Tag: amendment

SCOTUS limits Double Jeopardy Clause

On 17 June 2019, the US Supreme Court ruled 7-2, in Gamble v. United States, No. 17-646, 587 U.S. (2019), that the Double Jeopardy Clause of the Fifth Amendment did not protect the petitioner against federal prosecution for an unlawful possession of firearms on the basis that the had already been tried for this act  before a State court. The Majority opinio written by Justice Alito and joined by Justices Thomas, Breyer, Sotomayor, Kagan, Kavanaugh and Chief Justice Roberts demonstrates a strong literal approach to constitutional interpretation, an faithful adherence to the document’s original meaning and a great concern for federalism.

Justice Alito, writing for the Majority, held that the Double Jeopardy Clause, which protects against being ‘twice put in jeopardy’ ‘for the same offence’, remained subject to the doctrine of separate sovereignty, specifically allowing for prosecution by a State and the federal governments based on the same charges. The Majority opinion in Gamble v. United States applies a strict literal interpretation of the Fifth Amendment (Part IIA), in doing so relying on Justice Scalia’s reasoning in Grady v. Corbin, 495 U. S. 508 (1990) where he distinguished between protection against being prosecuted for the same ‘offence’ and the same ‘act’ (at 529). Justice Alito therefore argues that, as originally understood, an ‘offence’ is defined by a law and law can only be defined by a sovereign. Given that States are sovereign creators of laws, a federal offence and a State offence pertaining to the very same conduct are not in fact ‘the same offence’ and therefore the Double Jeopardy Clause does not apply.

Justice Alito refuses to consider an argument based on the legislative history of the Double Jeopardy Clause holding that “the private intent behind a drafter’s rejection of one version of a text is shoddy evidence of the public meaning of an altogether different text.” (Part IIA). But at the same time, he claims that even if the legislative history was to be relied on, it would support the doctrine of separate sovereignty. This, however, by no means is a rejection of the importance of the original meaning of the Fifth Amendment. The Majority opinion deals extensively with the argument that the doctrine of separate sovereignty goes against the English common law understanding of the rule against double jeopardy pre-dating the adoption of the Fifth Amendment, but it rejects this argument as both unsubstantiated (Part IIIA) as well against a long strain of US cases going back as far as 1847. The Majority invokes the case of Fox v. Ohio, 5 How. 410 (1847) where, at 435, the Supreme Court held that “offences falling within the competency of different authorities to restrain or punish them would not properly be subjected to the consequences which those authorities might ordain and affix to their perpetration.” (Part IIB).

Finally, Justice Alito adds yet another layer of argument – federalism. For him, States could be compared to foreign countries in terms of their sovereignty vis-a-vis the federal government. Justice Alito argues that in the absence of the doctrine of separate sovereignty, American courts would not be able to try people who have been tried in foreign courts as this would inevitably trigger the Double Jeopardy Clause. In fact, he states that “[the] Constitution rests on the principle that the people are sovereign, but that does not mean that they have conferred all the attributes of sovereignty on a single government” (Part IIB).

On the other hand, Justice Gorsuch, in his Dissenting opinion, rejects the Majority opinion as grounded nowhere in the Constitution. He argues that the history of the western legal tradition, the legislative history of the Fifth Amendment as well as the English common law understanding of the rule against double jeopardy all point to the word ‘offence’ as not having any technical meaning allowing for a double set of prosecution by a State and the federal governments.

Interestingly, Justice Thomas, used his Concurring opinion, submitted in addition to the Majority opinion which he joined, to re-emphasise his latest criticism of the doctrine of stare decisis as an inviolable rule:

“Given that the primary role of federal courts today is to interpret legal texts with ascertainable meanings, precedent plays a different role in our exercise of the ‘judicial Power’ than it did at common law. In my view, if the Court encounters a decision that is demonstrably erroneous—i.e., one that is not a permissible interpretation of the text—the Court should correct the error, regardless of whether other factors support overruling the precedent. Federal courts may (but need not) adhere to an incorrect decision as precedent, but only when traditional tools of legal interpretation show that the earlier decision adopted a textually permissible interpretation of the law. ” (Part C)

Beyond the impact on the Double Jeopardy Clause, Gamble v. United States appears to be important as it falls within the recent trend of cases decided by the US Supreme Court based on some form of historical approach. In this case, both the Majority and the Dissent argued mainly over the history of the western legal tradition, the legislative history of the Fifth Amendment and the old English common law understanding of the rule against double jeopardy. Crucially, this includes not only the five originalists, but also the four liberals.

Trump Administration Litigation Tracker (Ongoing/Prospective/Resolved)

ONGOING

 

Census citizenship question challenge

CaseState of New York v US Department of Commerce, 18-CV-5025 (JMF)

Stage: On appeal before the Supreme Court

Question: Whether adding a citizenship question to the 2020 census is lawful?

Background: While preparing for the upcoming 2020 nation-wide census, the Trump Administration has planned to add a question about one’s citizenship to the list of questions the census will ask. Such a census takes place every ten years and affects how federal funding and seats in the House of Representatives are apportioned. The Trump Administration argues that the citizenship question is necessary in order to comply with the Voting Rights Act 1964 and that this question has been asked during all but one censuses from 1820 to 2000. However, Democratic states, along with some NGOs, such as ACLU, argue that the citizenship question would distort the outcome of the census by deterring illegal immigrants from participating. To this effect, they sued to prevent the Trump Administration from changing the 2020 census questions. On 5 January 2019, the District Court for the Southern District of New York ruled in State of New York v US Department of Commerce, 18-CV-5025 (JMF) that Commerce Secretary’s decision to add the citizenship question violated the Administrative Procedure Act 1946 governing the creation of new regulations by administrative agencies. The Court held that the rationale for adding the citizenship question was ‘pretextual’ and the decision was made in violation of the Administrative Procedures Act 1946 because it had failed to ‘consider all important aspects of a problem’ as required by the Act, implying also that the true intentions behind the citizenship question was in fact to deter participation (Bloomberg). Ordinarily, the decision of the District Court for the Southern District of New York would have to be appealed to the US Court of Appeals for the 2nd Circuit. However, the Trump Administration petitioned the Supreme Court to hear the appeal bypassing the Court of Appeals. The Supreme Court agreed given that census questionnaires must be ready in the summer of 2019 and with an ordinary appellate procedure, it would not have been possible to meet this deadline.

Prospects: The Supreme Court will hear the case in April 2019 and the ruling is expected to be delivered in June 2019, before the Justices adjourn for the summer (CNN). It is not clear how the Court will rule as the case involves technical administrative issues of the Administrative Procedure Act 1946. If the Trump Administration is able to establish that all internal procedures have been dully followed, the Court will be rather unlikely to find the question unlawful on ‘pretextual’  grounds.

Significance: The case of State of New York v US Department of Commerce,18-CV-5025 (JMF) will have a huge impact on the appropriation of federal funding and seats in the House of Representatives among States as, under US Constitution, Article 1, Clause 3, those depend on States population numbers. ACLU claims that adding the citizenship question would stop about 6.5 million people from entering their details in the census which could lead to States with a large portion of illegal immigrants, such as California, loosing billions of dollars in federal funding as well as between one and three seats in the House of Representatives (The Hill).

 

2nd Amendment challenge

CaseNew York State Rifle & Pistol Association Inc. v. City of New York, No. 15-638 (2d Cir. 2018)

Stage: On appeal before the Supreme Court

Question: Does the 2nd Amendment protect the right of gun owners to transport their firearms outside their homes?

Background: So far the Supreme Court’s jurisprudence on the 2nd Amendment is limited to two cases only. In 2008, the Court ruled in District of Columbia v. Heller, 554 U.S. 570 2008 that the 2nd Amendment protected the individual right to possess firearms within the confines of one’s home for the purposes of self-defence. In 2010, the rule was extended in McDonald v. Chicago, 561 U.S. 742 2010 to apply to States as well. However, since then, the Court has taken very few cases concerning the scope of the 2nd Amendment (but see e.g. Caetano v. Massachusetts, 577 U.S. (2016)). This has left at least two big issues largely unresolved. First, what types of firearms are covered by the 2nd Amendment? Secondly, does the 2nd Amendment cover public arena outside one’s home? Both issues have been hotly litigated over, especially in the Blue States. On 24 July 2018, a three-judge panel of the Court of Appeals for the 9th Circuit ruled, in the case of Young v State of Hawaii No. 12-17808, that the 2nd Amendment did in fact protect the right to bear arms in public. This is in spite of the 2016 decision of the same Court in Peruta v. County of San Diego, 824 F.3d 919, 939 (2016), which, sitting en banc, upheld a complete ban on carrying any firearms outside one’s home. However, the latter case was distinguished on the grounds that it was concerned with a concealed-carry while the former was concerned with an open-carry. Regardless, the 2nd Amendment jurisprudence of the 9th Circuit stands in open opposition to other Circuits, such as the 7th Circuit which held in 2013, in the case of Moore v Madigan, USDC 11-CV-405-WDS, 11-CV-03134; 7th Cir. 12-1269, 12-1788, that a complete ban on concealed carry was unconstitutional.

Prospects: There is a very strong chance the Supreme Court will hold that the 2nd Amendment protects the right of gun owners to transport their firearms to various locations for lawful purposes. The ruling, however, is likely to be narrow in scope and might not address the question of whether the 2nd Amendment protects the right to carry arms outside one’s home in general, whether by way of open or concealed carry. Out of the five Justices constituting the majority in District of Columbia v. Heller,554 U.S. 570 2008, two (Justices Kennedy and Scalia) are no longer on the bench. However, Justices Gorsuch and Kavanaugh who have replaced them, both have a strong record on the 2nd Amendment (e.g. Heller v. District of Columbia, No. 10–7036. 2011; Peruta v. County of San Diego, 824 F.3d 919, 939 (2016) dissenting from the denial of certiorari).

Significance: The case of New York State Rifle & Pistol Association Inc. v. City of New York, No. 15-638 (2d Cir. 2018) will have a huge impact on the operation of the right to bear arms under the 2nd Amendment. So far the Supreme Court has recognised the right to possess and use firearms in self-defence at home. This case might expand this right to at least some public areas in at least some circumstances.

 

ObamaCare challenge

CaseTexas v the United States, No. 4:18-cv-00167-O

Stage: On appeal before the Court of Appeals for the 5th Circuit

Question: Whether the Affordable Care Act 2010 (ObamaCare), as amended by the Tax and Jobs Act 2017, is unconstitutional (in part or in entirety)?

Background: So far ObamaCare has withstood, albeit not in its entirety, several challenges before the Federal Courts. In 2012, the US Supreme Court ruled in the case of National Federation of Independent Business v. Sebelius, 567 U.S. 519 2012 that, inter alia, although the Individual Mandate (i.e. the requirement that all individuals buy health insurance plans) was not a valid exercise of the Congress’s power to regulate inter-state commerce, the penalty for its breach could be read as a tax and thereby be a valid exercise of the Congress’s taxation power instead. This is because the so called ‘penalty’ for breaching the Individual Mandate was limited to a financial fee processed by the IRS together with individuals’ income taxes. This ‘saving construction’ persuaded Chief Justice Roberts who joined the four liberal Justices on the Court and voted to uphold the Individual Mandate. However, the Tax and Jobs Act 2017 passed by Congress in 2017 eliminated this tax/penalty while leaving the Individual Mandate as such intact. In those circumstances, several Red States sued in a Texas federal District Court again claiming that the elimination of the tax had rendered the Individual Mandate unconstitutional as now, in the absence of any tax attached to it, it could only be construed as an exercise of the Congress’s power to regulate inter-state commerce and that would violate the holding of National Federation of Independent Business v. Sebelius, 567 U.S. 519 2012. On 14 December 2018, the District Court issued its judgment. Judge O’Connor analysed the effect of the elimination of the tax attached to the Individual Mandate by the Tax and Jobs Act 2017 and found that, in the absence of any tax, the Individual Mandate could not possibly fall within the Congress’s taxation power. The Court struck down the whole of ObamaCare holding that the Individual Mandate was inseverable from the rest of the law. The House of Representatives, under Democratic control, intervened before the Court to defend that law and appealed the ruling to the Court of Appeals for the 5th Circuit. Initially, the Trump Administration, argued that parts of ObamaCare  were severable from the Individual Mandate and should be upheld, however, on 26 March 2019, the Department of Justice amended its stance petitioning the Court of Appeals to uphold the District Court’s ruling in its entirety, ie, strike down the whole of ObamaCare (CNN).

Prospects: There is a very strong chance that the Court of Appeals for the 5th Circuit (with 11 Republican-appointees and 5 Democrat-appointees) will strike down the Individual Mandate as unconstitutional. However, the question of severibility is more complex. The Court might declare only parts of the law inseverable from the Individual Mandate (e.g. community ratings) and uphold the rest. In any event, the case is bound to reach the Supreme Court regardless what the Court of Appeals decides. Before the Supreme Court, the situation is even less straightforward. When it comes to ObamaCare, Chief Justice Roberts is undoubtedly the Swing Vote. He has upheld ObamaCare at least twice already and it is highly unlikely he will let the law fall in its entirety this time. There is a decent chance the Individual Mandate will be stuck down but whether it will drag any other parts of the law with it, is impossible to tell.

Significance: The case of Texas v the United States, No. 4:18-cv-00167-O will have a huge impact on the shape of federal powers, as enumerated under Article I, Section 8 of the US Constitution. It will determine the limits of the Congress’s taxation power and once again discuss the limits of the power to regulate commerce. Furthermore, the case will provide instruction on the issue of severibility of Congressional statutes. Beyond that, the potential invalidation of ObamaCare would completely transform the healthcare market.

 

DACA rescission challenge

CaseRegents of the University of California, et al. v. United States Department of Homeland Security, et al., No. 3:17-cv-05211 (N.D. Cal.)

Stage: On appeal before the Court of Appeal for the 9th Circuit

Question: Whether the rescission of DACA is lawful and whether DACA is unconstitutional?

Background: Deferred Action for Childhood Arrivals (DACA) was announced by President Obama via an Executive Memorandum in 2012 to allow for a temporary lawful stay of illegal immigrants brought to the US as children. The policy was introduced in response to Congress not being able to pass the DREAM Act which would put the policy on a statutory footing. Since then, the policy has been challenged in the Federal Courts several times. A lawsuit against the original policy was dismissed on procedural grounds in 2013 (Fox News) but, as President Obama attempted to extend the programme, the expansion was blocked by the US Supreme Court in the case of United States v. Texas579 U.S. (2016) (although in a per curiam decision concerning an interim injunction with the crux of the matter soon becoming moot). The Trump Administration announced in 2017 that it would rescind the DACA program altogether as incompatible with federal immigration laws on the books. This was challenged in Regents of the University of California, et al. v. United States Department of Homeland Security, et al., No. 3:17-cv-05211 (N.D. Cal.). At the same time, Texas, along with other States, once again challenged the constitutionality of DACA before the District Court for the Southern District of Texas in Texas, et al. v. United States, No. 18-00068 (S.D. Tex. May 1, 2018). The case is still pending before the Court.

Prospects: The constitutionality of DACA will undoubtedly be eventually resolved by the Supreme Court. It is, however, not clear whether the Court will address the constitutionality of the programme as such when considering whether its rescission was lawful (Regents of the University of California, et al. v. United States Department of Homeland Security, et al., No. 3:17-cv-05211 (N.D. Cal.)). If not, this question will likely be resolved in Texas, et al. v. United States, No. 18-00068 (S.D. Tex. May 1, 2018), when it finally reaches the Supreme Court. At that point, Justices Gorsuch, Thomas, Alito and Kavanaugh are likely to take a narrow view of executive power which must necessarily lead them to the conclusion that DACA was an attempt by the Obama Administration to circumvent Congress which was unable to pass the necessary legislation (DREAM Act) and therefore constituted an executive overreach. Consequently, the issue will ultimately come down to Chief Justice Roberts as the deciding vote.

Significance: The case of Regents of the University of California, et al. v. United States Department of Homeland Security, et al., No. 3:17-cv-05211 (N.D. Cal.) will have a huge impact on the shape of executive power. It will determine the limits of inherent Presidential powers vis-a-vis statutes. Beyond that, the potential invalidation of DACA would completely transform the immigration system and put millions of illegal immigrants at risk of deportation.

 

Affirmative action challenge

Case: Students for Fair Admissions v Harvard

Stage: Pending before the District Court for the District of Massachusetts

Question: Whether affirmative action constitutes unlawful discrimination under the Equal Protection clause of the 14th Amendment?

Background: On 15 October 2018, a lawsuit against the Harvard University alleging race discrimination went on trial before a federal District Court in Boston. The lawsuit was brought by the Students for Fair Admissions founded by anti-affirmative action activist Edward Blum and is supported by the Trump Administration. Technically, the constitutionality of affirmative action has already been confirmed on several occasions, for the first time in 1978 in the case of Regents of the University of California v. Bakke, 438 U.S. 265 1978, then in 2003 in Grutter v. Bollinger, 539 U.S. 306 2003 and most recently in 2016 in the case of Fisher v. University of Texas, 579 U.S. (2016) (Fisher II). However, even so upheld, affirmative action is legally limited only to situations where no race-neutral solutions would be effective in increasing the number of minority students accepted by a University. The lawsuit now alleges that the Harvard University has not properly considered race-neutral admission schemes before factoring race in its application process (Reuters). In this type of lawsuits, the burden of proof rests on a University to justify the use of race as a consideration in its admission process. In any event, if this cases proceeds to the US Supreme Court, the Court might rule on the constitutionality of affirmative action in general.

Prospects: There is a very strong chance that the Supreme Court will declare affirmative action unconstitutional. The recent decisions on this issue have been extremely closely decided and Justice Kennedy has been the one casting the deciding vote. Now that Justice Kennedy has been replaced by Judge Kavanaugh, the Court might easily swing the other way. This is even more likely given that, while upholding the practice in Fisher v. University of Texas579 U.S. (2016), the Court held that Universities must continue to review their affirmative action practices to ascertain whether they are still required. With Justice Kennedy gone, the five conservative Justices might simply come to a conclusion that there is no longer any need to consider race in admission processes. When it comes to affirmative action, Chief Justice Roberts has always consistently voted to declare it unconstitutional and it would be surprising for him to suddenly switch sides.

Significance: The case of Students for Fair Admissions v Harvard will have a huge impact on the operation of the Equal Protection clause of the 14th Amendment and the understanding of what constitutes racial discrimination. Beyond that, the potential invalidation of academic admission processes based on affirmative action would completely transform the basis on which universities accept new students.

 

Emergency declaration challenge

Case: State of California et al v. Trump et al

Stage: Pending before the District Court for the Northern District of California

Question: Whether President Trump’s national emergency declaration on the US-Mexico border wall is lawful under the National Emergencies Act 1976?

Background: On February 15, 2019, President Trump declared a National Emergency Concerning the Southern Border of the United States (Proclamation 9844) under the National Emergencies Act 1976 to channel funds for the construction of a wall at the US-Mexico border. The Declaration came after President Trump had been unable to obtain $5.7 billion in funding for the wall in the 2019/2020 budget due to Congress refusing his requests. The disagreement between President Trump, Republican Senate and the Democratic House of Representatives, preceding the Declaration, led to a 35 day-long government shutdown (the longest in the US history), which ended with Congress passing a bipartisan funding bill containing $1.375 billion for new fencing on 55 miles of the border. Immediately after the budget was passed by Congress and accepted by President Trump, he issued Proclamation 9844 redirecting $8 billion in previously-agreed expenditure to build the wall instead. The funding comes from planned military construction expenditures ($3.6 billion), the Department of Defense’s drug interdiction activities ($2.5 billion) and Treasury’s forfeiture funds ($600 million). In response, Congress passed, under the National Emergencies Act 1976, a Resolution seeking to nullify Proclamation 9844, however, President Trump vetoed it therefore leaving Proclamation 9844 in effect (Reuters). At this point, California, together with other States, sued in State of California et al v. Trump et al to stop Proclamation 9844 as unlawful under the National Emergencies Act 1976 and therefore in violation of the Appropriation Clause contained in Article I, Section 9 of the US Constitution. The Appropriation Clause stipulates that Congress is the sole body responsible for allocating funds and Presidents cannot unilaterally channel funding for any purpose they want. However, in the National Emergencies Act 1976, Congress empowered Presidents to take unilateral executive action (including funding allocation) in 136 distinct areas in times of  ’emergency’. Unfortunately, the legislation fails to define ’emergency’ and therefore seems to leave a wide discretion to the executive branch. Since the National Emergencies Act 1976 was enacted, a number of national emergencies have been declared (Carter (2); Reagan: (6); H.W. Bush (4); Clinton (17); W. Bush (12); Obama: (13); Trump (4) (Snopes).

Prospects: It is highly likely that President Trumps Emergency Declaration will be declared unlawful in the District Court and the Court of Appeals for the 9th Circuit which in recent years have tended to side with Democratic challengers. No doubt the case will ultimately proceed to the Supreme Court. However, it is unclear how the Justices might vote on this issue.

Significance: The case of State of California et al v. Trump et al will have a huge impact on the limits of Presidential emergency powers under the National Emergencies Act 1976. It will also discuss the operation of the Appropriation Clause and the rules regarding the allocation of funding. Beyond that, the case can prevent the construction of the wall at the border with Mexico which constitutes a crucial element of President’s Trump immigration policy.

 

Transgender ban challenge

CaseKarnoski v. Trump, 2:17-cv-01297-MJP

Stage: Pending before the District Court for the Western District of Washington

Question: Whether President Trump’s Memorandum preventing people diagnosed with gender dysphoria from serving in the US military is constitutional?

Background: On 23 March 2018, President Trump issued the Presidential Memorandum on Military Service by Transgender Individuals reversing President Obama’s policy of encouraging transgender military personnel to be open about their sexuality. The Memorandum is a variation of the traditional “Don’t Ask, Don’t Tell” policy. It allows transgender people to join the military provided they identify in line with their biological sex and are not diagnosed with gender dysphoria. The Memorandum also allows current transgender military personnel to continue to serve, however, unlike under President’s Obama, the military will not fund their transgender surgeries (Reason). The Memorandum was challenged in Karnoski v. Trump, 2:17-cv-01297-MJP before the District Court for the Western District of Washington on the grounds that it was issued contrary to the Due Process Clause of the 5th Amendment as a denial of equal protection by the federal government and to the 1st Amendment as violation of the right to free expression and association. While the merits of the case were being considered, the Court issued an injunction which was appealed to the Court of Appeals for the 9th Circuit. The Court upheld it which was appealed against to the Supreme Court which voted 5-4 to lift the stay and allow the Memorandum to go into effect. The merits of the challenge are still being considered by the District Court.

Prospects: Given the decision of the Supreme Court to lift the injunction and allow the Memorandum to go into effect while the merits of the case were being considered by the District Court, there is a strong chance that the Memorandum will be ultimately upheld, if not by lowers Courts, then by the Supreme Court.

Significance: The case will have a huge impact on the operation of the 1st Amendment (freedom of expression/association), 5th Amendment (Due Process Clause) and the 14th Amendment (Due Process Clause & Equal Protection Clause) in relation to transgender people. Beyond that, the decision will have some impact on the position of transgender personnel currently serving in the US military and potential new recruits.

 

Sanctuary cities funding challenge

CaseCity and County of San Francisco v. Trump or San Francisco v. Trump, No. 3:17-cv-00485 (N.D.Cal. 2017)

Stage: Pending before the District Court for the Northern District of California

Question: Whether the withdrawal of funding from sanctuary cities is lawful and whether sanctuary policies are constitutional?

Background: The question of funding for sanctuary cities is inextricably linked with the question of lawfulness of sanctuary policies. On 25 January 2017, President Trump issued Executive Order 13768 stating that sanctuary jurisdictions which refuse to comply with immigration enforcement would not receive federal grants (except where necessary for law enforcement purposes as determined by the Attorney General or Secretary of Homeland Security). In response, San Francisco sued the Trump Administration alleging that the withdrawal of funding violated the 10th Amendment which states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” While the case was being considered on its merits, the District Court issued a nationwide preliminary injunction against Executive Order 13768 which was appealed by the Trump Administration to the Court of Appeals for the 9th Circuit. The Court of Appeals upheld the injunction but struck down its nationwide application and remanded the issue back to the District Court for further consideration. The question of constitutionality of sanctuary polices has never been answered by the Supreme Court. However, in its 10th Amendment jurisprudence, the Court has developed the anti-commandeering doctrine which stipulates that the Federal Government cannot compel States to enforce federal law. The doctrine has been applied to prevent the Federal Government from forcing States to take ownership of radioactive waste (New York v. United States, 505 U.S. 144 (1992)) and conduct background checks on people attempting to purchase handguns (Printz v. United States, 521 U.S. 898 (1997)). It was also used to strike down federal legislation preventing States from legalising sport betting (Murphy v. National Collegiate Athletic Association, No. 16-476, 584 U.S. (2018)). This doctrine is also relied on by States to justify their refusal to cooperate with the Federal Government in relation to immigration enforcement. On the other hand, the Trump Administration relies on the Supremacy Clause under Article VI, Clause 2 of the US Constitution which stipulates that “this Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Under the Supremacy Clause, State statutes, jurisprudence and actions cannot violate Federal law. In its Supremacy Clause jurisprudence, the Supreme Court ruled that a state law could be found unconstitutional even where it is not in direct conflict with a federal law but “is an obstacle to the accomplishment and execution of Congress’s full purposes and objectives” (Crosby v. National Foreign Trade Council530 U.S. 363 (2000)).

Prospects: The current Supreme Court seems to favour the concept of federalism and therefore usually recognises the importance of State rights. If the anti-commandeering doctrine is found to apply to sanctuary policies, the Court will likely uphold this practice and strike down any attempt to withdraw funding from such jurisdictions. It is not, however, clear whether the doctrine does in fact apply and how it interacts with the Supremacy Clause when it comes to immigration enforcement.

Significance: The case of City and County of San Francisco v. Trump or San Francisco v. Trump, No. 3:17-cv-00485 (N.D.Cal. 2017) will have a huge impact on the concept of federalism and the operation of the 10th Amendment. It might transform the legal understanding of State rights and Federal power. Beyond that, the potential invalidation of sanctuary policies might put millions of illegal immigrants at risk of deportation.

 

PROSPECTIVE

1. A lawsuit by the House of Representatives challenging Attorney General Barr’s refusal to provide the House Judiciary Committee with a full and underacted copy of the Mueller Report.

2. A lawsuit by the House of Representatives challenging Treasury Secretary Mnuchin’s refusal to provide the House Ways and Means Committee with President Trump’s tax returns for the last six years.

3. A lawsuit against legislation of Kentucky, Mississippi and Ohio (and potentially other States) prohibiting abortion once the foetus’s heartbeat can be detected.

 

RESOLVED

1. A lawsuit against President Trump’s Executive Order 13780 (travel ban) limiting entry to the US from Iran, Libya, Syria, Yemen, Somalia, North Korea and Venezuela (Trump v. Hawaii, No. 17-965, 585 U.S. (2018)).

SCOTUS reins in civil asset forfeiture

On 20 February, the US Supreme Court unanimously held, in the case of Timbs v. Indiana, 586 U.S. ___ (2019), that the prohibition on excessive fines contained in the 8th Amendment applied to States (as well as the federal government) and prevented Indiana from confiscating a Land Rover worth $42,000 just because it had been used during a drug transaction. The judgment is significant because it is a rare case of the Court limiting States’ civil asset forfeiture powers but also because of its discussion of the Bill of Rights’ selective incorporation process.

Civil asset forfeiture is a legal tool used by law enforcement to confiscate private property from persons suspected of illegal activity without necessarily charging them with any wrongdoing. According to some estimations, between 2011 and 2014, local and state agencies confiscated $2.5 billion in approximately 62,000 cash seizures conducted ‘without search warrants or indictments’ (The Washington Post). When it comes to the federal government, in 1985, the Justice Department’s Assets Forfeiture Fund brought in $27 million but by 2017, that figure skyrocketed to $1.6 billion (The Atlantic). In Timbs v. Indiana, 586 U.S. ___ (2019), Justice Ginsburg, writing for the majority, referred to the protection from excessive fines as a historically important safeguard recognised as early as the Magna Carta. However, the effective application of the Excessive Fine Clause of the 8th Amendment is a novelty in the Court’s jurisprudence as the Court found a violation of the Excessive Fine Clause for the first time in 1998, in United States v. Bajakajian524 U.S. 321 (1998).

The 8th Amendment prohibits, among other things, ‘excessive fines [being] imposed’. In Waters-Pierce Oil Co. v. Texas212 U.S. 86 (1909), the Supreme Court held that excessive fines were defined as fines ‘so grossly excessive as to amount to a deprivation of property without due process of law’. In Austin v. United States, 509 U.S. 602 (1993), the Court ruled for the first time that the Excessive Fines Clause applied to civil asset forfeiture conducted by the federal government, but the case was silent on its potential application to States’ actions.

Originally, just as the other Amendments constituting the Bill of Rights, the 8th Amendment was meant to apply only against the federal government. After the Civil War, with the enactment of the 14th Amendment, the Courts began to apply various safeguards contained in the Bill of Rights against States as well as the federal government. Throughout that time, the Courts usually invoked the Due Process Clause of the 14th Amendment as the provision rendering the Bill of Rights applicable against States. In Timbs v. Indiana, 586 U.S. ___ (2019), 7 Justices, in the opinion written by Justice Ginsburg, held that the 8th Amendment applied against the State of Indiana by virtue of the Due Process Clause. On the other hand, Justice Thomas, while concurring in the outcome of the case, produced a separate opinion on the issue of the selective incorporation where he explained that the application of the Bill of Rights against States was possible by virtue of the Privileges or Immunities Clause of the 14th Amendment, rather than the Due Process Clause. Justice Neil Gorsuch, who joined the majority opinion, also wrote a concurring opinion, agreeing with Justice Thomas on the issue of the selective incorporation.

The ruling is expected to have a considerable impact on the the use of civil asset forfeiture as it establishes a strong protection against its abuse, now applicable to both the federal and States’ governments. The case also signals potential future discussions among Justices on the effect of the 14th Amendment on the selective incorporation.

Supreme Court to Hear 2nd Amendment Case for the First Time in 9 Years (SCOTUS)

In August 2018, The Jurist’s Corner speculated that one of the cases to look for in the next US Supreme Court term would be a 2nd Amendment case. On 22 January 2019, the Supreme Court announced that it would hear a case from New York concerning restrictions on transporting firearms outside one’s home (CNBC). The case of New York State Rifle & Pistol Association Inc. v. City of New York, No. 15-638 (2d Cir. 2018) comes 9 years since the Court last considered a 2nd Amendment case and 11 years since the landmark decision in District of Columbia v. Heller, 554 U.S. 570. The Supreme Court will now decide if the New York law preventing gun owners from transporting lawfully owned firearms, except to and from shooting ranges, is compatible with the 2nd Amendment.

So far the Supreme Court’s jurisprudence on the 2nd Amendment is limited to two cases only. In 2008, the Court ruled in District of Columbia v. Heller, 554 U.S. 570 2008 that the 2nd Amendment protected the individual right to possess firearms within the confines of one’s home for the purposes of self-defence. In 2010 the rule was extended in McDonald v. Chicago, 561 U.S. 742 2010 to apply to States as well. However, since then, the Court has taken very few cases concerning the scope of the 2nd Amendment (but see e.g. Caetano v. Massachusetts, 577 U.S. ___ (2016)). This has left at least two big issues largely unresolved. First, what types of firearms are covered by the 2nd Amendment? Secondly, does the 2nd Amendment cover public arena outside of one’s home? Both issues have been hotly litigated over, especially in the so called Blue States. On 24 July 2018 a three-judge panel of the Court of Appeals for the 9th Circuit ruled in the case of Young v State of Hawaii No. 12-17808 that the 2nd Amendment did in fact protect the right to bear arms in public. This is in spite of the 2016 decision of the same Court in Peruta v. County of San Diego, 824 F.3d 919, 939 (2016), which, sitting en banc, upheld a complete ban on carrying any firearms outside one’s home. However, the latter case was distinguished on the grounds that it was concerned with a concealed-carry while the former was concerned with an open-carry. Regardless, the 2nd Amendment jurisprudence of the 9th Circuit stands in open opposition to other Circuits, such as the 7th Circuit which held in 2013 in the case of Moore v Madigan, USDC 11-CV-405-WDS, 11-CV-03134; 7th Cir. 12-1269, 12-1788 that a complete ban on concealed carry was unconstitutional. This situation constitutes a clear example of the so called ‘circuit split’ which creates a pressure on the Supreme Court to resolve the issue rather sooner than later.

However, in 2018, the Supreme Court refused to hear any case that would resolve the circuit split and avoided ruling on the wider issue of the right to carry firearms outside one’s home. Now, it seems, the Court is slowly engaging with this question, although it might take more than just one case to establish some clear principles on the issue. The appointment of Judge Kavanaugh as a new Supreme Court Justice will probably have a considerable impact on this case, and any similar cases in the future, as he has a strong record on the 2nd Amendment (e.g. Heller v. District of Columbia, No. 10–7036. 2011).

Homeschooling Unprotected by ECHR (ECtHR)

On 10 January 2019, the European Court of Human Rights ruled, in the case of Wunderlich v. Germany (App. no.: 18925/15), that the German ban on homeschooling did not breach the right to private and family life under Article 8 of the European Convention on Human Rights. The case was brought by a Christian family who had refused to register their oldest daughter in a school in accordance with German law. As a result, they were fined and prosecuted by the German authorities and the child was temporary taken into care to enforce the school attendance requirement.

The European Court of Human Rights held that the actions of the German state, although interfered with the Article 8(1) rights, were justified for the purposes of protecting the health, rights and freedoms of the children (under Article 8(2)). When considering the case, the Court referred to its previous jurisprudence on the issue of compulsory public education. It recalled that “the State, in introducing such a system, had aimed at ensuring the integration of children into society with a view to avoiding the emergence of parallel societies, considerations that were in line with the Court’s own case-law on the importance of pluralism for democracy and which fell within the Contracting States’ margin of appreciation in setting up and interpreting rules for their education systems...” (para 50).

The Court held further that although the removal of the child from the parent’s care was a very intrusive measure, it was not disproportionate given that it was only temporary and that all other measures (such as fines and regulatory penalties) had already failed to persuade the parents to comply with the school requirement. In considering the question of proportionality, the Court gave “due account to the margin of appreciation to be accorded to the competent national authorities, which had the benefit of direct contact with all of the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation...” (para 47).

The case leaves no doubt that homeschooling is not protected under the European Convention on Human Rights. In contrast, the US Supreme Court has ruled on several occasions that the US Constitution protects the right to homeschooling. As early as 1925, in the case of Pierce, Governor of Oregon, et al. v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925), the Court struck down an Oregon statute requiring all children to attend public school. It was held that children were not ‘the mere creature[s] of the state’ (para 535) and that the responsibility for education belonged to parents so the Court deemed the ability to make educational choices a ‘liberty’ within the meaning of the 14th Amendment (thereby expanding the so called Substantive Due Process doctrine in its jurisprudence). Furthermore, almost 50 years later, in the case of Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court also upheld the right of an Amish family to withdraw their children from public school past 8th grade It was ruled that States could not force families to send their children to attend school where it would infringe their (legitimate) religious beliefs protected under the First Amendment.

Christian Baker Sues Colorado for Anti-religious Hostility

In June 2018, the US Supreme Court ruled 7-2, in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. (2018), that the Colorado Civil Rights Commission had violated a Christian baker’s freedom of religion under the First Amendment when it punished him for refusing to create a personalised wedding cake for a gay couple. The Court held that the Commission, when considering the case, manifested hostility towards the baker’s religious beliefs.

Shortly afterwards, the Masterpiece Cakeshop got involved in another incident when it refused to make a cake with a transgender message, which, despite the earlier ruling from the Supreme Court, led to yet another set of proceedings before the Colorado Civil Rights Commission (The Denver Post). In August 2018, the Masterpiece Cakeshop owner sued the State of Colorado in a federal District Court claiming religious persecution. The lawsuit alleges violation of the First and the 14th Amendments. On 08 January 2019, Judge Wiley Y. Daniel of the U.S. District Court for the District of Colorado ruled that the lawsuit against Colorado could proceed (Fox News).

The case is considered of high importance as it is likely that regardless of its outcome before the District Court, it will move up the judicial ladder towards the Supreme Court. Although the Court has already ruled on this issue, its conclusions were reached on very narrow grounds. The wider question of the priority of the freedom of religion under the First Amendment over non-discrimination legislation still remains open.

US Supreme Court to Hear Cross-shaped War Memorial Case

On 2 November 2018, the US Supreme Court issued a writ of certiorari to the Court of Appeals for the 4th Circuit in the case of American Humanist Association v Maryland-National Capital Park and Planning Commission No. 15-2597 2017, thereby agreeing to hear the case of a 93-year-old war memorial in the shape of a cross (SCOTUS Blog). The memorial was completed in 1925 to commemorate 49 local residents who had died in World War I. In 2014, the American Humanist Association sued Maryland public bodies responsible for the upkeep of the monument alleging that it “discriminates against patriotic soldiers who are not Christian, sending a callous message to non-Christians that Christians are worthy of veneration while they may as well be forgotten” (Fox News). In 2017, the Court of Appeals for the 4th Circuit ruled 2-1 in the case of American Humanist Association v Maryland-National Capital Park and Planning Commission No. 15-2597 2017 that even assuming that the monument had some nonreligious function, “the sectarian elements easily overwhelm the secular ones” and that “the cross is by far the most prominent monument in the area, conspicuously displayed at a busy intersection” [p22] and as such its presence on a public land violated the Establishment Clause of the First Amendment. In March 2018 the Court sitting en benc refused to reconsider the case and Maryland petitioned the Supreme Court for a permission to appeal (The Washington Post).

The jurisprudence of the US Supreme Court in cases concerning the Establishment Clause is far from being clear. The Court has struggled over the years to agree on a set of precise directions as to when a religious symbol on a public land would violate the First Amendment. This has led to confusing rulings whereby some symbols have been upheld and others not. For instance, in 2005, in the case of Van Orden v. Perry, 545 U.S. 677, the Court ruled 5-4 that a Ten Commandments monolith on the Texas State Capitol grounds did not violate the Constitution. On the other hand, on the same day in 2005, in the case of McCreary County v. ACLU of Kentucky, 545 U.S. 844, the Court also ruled 5-4 that a Ten Commandments display at the McCreary County courthouse in Kentucky did violate the First Amendment. The two cases were extremely similar yet the Court reached the opposite conclusions. In both cases it was Justice Breyer who acted as the Swing Vote. With those two cases, the US Supreme Court has sent mixed signals to lower courts on the subject of the Establishment Clause. Nevertheless, the Court is now almost 15 years older and its composition has also changed, presumably became more conservative in nature. As a result, the majority of the bench might now have enough votes to articulate some clear guiding principles as to how lower courts should deal with similar cases in the future.

Interesting Cases to Look For during the Next US Supreme Court Term

While the US Supreme Court is in recess now, there are several potentially monumental cases which are either being processed in lower Courts at the moment or are likely to end up before the federal courts soon, which are due to eventually bubble up during the high court’s next term. As the Court reconvenes in October 2018, it will also most likely have a new member, Judge Kavanaugh, whom the Senate Republicans plan to confirm in September 2018 thereby consolidating a solid conservative majority on the bench. The Supreme Court so constituted, will face requests to adjudicate on a whole series of tough issues, some of which are now long overdue.

Here is a list of 6 big questions the US Supreme Court might be asked to answer during its next term:

1. Whether the 2nd Amendment Protects the Right to Bear Arms outside One’s Home

In its landmark 2008 opinion, the US Supreme Court ruled in District of Columbia v. Heller (554 U.S. 570 2008) that the 2nd Amendment protected the individual right to possess firearms within the confines of one’s home for the purposes of self-defence. In 2010 the rule was extended in McDonald v. Chicago (561 U.S. 742 2010) to apply to States as well. However, since then, the Court has taken very few cases concerning the scope of the 2nd Amendment (but see e.g. Caetano v. Massachusetts, 577 U.S. ___ (2016)). This leaves two big issues largely unresolved. First, what types of firearms are covered by the 2nd Amendment? Secondly, does the 2nd Amendment cover public arena outside of one’s home? Both issues are hotly litigated over, especially in the so called Blue States. On 24 July 2018 a three-judge panel of the Court of Appeals for the 9th Circuit ruled in the case of Young v State of Hawaii No. 12-17808 that the 2nd Amendment did in fact protect the right to bear arms in public. This is in spite of the 2016 decision of the same Court in Peruta v. County of San Diego, 824 F.3d 919, 939 (2016), which, sitting en banc, upheld a complete ban on carrying any firearms outside one’s home. However, the latter case was distinguished on the grounds that it was concerned with a concealed-carry while the former was concerned with an open-carry. Nevertheless, the State of Hawaii is entitled to apply for a reconsideration of this decision by an en banc Court which, given a strong liberal nature of the 9th Circuit, is likely to result in a reversal of the original decision. Regardless, the 2nd Amendment jurisprudence of the 9th Circuit stands in open opposition to other Circuits, such as the 7th Circuit which held in 2013 in the case of Moore v Madigan (USDC 11-CV-405-WDS, 11-CV-03134; 7th Cir. 12-1269, 12-1788) that a complete ban on concealed carry was unconstitutional. This situation constitutes a clear example of the so called ‘circuit split’ which creates a pressure on the Supreme Court to resolve the issue rather sooner than later. Here the appointment of Judge Kavanaugh as a new Supreme Court Justice might be of considerable impact as he has a strong record on the 2nd Amendment (e.g. Heller v. District of Columbia No. 10–7036. 2011).

2. Whether the ObamaCare’s Individual Mandate Has Been Rendered Unconstitutional by The Tax Cuts and Jobs Act 2017

So far the ObamaCare has withstood, albeit not in its entirety, several challenges before the federal courts and a new one is gaining momentum now. In 2012 the US Supreme Court ruled in the case of National Federation of Independent Business v. Sebelius (567 U.S. 519 2012) that, inter alia, although the Individual Mandate was not a valid exercise of the Congress’s power to regulate inter-state commerce, it could be read as a tax and thereby be a valid exercise of the taxation power instead. This is because the so called ‘penalty’ for breaching the Mandate was limited to a financial fee processed by the IRS together with individuals’ income taxes. This saving construction persuaded Chief Justice Roberts who joined the 4 liberal Justices on the Court and voted to uphold the Individual Mandate. However, The Tax and Jobs Act 2017 recently passed by Congress eliminates this so called tax while leaving the Individual Mandate as such intact. In those circumstances, several Red States sued again claiming that the elimination of the tax had rendered the Individual Mandate unconstitutional as now, in the absence of any tax attached to it, it could only be construed as an exercise of the Congress’s power to regulate inter-state commerce which was already declared invalid by the US Supreme Court in 2012 (Texas Tribune). However, the lawsuit goes even further as it claims that the Individual Mandate is inseverable from the rest of the law or at least from its certain parts, such as the community rating, and if it is in fact struck down by the Court, it might drag other parts of the ObamaCare with it. Given that the Trump Administration decided not to defend the lawsuit, the case is now bound to proceed further up the ladder towards the Supreme Court (The Atlantic). Interestingly, the replacement of Justice Kennedy with Judge Kavanugh might actually push the Court to reject any challenges to the ObamaCare as Judge Kavanaugh appears to have been more accommodating in this respect than his predecessor, siding with the approach of the Chief Justice rather than Justice Scalia (Seven-Sky v. Holder (No. 11–5047 2011)).

3. Whether the DACA Program (and its Rescission via Executive Action) is Constitutional

Deferred Action for Childhood Arrivals (DACA) was announced by President Obama via an Executive Memorandum in 2012 to allow for a temporary lawful stay of illegal immigrants brought to the United States as children. The policy was introduced in response to Congress not being able to pass the DREAM Act which would put it on a statutory footing. Since then, DACA has been often cited as an example of executive overreach given that it was introduced via executive action thereby circumventing the legislature. The policy has been challenged in the federal courts several times. A lawsuit against the original policy was dismissed on procedural grounds in 2013 (Fox News) but as President Obama attempted to extend the programme, the expansion was blocked by the US Supreme Court in the case of United States v. Texas, 579 U.S. ___ (2016), although in a per curiam decision concerning an interim injunction with the crux of the matter soon becoming moot. The Trump Administration announced in 2017 that it would rescind the DACA program altogether as incompatible with federal immigration laws on the books. However, on 3 August 2018, a DC District Court ruled in the case of Trustees of Princeton University v United States (1:17-cv-02325-JDB) that the rescission of DACA was unlawful because the Administration did not supply the Court with any valid reason for its decision. This is yet another signature policy of the Trump Administration after the so called Travel Ban blocked by lower federal courts and therefore the decision is bound to be appealed by the Administration in hope that the US Supreme Court will vindicate its lawfulness, as it happened in the Travel Ban case (Trump v. Hawaii, No. 17-965, 585 U.S. ___ (2018)). In this area the impact of the appointment of Judge Kavanaugh to the Supreme Court is rather difficult to predict.

4. Whether the Policy of Sanctuary Cities is Constitutional

The question of the constitutionality of sanctuary polices has been looming for decades but so far it has never been properly decided. This, however, might change now that the Trump Administration vowed to crack down on Blue States shielding illegal immigrants from federal agencies. On the one hand, the Department of Justice decided to withdraw funding from cities refusing to cooperate with the federal government in respect of immigration enforcement and in March 2018 it sued the State of California for its sanctuary policies. On the other hand, in return, two of California counties (San Francisco and Santa Clara) sued the Department of Justice claiming that such a withdrawal of funds was unconstitutional and managed even to persuade a local District Court as well as the Court of Appeals for the 9th Circuit to grant an injunction (The Washington Post). Accordingly, given how high this issue is on the Presidential agenda and how much litigation it has generated so far, one of those cases is bound to end up before the US Supreme Court sooner or later and this time the Court will have no choice but to rule on a wider issue of sanctuary policies in general. As with the DACA programme, the impact of the appointment of Judge Kavanaugh to the Supreme Court on sanctuary policies is not easy to predict.

5. Whether Affirmative Action is Constitutional

Technically, the constitutionality of affirmative action has already been confirmed on several occasions, for the first time in 1978 in the case of Regents of the University of California v. Bakke (438 U.S. 265 1978), then in 2003 in Grutter v. Bollinger (539 U.S. 306 2003) and most recently in 2016 in the case of Fisher v. University of Texas (579 U.S. (2016), commonly referred to as Fisher II. However, the recent decisions have been extremely closely decided and Justice Kennedy has been the one casting the deciding vote. Now that Justice Kennedy is being replaced by Judge Kavanaugh, the Court might easily swing the other way. So far there is no case pending before any federal court concerning affirmative action, however, there have been some moves by the Trump Administration to limits its impact, such as reversing President Obama’s policy on affirmative action in schools (NY Times) or investigating the impact of affirmative action programmes at the Harvard University on the Asian-American minority admissions (CNN). Although no case has been brought on this issue so far, there are signs that affirmative action might once again end up before the federal courts and this time Justice Kennedy will not be around to save it.

6. Whether Fetal Heartbeat Legislation is Constitutional

The opposition of Red States to the constitutional right to abortion recognised in Roe v Wade (1973) is widely known. From time, to time, this opposition materliases in a form of some State legislation hindering access to abortion in hope that it would pass the Undue Burden test imposed on this type of legislation by the Supreme Court in the case of Planned Parenthood v Casey (1992). One of such measures was passed and signed into law in the State of Iowa on 4 May 2018. The so called ‘heartbeat’ Act bans abortions as soon as fetal heartbeat could be detected, which usually happens around the sixth week into pregnancy, and as such constitutes the most restrictive abortion law in the country. Immediately, the American Civil Liberties Union sued in the Polk County District Court for a declaration of unconstitutionality as well as an interim injunction against the law which was granted on 1 June 2018 (Des Moines Register). The case is now being considered on its merits but regardless of the Court’s decision, it is bound to be appealed and eventually end up before the US Supreme Court. This is especially interesting given that Judge Kavanaugh’s jurisprudence on abortion is very scarce and no one is able to predict how he might vote on this issue. If the newest Justice decides to side with the reliable conservatives on the Court, the fate of the right to abortion in the United States will depend solely on Chief Justice Roberts and he remains a huge unknown as well.

It seems that in its 2019 term, the US Supreme Court might be asked to decide at least 6 issues of historical importance and its decisions will be felt across the whole country in decades to come.