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Supreme Court Previews
The previews are contributed by the Legal Information Institute, a nonprofit activity of Cornell Law School. The previews include an in-depth look at several cases plus executive summaries of other cases before the Supreme Court. The executive summaries include a link to the full text of the preview.
Arizona v. San Francisco (No. 20-1775)
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Oral argument: Feb. 23, 2022
Question as Framed for the Court by the Parties
Whether states with interests should be permitted to intervene to defend a rule when the United States ceases to defend.
Facts
Under federal immigration law, 8 U.S.C. § 1182(a)(4)(A), the government may deny noncitizens admission or adjustment to immigration status if they are “likely at any time to become public charge[s].” Government interpretations of the “public charge rule” have changed over time. Between 1999 and 2019, the Department of Homeland Security (DHS) defined “public charge” in accordance with field guidance issued by the Clinton administration. The guidance defined “public charges” as individuals likely to receive “[c]ash assistance for income maintenance [or] institutionalization for long-term care at government expense.” The federal government followed this nonbinding field guidance until August 2019, when the Trump Administration issued a final rule defining “public charge” after notice-and-comment rulemaking. The rule defined a “public charge” as someone who is “more likely than not at any time in the future to receive one or more designated public benefits for more than 12 months in the aggregate within any 36-month period.”
The 2019 rule faced state challenges. Several states sought preliminary injunctions, alleging that they were injured when noncitizens, confused by the rule’s language, unnecessarily disenrolled from state public benefits. District courts in the Second, Fourth, Seventh, and Ninth Circuits issued preliminary injunctions. The Ninth Circuit stayed the injunctions that were issued in its circuit, allowing the 2019 rule to go into effect. While the Second and Seventh Circuits initially denied stays, the Supreme Court stayed the preliminary injunctions issued within their circuits.
Although the Supreme Court granted stays in the Second and Seventh Circuits, the Second, Seventh, and Ninth Circuits continued litigation on the public charge rule and affirmed the issuance of their preliminary injunctions. In response, the federal government filed petitions for certiorari for the Second, Seventh, and Ninth Circuit decisions. The petitions were pending before the Supreme Court when the Biden administration, which opposed the Trump administration’s 2019 rule, took office.
In March 2021, DHS announced that it would no longer appeal court rulings enjoining the 2019 rule’s enforcement. The Seventh Circuit granted the federal government’s motion to dismiss Cook County v. Wolf, a public charge rule case on appeal from the Northern District of Illinois. DHS subsequently announced that the Northern District of Illinois ruling, which had vacated the 2019 public charge rule, would be in effect nationwide and that the 1999 field guidance would control. The federal government filed joint stipulations to dismiss the public charge rule cases pending before the Supreme Court, and the cases were dismissed. The filing occurred hours after DHS announced that it would no longer defend the rule.
In response to dismissals in the Seventh and Fourth Circuits, fourteen states collectively filed motions to intervene, arguing that because the United States announced its intention to stop defending the rule and the cases were dismissed so quickly after the announcement, the states were unable to intervene. The Fourth and Seventh Circuits dismissed the states’ motions, and DHS issued a final rule removing the 2019 rule. The states’ effort to intervene in the Ninth Circuit public charge litigation was likewise denied.
On June 18, 2021, the states of Arizona and twelve other states filed a petition for writ of certiorari in the Supreme Court.
Legal Analysis
INTERVENTION OF RIGHT
Arizona argues that the States fulfilled all requirements necessary for intervention of right under Rule 24 of the Federal Rules of Civil Procedure. Under Rule 24, Arizona explains, there are four requirements courts use to analyze a movant’s intervention of right. First, Arizona notes, courts determine if there has been a timely submission for the intervention application. Second, Arizona argues, courts analyze if the moving party has a significant interest regarding the transaction that is the subject of the legal action. Third, Arizona contends courts assess whether the action may impair the applicant’s ability to protect its interest. Fourth, Arizona notes, the court must determine if the “existing parties” in the suit adequately represent the applicant’s interest.”
In arguing that the States have fulfilled the requirements needed for intervention of right, Arizona analyzes each of the four requirements. First, Arizona argues that the States’ intervention motion was timely. Arizona explains that without warning, on March 9, 2021, the United States declared that it would no longer defend the Public Charge Rule and the States’ interests in this case. Arizona contends that the States moved to intervene on March 10, 2021, in the Ninth Circuit, even though the Ninth Circuit had not issued its mandate yet. Arizona explains, the States did not delay in reacting to the United States’ decision. Moreover, Arizona notes that the idea that the States needed to intervene prior to when the United States stopped defending
this rule goes against the Supreme Court’s decision regarding the timeliness benchmark in United Airlines, Inc. v. McDonald. Specifically, Arizona explains, United Airlines v. McDonald held timeliness is based on how quickly intervenors act once it becomes evident that existing parties no longer protect the intervenors’ interests and the time between seeking intervention versus the period in which intervenors could have appealed. Second, Arizona argues that the States have a “significant protectable interest that could be impaired.” Arizona explains that the continuation of the Public Charge Rule will save money for the States. Additionally, Arizona argues that DHS stated that the Rule would cause a decrease of 2.5 percent in public benefit programs’ enrollment levels. Moreover, according to Arizona, the federal government only covers a portion of public benefit programs’ costs. Third, Arizona argues that the invalidation of the Public Charge Rule could impair their ability to protect its interest. Specifically, Arizona asserts, economic harm will fall on the States if the Public Charge Rule is invalidated because the States will not receive the benefits they could have obtained under the Public Charge Rule. Thus, Arizona argues, the States have a valid interest in preventing economic damage that would support their intervention and the invalidation of the Public Charge Rule could impair their ability to protect its interest. Fourth, Arizona argues that the current parties to the case no longer adequately represent the States’ interests. Arizona asserts that the United States abandoned litigation and every case regarding the Public Charge Rule was dismissed, therefore no remaining party defended the States’ interest in the Public Charge Rule. Thus, Arizona argues, since Arizona satisfied all four requirements for intervention of right in this case, the Ninth Circuit should have granted the States’ motion to intervene.
San Francisco argues that the circumstances in this case do not warrant intervention as of right. San Francisco argues that the Supreme Court does not need to analyze whether the States’ motion to intervene was timely or if the States have a sufficient interest to warrant intervention because the States cannot demonstrate that their alleged interests would be impeded or impaired by this case. San Francisco notes that Arizona only points out that the States would be deprived of benefits they would have received under the Public Charge Rule as their impairment. San Francisco argues, however, that this case does not impact Arizona’s ability to gain those benefits through alternative methods.
Specifically, San Francisco asserts that the preliminary injunctions in this case do not harm Arizona’s economic interests because they are not applicable in the State. Since the injunctions do not apply to the Petitioners’ States, the States are third parties to the suit and therefore do not have a valid interest in the outcome set forth by the Ninth Circuit. San Francisco argues that, even if the preliminary injunction applied to the States, Arizona’s interest would not be impaired because the preliminary injunction has been superseded by the final judgment issued by a district court in the Northern District of Illinois, which abandons the Public Charge Rule and the federal government’s actions. San Francisco argues that once the Seventh Circuit dismissed the appeal of the judgment from the Northern District of Illinois and issued the mandate to vacate the Public Charge Rule, the judgment from the Northern District of Illinois went into effect. San Francisco argues that, as a result of the vacatur ruling from Illinois district court, the federal government issued a rule that removed the Public Charge Rule from the Code of Federal Regulations and restored the previous text from August 2019. Thus, San Francisco argues, the Ninth Circuit’s preliminary injunctions are not relevant to the States and do not harm their economic interests. Moreover, San Francisco asserts, Arizona failed to cite any cases in which a court contemplated an appeal from a preliminary injunction after a different court ordered final relief, thus rendering the preliminary injunctions useless.
PERMISSIVE INTERVENTION
Arizona maintains that the Ninth Circuit should have granted permissive intervention. Arizona argues that under Rule 24(b) (1)(B), federal courts can allow litigants to intervene, if they file a “timely motion” and have “a claim or defense that shares with the main action a common question of law or fact.” Arizona asserts that the standard for permissive intervention was satisfied because the States’ motion was timely and shared a common question of law with the main action. Arizona explains that the States’ motion shared a common question of law with the main action because the States wanted to argue that the Public Charge Rule was procedurally and substantially valid. Separately, Arizona argues that the Ninth Circuit should have granted permissive intervention since Respondents acted in an unprecedented manner by quickly issuing a multi-court, nationwide surrender. Arizona notes that this is the first Administration to act in such a manner. Moreover, Arizona argues that refusing the grant the States’ permissive intervention was an abuse of the Ninth Circuit’s discretion that permitted the Government to bypass the Administrative Procedure Act’s (APA) rulemaking process. Arizona emphasizes that one of the main goals of intervention is to allow unnamed parties, that would be negatively impacted by the suit, to join the litigation and try to stop the “deprivation of their rights,” as the APA notice-and-comment rights, which solicit public opinion, can be burdensome to the Government.
San Francisco counters that denying permissive intervention was not an abuse of the Ninth Circuit’s discretion. San Francisco asserts that while courts may grant permissive intervention, they are not required to do so under any circumstances. San Francisco explains that intervention is not available to every movant who wishes to argue in favor of an action. San Francisco asserts that if every party who moved to intervene was permitted to do so, then there would not be a difference between filing to intervene as a party and filing an amicus brief. Furthermore, given the discretionary nature of permissive intervention, San Francisco argues that courts can refuse to allow intervention “even when the requirements of [Rule] 24(b) are satisfied.” Moreover, San Francisco counters that DHS is not avoiding the notice-and-comment requirements because DHS invited the public to submit written or oral comments regarding the Public Charge Rule from August 2021 to October 2021. Additionally, San Francisco asserts, DHS is following court orders that prohibit DHS from exercising the Public Charge Rule during the notice-and-comment process. Therefore, San Francisco argues, the Ninth Circuit did not abuse its discretion.
Discussion
POTENTIAL DISRUPTION TO GOVERNMENT RULEMAKING
The state of Ohio warns that prohibiting the states from intervening would prove disruptive to administrative procedure as it would allow the federal government to bypass
normal rulemaking procedures. Ohio argues that disallowing state intervention would contribute to a “troubling” trend where the federal government engages in policymaking through collusive settlements. Ohio asserts that the federal government circumvented the notice-and-comment rulemaking process ordinarily required to repeal or alter administrative rules when its actions made one district court’s ruling effective nationwide. Ohio criticizes the federal government’s actions as “gamesmanship” for which it has faced no consequences. Ohio maintains that allowing state intervention will disincentivize the federal government from collusively settling challenges to federal law.
The federal government argues that barring state intervention would not represent a detrimental departure from established practice. The federal government maintains that it was not unprecedented for the government to stop appealing adverse rulings against the 2019 rule. The federal government contends that the decision not to pursue further review depends on, and has historically depended on, various legal and prudential considerations. The federal government notes that Congress has, as a matter of policy, granted the Solicitor General the authority to determine how and whether to pursue appellate review. Thus, the federal government argues, it is permissible for successive administrations of the Executive Branch to take different positions on government litigation.
IMPACT ON GOVERNMENTAL RESOURCES
America First Legal Foundation (AFL) contends that prohibiting the states from intervening could prove costly to the government and the public in the long term. AFL claims that the federal government’s nationwide vacatur of the 2019 rule would make it more difficult to return to the 2019 rule. Should the federal government’s new rule prove unlawful, until a new rule is promulgated through notice-and-comment, an unlawful rule would govern in the intervening years. As the state of Arizona argues, states would also have to make unexpected adjustments to their budgets to respond to the federal government’s rejection of the 2019 rule. Arizona claims that the 2019 rule would save states $1.01 billion annually by causing an approximately 2.5 percent decrease in enrollment in public benefits programs. Arizona maintains that the government could distribute the money saved to economically disadvantaged people.
The federal government counters that it would be a waste of judicial and executive resources for states to take up an appeal when it declines to do so. The federal government argues that state intervention would likely call for the federal government’s involvement, diverting government resources from rulemaking. The federal government also asserts that it would be undesirable for DHS to take litigation positions on the public charge issue before completing notice-and-comment rulemaking. The federal government emphasizes that litigation would require potential intrusive, resource-intensive discovery into communications between senior Executive Branch officials at the time of the 2019 public charge rule’s adoption. The federal government also points to the high cost of continuing to enforce the 2019 rule, which it claims has had a “negligible” effect on noncitizen status adjustment decisions while generating widespread confusion and discouraging eligible noncitizens from applying for government benefits.
Full text available at https://www.law. cornell.edu/supct/cert/20-1775.
Written by Victoria Quilty and Alison Draikiwicz. Edited by Noah Welch.
West Virginia v. Environmental Protection Agency (No. 20-1530)
Oral argument: Feb. 28, 2022
Question as Framed for the Court by the Parties
Whether, in 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, Congress constitutionally authorized the Environmental Protection Agency to issue significant rules — including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy — without any limits on what the agency can require so long as it considers cost, nonair impacts and energy requirements.
Facts
In 1963 Congress passed the Clean Air Act, which aimed to “protect and enhance” the quality of our air. In 1970, Congress amended the Clean Air Act and granted the Environmental Protection Agency (EPA) additional powers to regulate any “new and existing” sources of air pollution originating from stationary sources. Congress gave the EPA ninety days following the 1970 law’s enactment to list prominent stationary source categories, such as power plants. The EPA was also required to issue new “standards of performance” for every newly constructed stationary source within each category going forward, and new guidelines for how to reach those standards. All regulations of power plants must undergo this process, and the federal government partners with state governments to ensure its standards are met through a variety of coordinated enforcement measures.
In 2015, the EPA reaffirmed an earlier finding that greenhouse gas emissions endanger public health and began preparing a factual basis for a new regulatory rule. In 2019, the EPA adopted the Affordable Clean Energy (ACE) rule to regulate the greenhouse gas emissions of power plants. The ACE rule repealed and replaced a preexisting set of regulations, called the Clean Power Plan. The Clean Power Plan had to be repealed because, in the EPA’s view, it violated Section 7411(d) of the Clean Air Act by accomplishing some of its stationary source emission reduction measures offsite. The EPA claimed that the ACE Rule rectified this issue by implementing a new system of emissions reduction–solely for coal-fired power plants–that involved on-site heat-rate improvement technologies. The ACE rule’s guidelines for emissions reduction ranges were non-mandatory; and, the EPA predicted that the ACE rule would reduce carbon dioxide emissions by less than 1% by 2035. The EPA relied on these estimations to argue the efficiency of the ACE rule, but environmental advocacy groups would later use the same estimates to argue the ACE rule did not go far enough. The ACE Rule’s regulations also extended the States’ deadlines for enforcing regulatory compliance plans and altered some of the evaluation mechanisms for keeping an eye on the States’ compliance with the emissions reductions.
Several groups—including state and local governments and environmental advocacy groups—objected to the issuance of the ACE Rule and its repeal of the Clean Power Plan. Defending its rule, the EPA argued that getting rid of the Clean Power Plant, in favor of the ACE Rule, was statutorily required by the “clear and unambiguous” language of Section 7411 of the Clean Air Act. However, the United States Court of Appeals for the
District of Columbia Circuit (D.C. Circuit) disagreed with the EPA, giving its interpretation of Section 7411 no deference and holding that the EPA’s interpretation was not required by Congress. As a result, the D.C. Circuit concluded that the EPA had not relied on its own judgment and expertise in implementing the ACE rule, and accordingly invalidated the rule and remanded to the EPA.
West Virginia, along with several other states (after the consolidation of several cases), petitioned the Supreme Court to review the D.C. Circuit’s decision.
Legal Analysis
MAJOR QUESTIONS DOCTRINE
West Virginia argues that Congress did not clearly authorize the EPA to take any measure it deems helpful to reduce carbon emissions solely by administrative rule-making. According to West Virginia, under the major-questions doctrine, if the power at issue has vast economic and political impact, Congress needs to delegate it to an administrative agency with clear and unambiguous language. West Virginia argues that Section 7411 does not provide the requisite clear congressional authorization. According to West Virginia, the only evidence that the federal statute clearly authorizes such power stems from the phrase “best system of emission reduction” in Section 7411(a)(1). West Virginia contends that the phrase, by itself, is unable to support the lower courts’ overbroad interpretation of Section 7411. West Virginia refutes the lower courts’ reasoning that Congress delegates such power as long as the statute does not clearly deny it to the EPA; instead, West Virginia insists that such power must be affirmatively granted, and that only the former ACE rule is within the scope of the statute.
West Virginia further argues that the power at issue is undoubtedly significant: according to the D.C. Circuit’s interpretation, it says, Congress authorizes the EPA to determine which method comprises the “best system” for a regulated source. West Virginia contends that, per the D.C. Circuit’s view, the EPA could take almost any measure to compel stationary sources to meet a given standard of performance, such as shutting down carbon-emitting facilities and banning the importation of carbon-intensive goods. West Virginia also points to the actual financial difficulties facing states and individuals should the D.C. Circuit’s decision stand. According to West Virginia, re-implementing the CPP alone would cause the cost of wholesale electricity to rise by $214 billion, and it would cost an additional $64 billion to replace the power capacity reduced under the CPP. West Virginia further argues that the scope of the D.C. Circuit decision’s implicit grant of authority is also unprecedented, tacitly permitting the EPA to regulate any building that uses or produces carbon-generating power. According to West Virginia, the lower court’s overbroad interpretation of Section 7411 allows the agency to impose measures that impact millions of Americans, constituting a “major question” of utmost importance.
The EPA refutes West Virginia’s argument that the major-questions doctrine requires a narrow reading of Section 7411(d)(1)(A). According to the EPA, the principal language of Section 7411 is directed not at the EPA, but rather at the states (when they devise and implement their own regulatory police powers in coordination with the EPA rule). The EPA argues that the Court has never restrained the police power of the states while interpreting a federal regulation. The EPA contends that the issue of whether the regulation involves a major question must be decided on a case-by-case basis; even if some exercises of an agency’s power might implicate the major-questions doctrine, the EPA contends, it does not follow that all exercises of that power are categorically forbidden.
Consolidated Edison and other power companies (Power Companies) are also Respondents in this case alongside the EPA and argue that the major-questions doctrine is not applicable here because what West Virginia asks for is essentially an advisory opinion. According to Power Companies, the lower courts’ decision that the statute does not limit the agency’s authority does not by itself constitute agency action. Power Companies also point out that the application of the major-questions doctrine will depart from the Supreme Court’s precedents; so far, the Court has only reviewed actual agency regulation. According to Power Companies, if the Court applies the doctrine as West Virginia asks, it will contradict the Court’s long-established principle to avoid judicial overreaching and will create administrability problems.
TEXTUAL INTERPRETATION
West Virginia asserts that Section 7411, when correctly interpreted, does not empower the EPA to regulate across industries or manage the country’s electricity supply, but only gives the EPA power inside the fenceline. West Virginia argues that the lower court improperly interpreted the terms in an unlimited, context-free way. According to West Virginia, the terms that Congress uses are source-specific: for example, for a standard of performance to reflect “achievable” degrees of emission reduction through an “adequately demonstrated” system, the EPA cannot pick any target it wants, but must base its evaluation on techniques that have been tested in the real world. If the EPA can pick any target and average emissions across different sources, West Virginia argues that any system can be “adequately demonstrated” and any target achievable.
West Virginia also distinguishes the singular and plural forms of the word “source” in Section 7411(b)(1) and (d)(1). According to West Virginia, since standards of performance must be established “for any existing source,” they are case-specific, which makes it hard to interpret the term “best system” without taking a particular source into account. Since outside-the-fenceline measures do not connect to a specific source, West Virginia argues that they are excluded. West Virginia also emphasizes that any standard of performance must apply to the “stationary source,” which is the building itself, rather than to its “owner or operator,” which is separately defined, and therefore no outside-the-fenceline measure is allowed.
West Virginia further points out that Congress must use explicit language if it intends to delegate to a federal agency power that is traditionally reserved to the states. According to West Virginia, regulating utilities is long associated with the police power of the states. West Virginia further argues that Congress also takes federalism into account when it allows the states to enact and administer their own regulatory programs. West Virginia also contends that the plan that the EPA intends to implement would upset the balance between the state and federal government by allowing the EPA to step into realms traditionally reserved to the states.
The EPA refutes West Virginia’s argument that it cannot use outside-the-fenceline measures based on the text. According to the EPA, West Virginia misreads the word “achievable” in the statute: the word “achievable” qualifies the “degree of emission limitation,” and the “degree of emission limitation achievable” is evaluated based on
“application of the best system of emission reduction.” The EPA argues that, for each source category subject to regulation under Section 7411(d), the EPA first determines the “systems of emission reduction” that are “adequately demonstrated,” then evaluates the “best” of those systems, and finally derives from the best system an “achievable” “degree of emission limitation.”
According to the EPA, nothing in the requirement that states must “establish standards of performance for any existing source” distinguishes inside-the-fenceline measures such as heat-rate improvements and carbon capture and sequestration from outside-the-fenceline measures like biomass co-firing and trading. The EPA argues that even if, as West Virginia contends, the standard of performance must apply to the building itself, it does not bar outside-the-fenceline measures, because nothing in the text indicates that all emission reduction must occur at the source.
The EPA argues that West Virginia’s interpretation of the statute undermines rather than supports federalism concerns. According to the EPA, the statute’s language used by West Virginia in support of their argument is directed at the states, not the EPA, and any limitation it reads into the text would also be imposed on the states. The EPA thus concludes that nothing in Section 7411(d) bars states from using outside-the-fenceline measures, and a narrow reading of the text would unreasonably constrain state power.
Discussion
SCOPE OF THE EPA
West Virginia argues that one of the biggest problems with the D.C. Circuit’s decision is that it widened the scope of the power of the EPA. According to West Virginia, the lower court’s decision gave the EPA a “judicial edict” to not satisfy itself with a narrower interpretation of emission reduction practices limited to individual plants. West Virginia argues that, unless the decision is reversed, the EPA has been given “universal power” to affect American life, and that such authority is far too expansive. West Virginia further claims that the EPA has been given power to influence hundreds of billions of dollars over several industries. The North American Coal Corporation (NACC), in support of West Virginia, argues that the D.C. Circuit’s interpretation of the case grants the EPA power to restructure all carbon-emitting industries with a huge level of control over economic activity across the country. The NACC goes further, contending that the EPA has been given “carte-blanche” to decide the entire climate change policy of the country. Westmoreland Mining Holdings further makes the point that giving the EPA expansive authority to decide climate change policy runs roughshod over the rightful power of Congress to set policy.
Several Respondents, including the State of New York, counter that such arguments are slippery-slopes and not justifiable. Similarly, Federal Respondents argue that what Petitioners really fear is any future rule-making the EPA might engage in that would impact their specific economic interests. However, they argue, such fear is not only unjustifiable but also unrealistic. The D.C. Circuit did not, they contend, embolden the next “Green New Deal,” but simply upheld the consistent themes and mandates of the EPA itself.
Climate Scientists, in support of the EPA, also push back on Petitioners’ complaints that the EPA’s scope has been impermissibly expanded. The Climate Scientists argue that the EPA should be given extensive power to combat climate change. The Climate Scientists contend that the Supreme Court should “exercise caution” in limiting the EPA’s powers to combat climate change and its effects in any way. Thomas Jorling, one of the chief architects of the Clean Air Act and in support of the EPA, rebuts Petitioners’ argument that the D.C. Circuit expanded the EPA’s powers at the expense of Congress’s powers. Jorling argues that the D.C. Circuit’s decision is consistent with the Clean Air Act’s powers, which were explicitly established by Congress itself.
Full text available at https://www.law. cornell.edu/supct/cert/20-1530.
Written by Tori Staley and Jenny Guo. Edited by Ryan Schelwat.
Denezpi v. United States (No. 20–7622)
Oral argument: Feb. 22, 2022
Court below: U.S. Court of Appeals for the Tenth Circuit
This case asks the Supreme Court to decide whether prosecution of the same conduct, first in a Court of Indian Offenses (CFR court), a federally-constituted Article I trial court with jurisdiction over cases arising on Indian reservations, and then in a federal court, is permissible under the dual sovereignty exception to the Double Jeopardy Clause of the Fifth Amendment. Petitioner Merle Denezpi argues that his prosecution in a federal district court following his conviction in the Ute Mountain Ute CFR court violates the Double Jeopardy Clause of the Fifth Amendment, which prohibits successive prosecutions of the same offense, because the CFR court derives some of its judicial power from the federal sovereignty of the United States government. Respondent the United States counters that Denezpi’s crime falls within the dual sovereignty exception to the Double Jeopardy Clause because the Ute Mountain Ute CFR court is an extension of tribal, not federal, sovereignty and, as Denezpi’s conduct violated both tribal and federal law, he can be prosecuted successively under each law by the two separate sovereigns. The outcome of this case has implications for tribal sovereignty and public safety in tribal communities.
Full text available at https://www.law. cornell.edu/supct/cert/20-7622.
Ysleta del Sur Pueblo v. Texas (No. 20-493)
Oral argument: Feb. 22, 2022
Court below: U.S. Court of Appeals for the Fifth Circuit
This case asks the Supreme Court to decide whether Texas can regulate bingo and other gaming activities on tribal lands. Petitioner Ysleta del Sur Pueblo argues that the Court’s precedent of Cabazon Band should control for purposes of statutory interpretation. Under Cabazon Band, tribes cannot operate games that state law prohibits; however, tribes do not have to follow state regulations governing games that are not otherwise prohibited. Respondent Texas maintains that the Restoration Act controls this issue, and that the Act does not incorporate the Cabazon Band interpretation. Therefore, Texas asserts that all gaming activities on tribal lands are subject to Texas regulations. The outcome of this case is limited to two tribes in Texas but could have implications on their tribal sovereignty.
Full text available at https://www.law. cornell.edu/supct/cert/20-493.
Ruan v. United States (No. 20-1410)
Oral argument: Mar. 1, 2022
Court below: U.S. Court of Appeals for the Eleventh Circuit
This case asks the Supreme Court to consider the requirements for criminal conviction
under the Controlled Substances Act (CSA), 21 U.S.C. Section 841(a)(1). Two physicians, Petitioners Xiulu Ruan and Shakeel Kahn, were convicted of violating the CSA by prescribing medication without legitimate medical purposes. Both physicians brought good-faith defenses, arguing that they did not intentionally or knowingly violate the CSA. The physicians claim that a subjective lack of knowledge or intent is sufficient to maintain innocence under the CSA. At trial, juries were instructed to find the physicians innocent only if the physicians reasonably believed they were in compliance with the law. Respondent United States claims this objective standard is the correct reading of the statute, and Ruan and Kahn claim the objective standard creates an impermissibly low standard for conviction. This case has important implications for the future of medical practice, medical research, and mens rea requirements in criminal law.
Full text available at https://www.law. cornell.edu/supct/cert/20-1410.
Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita, Inc. (No. 20–1641)
Oral argument: Mar. 1, 2022
Court below: U.S. Court of Appeals for the Sixth Circuit
This case asks the Supreme Court to decide what type of dialysis-reimbursement schemes are acceptable for group health plans considering that end-stage renal disease (ESRD) patients are eligible for Medicare. The Medicare Secondary Payer Act (MSPA) prohibits health plans from “tak[ing] into account” Medicare eligibility of ESRD patients and “differentiat[ing]” in benefits provided to Medicare-eligible ESRD patients. Marietta contends that its plan did not violate the “take into account” or “differentiation” provisions of the MSPA because the dialysis reimbursement applies equally to dialysis patients with and without ESRD and because the purpose of the MSPA is coordination-of-benefits for ESRD patients rather than anti-discrimination. DaVita counters that the design of Marietta’s plan is intended to induce ESRD-patient members to drop the Plan in favor of Medicare, and that the plan design differentiates based on the disparate impact that ESRD patients face when seeking dialysis reimbursement. The outcome of this case has heavy implications for ESRD access to care, dialysis-treatment reimbursement, and health insurance plan structuring.
Full text available at https://www.law. cornell.edu/supct/cert/20-1641.
Egbert v. Boule (No. 21-147)
Oral argument: Mar. 2, 2022
Court below: U.S. Court of Appeals for the Ninth Circuit
This case asks the Supreme Court to consider extending the implied right of action from Bivens v. Six Unknown Federal Narcotics Agents to a situation involving a federal officer carrying out immigration enforcement functions. In Bivens, the Court recognized a limited federal cause of action for damages when federal officers, acting under color of federal authority, violate an individual’s constitutional rights. Currently, the Court recognizes Bivens actions for Fourth Amendment violations committed by law enforcement officers, as well as violations of rights secured by the Fifth and Eighth Amendments. Erik Egbert argues that extending Bivens to encompass First Amendment retaliation claims and Fourth Amendment claims involving immigration enforcement officials is unwarranted. Robert Boule counters that extending Bivens to his two claims ensures that individuals are provided with a constitutional remedy when federal officers violate fundamental rights. This case has significant implications for civil rights, separation of powers, and questions related to judicial overreach in matters involving alleged constitutional violations.
Full text available at https://www.law. cornell.edu/supct/cert/21-147.
Berger v. North Carolina State Conference of the NAACP (No. 21-248)
Oral argument: Mar. 21, 2022
Court below: U.S. Court of Appeals for the Fourth Circuit
This case asks the Supreme Court to determine whether state legislators have a right to intervene in a lawsuit filed against the state of North Carolina concerning the constitutionality of the state’s voter-ID law when the Attorney General is already representing the state in the matter. Petitioners Philip E. Berger, President Pro Tempore of the North Carolina Senate and Timothy K. Moore, Speaker of the North Carolina House of Representatives argue that Rule 24(a) (2) of the Federal Rules of Civil Procedure (FRCP) and North Carolina law grant state legislators the right to intervene on behalf of the state in judicial proceedings. Petitioners further maintain that Rule 24 only requires state agents to establish a minimum standard of inadequate representation to intervene in litigation involving their state’s interests. Respondents North Carolina State Conference of the NAACP and other North Carolina NAACP branches counter that Rule 24(a) (2) does not allow an additional party to join the case when its interests are identical to the existing party’s interests. Moreover, the Respondents argue that state legislators need to demonstrate a higher standard of inadequacy to show that the Attorney General is inadequately representing the state to join the case. The outcome of this case has important implications for the role of state governments in litigation, future parties that are or will be engaged in litigation with the states, and the judiciary.
Full text available at https://www.law. cornell.edu/supct/cert/21-248.
Morgan v. Sundance, Inc. (21-328)
Oral argument: Mar. 21, 2022
Court below: U.S. Court of Appeals for the Eighth Circuit
This case asks the Supreme Court to interpret the Federal Arbitration Act (FAA) to assess whether arbitration clauses in contracts may be waived by entering litigation. The FAA provides standards that courts must apply when enforcing contractual agreements to arbitrate disputes. Robyn Morgan argues that the FAA requires courts to interpret arbitration agreements to be no less and no more enforceable than other contractual provisions. Therefore, Morgan contends that she does not need to show that she was prejudiced in order to establish that her employer, Sundance, Inc. (Sundance), waived an agreement to arbitrate. Sundance counters that the FAA merely provides minimum standards for arbitration clauses, and even if it did not, proving waiver in this instance requires a showing of prejudice. The outcome of this case has heavy implications for arbitration proceedings and employment contracts.
Full text available at law.cornell.edu/ supct/cert/21-328.
Golan v. Saada (No. 20-1034)
Oral argument: Mar. 22, 2022
Court below: U.S. Court of Appeals for the Second Circuit
This case asks the Supreme Court to determine whether, under the Hague Convention, a court may consider ameliorative measures, such as protective orders or custody determinations, to prevent grave danger to a child when ordering a child back to their home country. The Hague Convention requires that children abducted in violation of parental custody rights must be returned to their country of habitual residence. Narkis Golan, a United States citizen living in Italy, brought her Italian-born child to the United States, and did not return to Italy because she was a victim of domestic abuse by her Italian husband, Isaac Saada. Saada then sued Golan under the Hague Convention. Golan claims that her case falls under an exception within the Hague Convention that stops the return of the child if there is risk that the child will be in grave danger. While the lower court found sufficient ameliorative measures to prevent potential danger and granted Saada’s petition, Golan argues that the ameliorative measures are counter to the goals of the Hague Convention and should not be required or considered, especially where there is domestic violence. Saada responds that ameliorative rights must be considered to fairly assess the child’s return to their habitual residence. The outcome of this case could affect the safety of children, Hague Convention proceedings, and cooperation between foreign nations.
Full text available at https://www.law. cornell.edu/supct/cert/20-1034.
Oral argument: Mar. 23, 2022
Court below: U.S. Court of Appeals for the Second Circuit
This case asks the Supreme Court to decide whether a private commercial arbitral tribunal is a “foreign or international tribunal” for purposes of 28 U.S.C. § 1782, a federal law that governs international judicial assistance. International judicial assistance refers to aid provided by one sovereign government to another in judicial proceedings. In ZF Automotive US, Inc. v. Luxshare, Ltd, Petitioner ZF Automotive US, Inc. contends that, based on the plain meaning and legislative history of § 1782, it does not apply to private commercial arbitral tribunals located in foreign nations. Respondent Luxshare, Ltd. counters that the dictionary definitions and legal use of the terms “foreign” and “tribunal” show that the statute does apply to private commercial arbitration. In AlixPartners, LLC v. Fund for Protection of Investor Rights in Foreign States, Petitioner AlixPartners, LLC argues that its arbitral panel does not qualify under § 1782 simply due to the international nature of the parties or the dispute because that does not turn the panel itself into an “international tribunal.” Respondent Fund for Protection of Investors’ Rights in Foreign States counters that the arbitral panel does constitute an international tribunal because it is resolving a dispute over whether one country violated its obligations under a treaty. These cases implicate the fair and efficient resolution of arbitral disputes, party autonomy, and international comity.
Full text available at https://www.law. cornell.edu/supct/cert/21-401.
LeDure v. Union Pacific Railroad Company (No. 20-807)
Oral argument: Mar. 28, 2022
Court below: U.S. Court of Appeals for the Seventh Circuit
This case asks the Supreme Court to determine whether a train that has stopped temporarily in a rail yard as part of its journey is considered “in use” on a railroad’s line and subject to the Locomotive Inspection Act (LIA) and other safety regulations. LeDure asserts that precedent cases under related legislation apply to the LIA and argues the term “use” encompasses locomotives, like UP5683, stopped en route to a destination, furthering the goal of the statutes to protect employees. Union Pacific counters that the precedent under similar statutes does not interpret “use” to encompass sidelined locomotives, and that the LIA contains unique aspects that limit the “use” of locomotives to their main purpose of actively hauling railcars. The outcome of this case has important implications for the safety and compensation of employees and the expectations of railroad operations.
Full text available at https://www.law. cornell.edu/supct/cert/20-807.
Southwest Airlines Co. v. Saxon (No. 21-309)
Oral argument: Mar. 28, 2022
Court below: U.S. Court of Appeals for the Seventh Circuit
This case asks the Supreme Court whether an airline ramp supervisor is exempt from arbitration under the Federal Arbitration Act. The Federal Arbitration Act codifies the federal policy for disputes to go through arbitration, exempting workers that engage in interstate commerce. Southwest Airlines argues that Saxon must resolve her dispute through arbitration because Saxon is not an exempt employee under the Act. Saxon argues that her work as a ramp supervisor includes loading and unloading cargo that travels interstate, so she is exempt from mandatory arbitration. The outcome of this case has implications for defining the limits of the Federal Arbitration Act and how courts define a worker operating in interstate commerce.
Full text available at https://www.law. cornell.edu/supct/cert/21-309.
Torres v. Texas Dep’t of Public Safety (No. 20-603)
Oral argument: Mar. 29, 2022
Court below: Texas Court of Appeals, Thirteenth District, Corpus Christi & Edinburg
This case asks the Supreme Court to consider whether an act of Congress which allows veterans to sue states in their state court violates Article I of the Constitution. Leroy Torres, a veteran who served in Iraq, filed an employment discrimination case in Texas state court against his former state employer after it failed to provide relief for military injuries. The Texas courts found that Torres could not draw the state into a lawsuit using Texas courts. Torres argues that the text, history, and precedent of the Constitution’s war powers require Texas to participate in the suit. The state employer counters that if a private party were to subject Texas to its own judicial system, it would violate principles of sovereign immunity. This case has important implications for injured veterans’ ability to obtain relief from unlawful discrimination and can potentially radically reshape the balance of power between federal and state courts in deciding war powers questions.
Full text available at https://www.law. cornell.edu/supct/cert/20-603.
Viking River Cruises, Inc. v. Moriana (No. 20-1573)
Oral argument: Mar. 30, 2022
Court below: California Second District Court of Appeal This case asks the Supreme Court to determine whether the Federal Arbitration Act demands that state courts enforce an arbitration agreement’s waiver of the statutory right of action to collect penalties on behalf of the state, despite state law prohibiting such a contractual waiver. Petitioner Viking River Cruises argues that the Federal Arbitration Act requires that arbitration agreements signed by employees must be enforced as written for claims brought under California’s Private Attorney General Act (PAGA) because such claims are individual disputes and incompatible with the procedures of individual bilateral arbitration. Respondent Angie Moriana counters that PAGA claims involve the state, not the individual, and that PAGA’s anti-waiver rule is necessary to bolster the state’s labor law enforcement. The outcome of this case has important implications for the enforcement of state labor codes, the availability of civil remedies for workers, and the effectiveness of arbitration agreements to resolve employment-related disputes.
Full text available at https://www.law. cornell.edu/supct/cert/20-1573.
