Tag: clause

US Supreme Court Lifts Injunction Blocking Border Wall Funding

On 26 July 2019, in Trump v. Sierra Club, 588 U. S. (2019), the US Supreme Court stayed an injunction blocking President Trump’s allocation of funds for a border wall with Mexico. The decision was supported by Justices Alito, Gorsuch, Thomas and Kavanaugh and Chief Justice Roberts, with Justice Breyer concurring in part and dissenting in part. Justices Kagan, Sotomayor and Ginsburg dissented.

The Supreme Court ruled that the Trump Administration had “made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.” The injunction was lifted on the grounds that the Trump Administration would suffer ‘irreparable harm’ if the injunction had been left in force. This was based on the fact that if the funds had not been released, the Trump Administration would not have been able to finalise contracts with building companies by 30 September 2019, meaning that the funds would have had to be “returned to the Treasury and the injunction [would] have operated, in effect, as a final judgment.” The injunction is stayed pending the appeal before the Court of Appeals for the Ninth Circuit and a potential appeal from that Court to the US Supreme Court, if pursued.

In his partly-concurring and partly dissenting opinion, Justice Breyer, the least liberal of the four liberals on the US Supreme Court, argued that the injunction should have been stayed in so far as to allow the Trump Administration to finalise the contracts but not to begin construction. According to Justice Breyer, this would have allowed the Trump Administration to use the funds before they expire on 30 September 2019, yet at the same time, it would have prevented the wall from being erected before the case was properly decided on the merits.

The original injunction was prompted by Proclamation 9844 declaring a state of emergency at the Southern border issued by President Trump under the National Emergencies Act 1976 on 15 February 2019. The National Emergencies Act 1976 contains a list of special 136 emergency powers which can be relied on once an emergency has been declared. Under Proclamation 9844, the Trump Administration relied on section 8005 of the Department of Defense Appropriations Act of 2019 allowing the Secretary of Defense to transfer funds for military purposes if the Secretary determines that the transfer is “for higher priority items, based on unforeseen military requirements” and “the item for which funds are requested has [not] been denied by the Congress.” Under Proclamation 9844, the Trump Administration moved $8 billion from the Department of Defense to the Department of Homeland Security to finance the construction of the wall at the US-Mexico border after Congress had refused to allocate more than $1.375 billion for that purpose (NY Times).

As soon as Proclamation 9844 was issued, the Sierra Club and Southern Border Communities Coalition, two advocacy groups represented by the ACLU, sued claiming that Proclamation 9844 violated the Appropriation Clause of Article I, Section 9 of the Constitution which identifies Congress as the only body responsible for the allocation of funding. In May 2019, in Sierra Club v Trump, 19-cv-00892-HSGthe District Court for the Northern District of California imposed a preliminary injunction declaring that the redirection of the funds towards the construction of the wall violated the Appropriation Clause. Then, in June 2018, in a second decision, the same Court made the injunction permanent. The Trump Administration appealed against the injunction, but in a 2-1 decision, the Court of Appeals for the Ninth Circuit declined to lift the injunction pending a full appeal. Now, that the US Supreme Court has stayed the injunction, the construction of the wall will proceed while the case is being considered by the Court of Appeals for the Ninth Circuit on the merits.

However, the case of Sierra Club v Trump is not the only Court case against Proclamation 9844. On the announcement of Proclamation 9844, the House of Representatives, being co-responsible for the allocation of funding under the Appropriate Clause, sued in the District Court for the District of Columbia seeking to block the redirection of funds for the wall. On 3 June 2019, the Court ruled, in US House of Representatives v Mnuchin, 1:19-cv-00969, that the House of Representatives had no legal standing to sue the President and, therefore, it lacked jurisdiction to hear the case. No decision on the merits was issued (The Washington Post).

Interestingly, the decision in US House of Representatives v Mnuchin, 1:19-cv-00969 can be contrasted with a recent case of US House of Representatives v. Burwell, 130 F. Supp. 3d 53, 81, where, in September 2015, the same District Court for the District of Columbia (although a difference Judge) held that the House of Representative (with a Republican majority) had a legal standing to sue the Obama Administration for unauthorised payments under a cost-sharing program under the ObamaCare. In fact, in its subsequent decision on the merits in May 2016, in US House of Representatives v. Burwell, 185 F. Supp. 3d 165, the Court ruled that those payments had in fact violated the Appropriate Clause. However, the ruling was stayed while the Obama Administration pursued an appeal before the Court of Appeals for the District of Columbia Circuit. In December 2017, with the 2016 presidential election intervening, the lawsuit was settled with the new Administration. Nevertheless, when it comes to the question of the House of Representatives’ legal standing to sue for unauthorised spending, the case produced a definite positive answer at the District Court level (HealthAffairs).

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.

Surveillance Court Rulings Subject to Judicial Review (UK Supreme Court)

On 15 May 2019, the UK Supreme Court ruled 4-3, in R (on the application of Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22, that rulings of the Investigatory Powers Tribunal are subject to the supervisory jurisdiction of the High Court on the point of law. In its ruling, the Supreme Court discusses a common law presumption against clauses restricting access to judicial review and, more crucially, the limits of the doctrine of parliamentary sovereignty.

The Investigatory Powers Tribunal is a specialist tribunal created by the Regulation of Investigatory Powers Act 2000 (RIPA 2000) and tasked with supervising intelligence surveillance and other conduct of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters (GCHQ). Under RIPA 2000, s 67(8), rulings of the Investigatory Powers Tribunal seem to be final:

“Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.”

However, Lord Carnwath, in his Majority Opinion, held that judgments containing errors of law were not ‘determinations’ within the meaning of RIPA 2000, s 67(8) and the supervisory jurisdiction was therefore not ousted. This interpretation flows from the old decisions of the House of Lords in Anisminic v Foreign Compensation Commission [1969] 2 AC 14 and O’Reilly v Mackman [1983] UKHL 1 which established that:

“…If a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question, ie, one into which it was not empowered to inquire and so had no jurisdiction to determine. Its purported ‘determination’, not being a ‘determination’ within the meaning of the empowering legislation, was accordingly a nullity…” [para 54]

Therefore, Lord Carnwath held that ‘…a determination arrived at on an erroneous view of the relevant law was not a “determination” within the meaning of an ouster clause...’ [para 54]. This approach is consistent with a general common law presumption against ousting the jurisdiction of the High Court [para 107].

However, in his Majority Opinion, Lord Carnwath moves beyond the common law presumption against clauses restricting access to judicial review and the concept of ‘nullity’ determinations and suggests that the question of the supervisory jurisdiction of the High Court should come down to the concept of the rule of law:

“This proposition should be seen as based, not on such elusive concepts as jurisdiction (wide or narrow), ultra vires, or nullity, but rather as a natural application of the constitutional principle of the rule of law (as affirmed by section 1 of the [Constitutional Reform Act] 2005), and as an essential counterpart to the power of Parliament to make law. The constitutional roles both of Parliament, as the maker of the law, and of the High Court, and ultimately of the appellate courts, as the guardians and interpreters of that law, are thus respected…” [para 132]


“…Arguably, following the logic of the reasoning in R (Cart) [v Upper Tribunal [2011] UKSC 28], it may be thought implicit in the constitutional framework for the rule of law, as established by the Senior Courts Act 1981 and the Constitutional Reform Act 2005, that legal issues of general importance should be reviewable by the appellate courts; and that an ouster clause which purports to exclude that possibility cannot, consistently with the rule of law, be upheld…” [para 142]

Consequently, Lord Carnwath concluded that:

“…[A]lthough it is not necessary to decide the point, I see a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law. In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law.” [para 144]

The Majority Opinion in R (on the application of Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22 constitutes a vital part of UK constitutional jurisprudence on the doctrine of parliamentary sovereignty as it seems to suggest that there are some ultimate limits as to what Parliament can and cannot do. The Supreme Court appears to suggest that the concept of the rule of law might pose limits to the Parliament’s power to regulate access to judicial review. It is not clear what those limits are but the Court points to the fact that unlike the Court of Appeal and the Supreme Court, which are the creation of statutes, the High Court enjoys the original common law jurisdiction [para 141] and, although there is no constitutional right of appeal form the High Court, its supervisory jurisdiction is somehow special because ‘[a]t least since the time of Blackstone, this has been a central part of the function of the High Court as constitutional guardian of the rule of law’ [para 139]. The Supreme Court therefore recognises the long history of the supervisory jurisdiction of the High Court which was established at the end of the 13th century as the King’s Bench and its ‘supervisory role was preserved by section 16 of the Judicature Act 1873 which vested the common law powers of the Queen’s Bench in the newly created High Court. Those powers were in turn preserved by section 19 of the Senior Courts Act 1981‘ [para 33].

Although the Supreme Court points to the Judicature Act 1873the Senior Courts Act 1981 and the Constitutional Reform Act 2005 as a potential source of the rule of law, those statutes only recognised the powers of the High Court and the concept of the rule of law, rather than created them. The Judicature Act 1873 combined the Court of Chancery, the Court of Queen’s / King’s Bench, the Court of Common Pleas, the Court of Exchequer, the High Court of Admiralty, the Court of Probate and the Court of Divorce and Matrimonial Causes into the Supreme Court of Judicature, composed of the High Court with original jurisdiction and the Court of Appeal with appellate jurisdiction. The Senior Courts Act 1981, s 19 provided that ‘(2) [s]ubject to the provisions of this Act, there shall be exercisable by the High Court – (b) all such other jurisdiction (whether civil or criminal) as was exercisable by it immediately before the commencement of this Act…’  while the Constitutional Reform Act 2005, s 1 provided that ‘[t]his Act does not adversely affect – (a) the existing constitutional principle of the rule of law…” None of these Acts created supervisory jurisdiction of the High Court, nor did they established the rule of law as one of the principles of UK constitutional law but rather recognised what had already existed.

Finally, the Supreme Court confirmes that as ‘constitutional statutes’, the Judicature Act 1873the Senior Courts Act 1981 and the Constitutional Reform Act 2005 are immune to implied repeal by Parliament [para 120]. Consequently, Parliament cannot implicitly modify rules governing the supervisory jurisdiction of the High Court. The question remains, what would happen if Parliament was to expressly abolish that jurisdiction or the concept of the rule of law in its entirety. It is not clear from the judgment whether Parliament can abolish something that it has not created but only recognised as already in existence.

Trump Administration Litigation Tracker (Ongoing/Prospective/Resolved)



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.



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.



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)).

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.