Posted June 19, 2014, 3:32 PM

On November 5, 2013, the Supreme Court issued its decision in Burt v. Titlow. This case involves an appeal by the State of Michigan from a federal grant of habeas relief to a state prisoner. The question was whether a federal appellate court, the Sixth Circuit, erred in granting habeas relief to a prisoner on the grounds that she was denied effective assistance of counsel when her attorney allowed her to withdraw a manslaughter plea and maintain a claim of innocence, with the result that she was convicted of second-degree murder, a more serious crime.

By a vote of 9-0, the Supreme Court reversed the Sixth Circuit. In an opinion delivered by Justice Alito, the Court held that the Sixth Circuit failed to apply the "doubly deferential" standard of review recognized by the Court's case law when it refused to credit a lower state court's reasonable factual finding and assumed that counsel was ineffective where the record was silent. Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, Breyer, Sotomayor, and Kagan joined Justice Alito's opinion. Justice Sotomayor also filed a concurring opinion and Justice Ginsburg concurred in the judgment only.

To discuss the case, we have Ron Eisenberg, Deputy District Attorney, Philadelphia District Attorney's Office.

Click here to view this article on the source site »

Categories: SCOTUScasts

New Post-Decision SCOTUScast: Wood v. Moss

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by SCOTUScaster
Posted June 11, 2014, 2:55 PM

On May 27, 2014, the Supreme Court issued its decision in Wood v. Moss. This lawsuit against several Secret Service agents presented two questions: one, did the court of appeals err in denying qualified immunity to agents protecting the president by evaluating the respondent’s claim of viewpoint discrimination at a high level of generality, and concluding that pro- and anti-Bush demonstrators should have been positioned an equal distance from the President while he was dining on the outdoor patio and while he was travelling by motorcade? Two, have respondents adequately pleaded viewpoint discrimination in violation of the First Amendment when no factual allegations support their claim of discriminatory motive and there was an obvious security-based rationale for moving the nearby anti-Bush group and not the farther-away pro-Bush group?

In a unanimous opinion delivered by Justice Ginsburg, the Court ruled that the Secret Service agents are entitled to immunity. The decision of the Ninth Circuit was reversed.

To discuss the case, we have Patrick Garry, who is a professor of law at the University of South Dakota School of Law.

Click here to view this article on the source site »

Categories: SCOTUScasts

New Post-Decision SCOTUScast: Robers v. United States

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by SCOTUScaster
Posted June 04, 2014, 11:10 AM

On May 5, 2014, The Supreme Court announced its decision in Robers v. United States. This case involves the Mandatory Victims Restitution Act of 1996, which requires one who has obtained property fraudulently to return it or (if return is not possible) pay “an amount equal to . . . the value of the property” less “the value (as of the date the property is returned) of any part of the property that is returned.”  The question here is whether a defendant who fraudulently obtained a loan, for which he provided a mortgage as collateral, returned “any part of the property”  when his lenders foreclosed on the mortgage.

In a unanimous decision delivered by Justice Breyer, the Court held that the statutory phrase “any part of the property” refers only to the specific property lost by the victim, which in the case of a fraudulently obtained loan is the money lent.  Thus, no part of the property is returned until the collateral is sold and the victim receives money from the sale.  Thus, any amount due is reduced not by the value of the collateral when the victim received it, but by the value of the proceeds the victim received when the collateral was sold.

The decision of the Seventh Circuit was affirmed. Justice Sotomayor filed a concurring opinion, which Justice Ginsburg joined.

To discuss the case, we have Peter Thomson, who is a partner at Fowler Rodriguez.

Click here to view this article on the source site »

Categories: SCOTUScasts

New Post-Argument SCOTUScast: POM Wonderful LLC v. The Coca Cola Company

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by SCOTUScaster
Posted May 30, 2014, 4:09 PM

On April 21, 2014, the Supreme Court heard oral argument in POM Wonderful LLC v. The Coca Cola Company. This case involves the Lanham Act, which allows individuals to sue for harms resulting from misleading representations of goods or services in commerce. The question in this case is whether a private party can bring a Lanham Act claim challenging a product label that complies with regulations under the Food, Drug, and Cosmetic Act.

To discuss the case, we have Prof. William Kratzke, Cecil C. Humphreys Professor of Law at the University of Memphis Cecil C. Humphreys School of Law.

Click here to view this article on the source site »

Categories: SCOTUScasts

New Post-Argument SCOTUScast: CTS Corp. v. Waldburger

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by SCOTUScaster
Posted May 29, 2014, 4:00 PM

On April 23, 2014, the Supreme Court heard oral argument in CTS Corp. v. Waldburger. The question in this case is whether the U.S. Court of Appeals for the Fourth Circuit correctly interpreted the preemption provision of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to apply to state statutes of repose--which typically impose a final time limit for bringing suit a certain amount of time after the defendant took action--in addition to state statutes of limitations, which simply impose time limits based on when a particular cause of action accrues.

To discuss the case, we have Allyson Ho, a partner at Morgan Lewis.

Click here to view this article on the source site »

Categories: SCOTUScasts

New Post-Decision SCOTUScast: Navarette v. California

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by SCOTUScaster
Posted May 20, 2014, 8:30 AM

On April 22, 2014 the Supreme Court issued its decision in Navarette v. California. The question in this case was whether the Fourth Amendment requires an officer who receives an anonymous tip regarding a drunk or reckless driver to corroborate dangerous driving before stopping the vehicle.

In a 5-4 decision delivered by Justice Thomas, the Court held that the traffic stop in this case complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the truck’s driver was intoxicated. Chief Justice Roberts as well as Justices Kennedy, Breyer, and Alito joined the opinion of the Court. Justice Scalia filed a dissenting opinion, which Justices Ginsburg, Sotomayor, and Kagan joined. The judgment of the Court of Appeal of the State of California, First Appellate District, was affirmed.

To discuss the case, we have Erin Sheley, who is a Visiting Associate Professor at the George Washington University School of Law. Listen here.

Categories: SCOTUScasts

New Post-Argument SCOTUScast: American Broadcasting Companies, Inc. v. Aereo, Inc.

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by SCOTUScaster
Posted May 16, 2014, 4:38 PM

On April 22, 2014, the Supreme Court heard oral argument in American Broadcasting Companies, Inc. v. Aereo, Inc. This case involves the question of whether, under sections 101 and 106 of the Copyright Act, a company “publicly performs” a copyrighted television program--a privilege normally reserved to the copyright holder--when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet.

To discuss the case, we have Babette Boliek, Associate Professor of Law at the Pepperdine University School of Law.

Click here to view this article on the source site »

Categories: SCOTUScasts

New Post-Argument SCOTUScast: Susan B. Anthony List v. Driehaus

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by SCOTUScaster
Posted May 15, 2014, 7:24 PM

On April 22, 2014, the Supreme Court heard oral argument in Susan B. Anthony List v. Driehaus. The question in this case is twofold. First, whether, to challenge a speech-suppressive law, a person whose speech is prohibited must prove that authorities would definitely and successfully prosecute him, as the Sixth Circuit holds, or whether the court should presume that a credible threat of prosecution exists absent the law falling into disuse or a firm commitment by prosecutors not to enforce the law, as seven other circuits have hold. The second question is whether the Sixth Circuit erred by holding, in direct conflict with the Eighth Circuit, that state laws prohibiting “false” political speech are not subject to pre-enforcement First Amendment review as long as the speaker maintains that his speech is true, even if others who enforce the law disagree.

To discuss the case, we have John G. Malcolm, Director, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation.

Click here to view this article on the source site »

Categories: SCOTUScasts

New Post-Decision SCOTUScast: Town of Greece v. Galloway

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by SCOTUScaster
Posted May 13, 2014, 10:45 AM

On May 5, 2014, the Supreme Court issued its decision in Town of Greece v. Galloway. The question in the case was whether the practice of opening a town meeting with prayer violates the Establishment Clause of the First Amendment.

In an opinion delivered by Justice Kennedy, the Court held by a vote of 5-4 that the town's prayer practice did not violate the Establishment Clause. Justice Kennedy was joined by Chief Justice Roberts and Justice Alito in full; Justices Scalia and Thomas joined except for Part II-B; Justice Alito filed a concurring opinion joined by Justice Scalia. Justice Thomas concurred in part and concurred in the judgment, joined in part by Justice Scalia. Justice Breyer dissented alone; Justice Kagan filed a dissenting opinion in which Justices Breyer, Ginsburg, and Sotomayor joined. The opinion of the Second Circuit was reversed.

To discuss the case, we have Kim Colby, who is Senior Counsel for the Christian Legal Society.

Click here to view this article on the source site »

Categories: SCOTUScasts

New Post-Decision SCOTUScast: White v. Woodall

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by SCOTUScaster
Posted May 08, 2014, 9:11 AM

On April 23, 2014, the Supreme Court issued its decision in White v. Woodall. The case presented two questions: (1) Whether the Sixth Circuit violated the Anti-Terrorism and Effective Death Penalty Act by granting habeas relief because a Kentucky trial court refused to issue an instruction to the jury telling it not to draw adverse inferences from the defendant’s silence at the sentencing phase in a death penalty case; and (2) whether the Sixth Circuit violated the harmless error standard in Brecht v. Abrahamson in ruling that the absence of a no adverse inference instruction was not harmless in spite of overwhelming evidence of guilt and in the face of a guilty pleas to the crimes and aggravators.

In an opinion delivered by Justice Scalia, the Court held by a vote of 6-3 that, because the Kentucky Supreme Court’s rejection of respondent’s Fifth Amendment adverse inference claim was not objectively unreasonable, the Sixth Circuit erred in granting the writ of habeas and the Court need not reach the harmless error issue. Chief Justice Roberts as well as Justices Kennedy, Alito, Thomas, and Kagan joined the opinion of the Court. Justice Breyer authored a dissenting opinion, which Justices Ginsburg and Sotomayor joined.

To discuss the case, we have Robert Blecker who is a Professor of Criminal Law and 8th Amendment Studies at New York Law School and author of The Death of Punishment.

Click here to view this article on the source site »

Categories: SCOTUScasts

New Post-Decision SCOTUScast: Walden v. Fiore

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by SCOTUScaster
Posted April 22, 2014, 11:00 AM

On February 25, 2014, the Supreme Court issued its decision in in Walden v. Fiore. This case involved a dispute over personal jurisdiction. For a court to validly adjudicate a dispute, it must possess jurisdiction over the parties before it. Here the question was whether due process permited a federal court in Nevada to exercise personal jurisdiction over a law enforcement defendant in Atlanta, Georgia regarding an allegedly improper seizure of the plaintiffs’ gambling winnings that took place in transit at Atlanta’s airport. In addition, there was a question of whether Nevada was a proper venue to adjudicate the parties’ dispute under the terms of an applicable federal statute.

In a unanimous decision delivered by Justice Thomas, the Court held that the United States District Court for the District of Nevada lacked personal jurisdiction over the petitioner. Given the lack of jurisdiction, the Court did not reach the venue issue. The decision of the Ninth Circuit was reversed.

To discuss the case, we have Paul Stancil, who is a Professor of Law at the University of Illinois College of Law.

Click here to view this article on the source site »

Categories: SCOTUScasts

New Post-Decision SCOTUScast: Lawson v. FMR LLC

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by SCOTUScaster
Posted April 16, 2014, 8:29 AM

On March 4, 2014, the Supreme Court issued its decision in Lawson v. FMR LLC. The question in the case is whether the Sarbanes-Oxley Act’s retaliation protections for whistleblowers extend to employees of privately owned contractors who are working for public companies.

Justice Ginsburg delivered the opinion of the Court, which held that the Sarbanes-Oxley Act's whistleblower protection does extend to employees of a public company’s private contractors and subcontractors. The decision of the First Circuit was reversed and the case remanded for further proceedings. Chief Justice Roberts, Justice Breyer, and Justice Kagan joined the opinion of the Court. Justices Scalia and Thomas joined in principal part. Justice Scalia filed an opinion concurring in principal part and concurring in the judgment, which Justice Thomas joined. Justice Sotomayor filed a dissenting opinion, joined by Justices Kennedy and Alito.
To discuss the case, we have Jessie Liu, who is a partner at Jenner & Block.

Click here to view this article on the source site »

Categories: SCOTUScasts

SCOTUSBlog Analysis of McCutcheon Campaign Finance Decision

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by Publius
Posted April 02, 2014, 1:13 PM

Lyle Denniston comments at SCOTUSblog:

The Supreme Court pressed ahead on Wednesday with the majority’s constitutional view that more money flowing into politics is a good thing — even if much of it comes from rich donors.  By a five-to-four vote, the Court struck down the two-year ceilings that Congress has imposed on donations by individuals to presidential and congressional candidates, parties and some — but not all — political action groups.The main opinion delivered by Chief Justice John G. Roberts, Jr., said confidently that corruption in politics will be kept in check by caps — left intact — on how much each single donation can be.  Removing the ceilings on the total amounts that may given in each election cycle will not undermine those limits, Roberts predicted.

The decision was not as sweeping as the Court’s ruling four years ago, removing all restrictions on what corporations and labor unions can spend of their own money in federal campaigns (Citizens United v. Federal Election Commission), which has led to billions of dollars spent on politics through financing that is supposed to be independent of candidates or parties.  The new ruling leaves that option open if a donor does not want to directly support a candidate or a party committee and stay within the per-donation caps.

Even so, the practical result of the new ruling is almost sure to be that wealthy individuals favoring specific candidates or party positions will be able to spread their money around among more candidates and political groups.

Donors will get into legal trouble, the ruling emphasized, only if they demand a specific favor in policy or legislation in a direct exchange for the money they give.  That is the only kind of corruption that the First Amendment will allow the government to attack, the decision stressed.

The Chief Justice’s opinion said that other recent changes in campaign finance law will work to reduce the risks of abuse, and it offered several other ideas for new limits that it implied might be constitutional. Whether the votes are there in Congress to pass any of those suggestions is problematic.

Although the Roberts opinion spoke only for himself and three other Justices, Justice Clarence Thomas said he agreed with the result, making a majority for eliminating the two-year ceilings.  Thomas said he would have gone even further to free up even more donations in federal campaigns.  He would have overruled a 1976 decision (Buckley v. Valeo) that gives contributions less constitutional protection than spending during campaigns.  He added, though, that the Roberts opinion “continues to chip away” at the 1976 decision’s foundations.

The Roberts opinion was supported in full by Justices Samuel A. Alito, Jr., Anthony M. Kennedy, and Antonin Scalia.  Justice Stephen G. Breyer wrote for the dissenters, and orally announced the dissenters’ reasoning in a presentation that ran longer than the Chief Justice’s announcement of the ruling.  Breyer’s opinion was joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. . . .

In October 2013, the Federalist Society producted a post-argument SCOTUScast on the case with Derek Muller, Associate Professor of Law at the Pepperdine University School of Law. You can listen to it here.

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