Recent U.S. Supreme Court Decisions and Other Current Issues for Local Governments

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1 Recent U.S. Supreme Court Decisions and Other Current Issues for Local Governments Presented and prepared by the IMLA Legal Advocacy Team Charles W. Thompson, Jr. Amanda Kellar November 2018 International Municipal Lawyers Association (IMLA) 51 Monroe St. Suite 404 Rockville, MD

2 U.S. SUPREME COURT 1. BEFORE THE COURT Practice before the Supreme Court has become specialized over the past twenty or so years. A party seeking review by the Court, opposing its review, or participating in a case where the Court has granted certiorari should recognize that the Court is not a court of error. The Court receives almost 10,000 petitions each year. Of these, it grants certiorari in about 80 cases and schedules oral argument for about 70 cases. Because prisoners (and other in forma pauperis petitioners) file the largest number of petitions with the Court, statistics suggest that only about 1% of the petitions filed are granted. If only paid cases filed with the Court are considered, the number increases to about 4%. In other words, the chances of getting the Court to take your case are slim. While rudimentary, counsel should review Rule 10 of the Supreme Court Rules as part of any consideration as to whether to seek certiorari. The Rule provides a guide to how counsel might structure a petition and ought to provide insight into whether to file a petition at all. The Rule provides: Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court s discretion, indicate the character of the reasons the Court considers: (a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court s supervisory power; (b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals; (c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court. A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law. Justice Alito recently pointed this out in his concurrence in the denial of certiorari in Salazar-Limon v. City of Houston. Framing the issue in a petition for certiorari ought to be the second step after reviewing the Rule. As noted, the Court must weed through several thousand requests to find the very few cases it wants to decide. Four Justices must vote to grant certiorari and each of their votes is precious and 2

3 well considered. A Justice may believe that an issue ought to be decided, but will withhold the vote to grant certiorari for many reasons. These can include fear that the issue will be decided adversely to the Justice s views for a variety of reasons including that the arguments advancing the issue in the petition seem leaden and unlikely to attract a majority; or a belief that another case frames the issue better. The petitions in Lane v. Franks and Integrity Staffing Solutions v. Busk offer two different approaches to framing an issue. The Court granted both petitions. In Lane, the issue was framed succinctly and without prelude; counsel couched the issue in viscerally and intellectually compelling language. In Integrity Staffing Solutions counsel offered a prelude to the similarly succinct issue offering a bit of important background to what might have otherwise appeared a very dull question. Each of these attorneys is a respected Supreme Court counsel who is a soughtafter advocate for a reason. While the Court denies certiorari to many similarly succinct and well phrased issues, many of the petitions it denies are garbled and include far too many issues for the Court s consideration. A case generally has one compelling reason that can attract the Court s attention and as with Lane a corollary issue attendant to it. Petitions that offer the Court an opportunity to decide more than two issues are rarely granted and framing the petition to include myriad issues may enjoy client approval, but will rarely find success. Because the Court receives so many petitions, finding amicus support can often help get the Court s attention and show that the case has a broader impact. Hearing the Petitioner make that argument can certainly be persuasive, but proof that the issue affects more than just the litigants says much more. Finding an amicus can often be difficult as where there is a circuit split, there will be many potential amici who don t want to see the law changed in their circuit, or their state court has adopted a rule with which they are happy. The more diverse the group the amicus represents the more likely the Court will recognize the need for deciding the issue. An amicus can sometimes change the proposed issue as the amicus may have a different view of what the Court should decide. Indeed, an amicus may articulate the issue differently and offer better reasons as to why the Court ought to decide the issue. A recent example of a case in which the Court granted certiorari where IMLA framed the issue differently than the petitioner was in District of Columbia v. Wesby. In Wesby, the petition focused the issues on the specific facts, which involved a trespassing suspect s claim of an innocent mental state and whether police officers are required to credit that mental state in making probable cause determinations for the purposes of effectuating an arrest. IMLA s amicus brief presented the issues more broadly and framed the issue outside of the trespassing context. Additionally, the Court s rules do not limit the amici to arguing the record and in large measure the Court s practice encourages the amici to bring to the Court s attention relevant facts, treatises and studies both at the petition and merits stage. In Comptroller v. Wynne, IMLA filed an amicus brief at the petition stage in support of the State of Maryland and several Maryland counties and 3

4 the Court sought the views of the Solicitor General. The Solicitor General filed his views in early April 2014, suggesting that the Court grant certiorari and reverse the Maryland court; he cited to facts offered by IMLA in its amicus brief that were not part of the record. The Court granted certiorari and decided the case as a part of its 2014 Term. Similarly, in Murr v. Wisconsin, which was decided last term, Justice Kennedy cited to the IMLA amicus brief, which listed over 100 examples of merger provisions from around the country in rejecting the petitioner s argument. And in Pleasant Grove City v. Summum, 555 U.S. 460 (2009), Justice Alito in deciding an important government speech case referred several times to the IMLA amicus brief and to a survey IMLA conducted of its members to support his decision. As a Respondent, when the Petitioner files with the Supreme Court, counsel first must consider whether to file a response or waive doing so. Advice on this topic varies, with some counseling to file a response and others counseling against filing. Filing a response draws attention to the issue and for that reason alone, many counsel against it. On the other hand, the Court will ask for a response in cases it considers might merit certiorari. Just one Justice can ask for a response, so the request may not indicate that certiorari will be granted, but certiorari will not be granted where there is not a response and the request draws attention to the issue. So, in cases where counsel believes a response will be requested, it is best to be proactive and file and not waive the response. The response needs to recognize that the question for the Court at this stage is whether to grant certiorari, not whether the lower court was wrong in its decision. Going back to Rule 10, counsel for the Respondent should describe why the case does not fit. In Plumhoff v Rickard, the Court asked the Respondent to file a response. That response provided little help to the Court and may be a model of how not to write a Respondent s brief at the petition stage. In contrast, the City of Chicago s outside counsel, Ruth Masters, and its appellate team lead by Benna Ruth Solomon filed a model response in Hillman v. City of Chicago and the Court denied certiorari in May Unlike a Petitioner seeking certiorari and trying to draw attention to the issue, the Respondent tries to cover itself in anonymity. So, in addition to the reasons for filing or not filing a response already discussed, because the goal of the Respondent is to have the Court deny certiorari, it is an extremely rare case that a Respondent should consider obtaining amicus support at the certiorari stage as doing so only draws attention to the case and increases the chances that the Justices will take a closer look at the case. Additionally, the Respondent may want to look at the Court s schedule. Timing a response can reap some rewards. For example, timing a response or waiver to get into the long conference could make a difference in the quest for anonymity. During its term, the Court holds private conferences to discuss whether to grant certiorari. The long conference is the first conference of the term and is usually held the Friday before the Court s first oral arguments in the term. At the long conference, the Court reviews thousands of petitions that have stacked up during the summer recess. At other conferences during the year the numbers are about a hundred or so, which makes anonymity at the long conference statistically more likely. When the Court conferences, the Chief Justice circulates a list of cases for discussion and each Justice may add to that list. If a case scheduled for that conference is not on the discussion list, certiorari will be denied. 4

5 If the Court grants certiorari, the first thing counsel should do is contact the Georgetown Supreme Court Institute and ask for a moot court. The Institute provides this service free of charge and to the first party to contact it; although, its new policy is to toss a coin in those cases where each party contacts it within 24 hours, so contacting them quickly cannot be over emphasized. (If you would like to schedule a moot in your case, call or Dori Bernstein, SCI Director, at (202) or dkb37@law.georgetown.edu.) Merits briefs can be due in very short order. This means that counsel should be prepared by having lined up amici and possibly engaging Supreme Court counsel. Getting Supreme Court counsel for the merits and getting amici at this stage will be much easier than at the petition stage. Attorneys practicing before the Court often want to increase the number of arguments on their resume and may be willing to handle a case pro bono. Amici will often line up unbidden to file either for or against an issue. Coordinating the amicus effort for the client should be an important part of the advocacy. Rather than each amicus writing on the same subpart of an argument, each can take an argument, support it and expand it, avoiding repetition. Counsel for a party cannot write an amicus brief in the case, so while discussion and coordination are important, those discussions and that coordination cannot direct the amicus brief in detail. In the last several years, the Ninth Circuit generated the most merits cases of any circuit and its reversal rate has been high. In the October 2013 term, the Ninth and Sixth Circuits tied for the most cases, but in the October term of 2011, the Ninth Circuit generated almost one third of the cases decided. It was reversed in roughly 71% of those cases. In the terms, the Ninth Circuit still generated the most merits cases, though not as many in prior years (21%, 13% and 11% of the merits cases), but the Supreme Court continued to reverse it at a high rate (63%, 80% and 88% of the time). Only state supreme courts combined for generating more merits cases than the Ninth Circuit for the 2015 term and 2016 term. In the 2016 term, the Sixth Circuit and the Federal Circuit were close behind the Ninth Circuit, generating 10% of the merits cases respectively and both were reversed 86% of the time. In fairness, nearly 80% of the cases accepted in the 2016 term were reversed and just over two-thirds of those accepted were reversed in the 2015 term. So, the odds are, if you were victorious below and the Court accepts certiorari, you may be in for a reversal. Scotusblog.com (from which these statistics are derived) provides a great resource on the Court and provides statistical reports for much of its activity that can be vital to understanding the Court. A new addition to the Scotusblog.com statistics shows who has argued cases before the Court and their experience. Many of the premier practitioners before the Court have experience in the Office of Solicitor General, some having been Solicitor General at one time. 2. OCTOBER TERM 2017 South Dakota v. Wayfair - Taxation The issue in this case was whether the Supreme Court should abrogate Quill Corp. v. North Dakota's sales-tax-only, physical-presence requirement. 5

6 It is estimated that states and local governments lose between $8 and $33 billion dollars each year as a result of the Supreme Court s physical presence requirement. In 1967, in Bellas Hess, the Supreme Court held that an out-of-state seller s requirement to collect and remit sales tax depended on whether that seller had a physical presence in the State. In 1992, the Court was asked to revisit its ruling in Bellas Hess, and in Quill v. North Dakota, the Supreme Court upheld the rule, largely on stare decisis grounds. The physical presence rule has long been criticized and in 2015, Justice Kennedy called its validity into question in a concurring opinion in Direct Marketing Assn v. Brohl. South Dakota s legislature acted quickly to pass a law that directly challenged Quill. Specifically, the Act applied to require out-of-state sellers to collect and remit sales tax if they delivered more than $100,000 worth of goods or services into the State or engaged in more than 200 separate transactions in the State. The Act specifically forecloses retroactive liability for taxation and stayed its application until the constitutionality of the law had been established. South Dakota then sought declaratory judgment that its law was constitutional. Unsurprisingly, the law was held to be unconstitutional under Quill by the South Dakota Supreme Court. In a 5-4 opinion authored by Justice Kennedy, the Supreme Court held that the physical presence rule for the purpose of requiring out of state sellers to collect and remit sales tax is unsound and incorrect, has limited States and local governments ability to seek long-term prosperity, and that Quill Corp. v. North Dakota, 504 U. S. 298 (1992), and National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753 (1967) are therefore overruled. The Court concluded that Quill and Bellas Hess were not only wrong in their interpretations of the Commerce Clause at the time they were decided, but that [e]ach year, the physical presence rule becomes further removed from economic reality, particularly given the boom of e-commerce, and results in significant revenue losses to the States. The Court explained that under the Commerce Clause, the correct inquiry is not physical presence, but whether the tax applies to an activity with a substantial nexus with the taxing state under Complete Auto. The Court explained that Quill was flawed because: (1) physical presence is not required for an activity to have a substantial nexus with the taxing state under Complete Auto; (2) Quill creates rather than resolves market distortions; and (3) Quill imposes the sort of arbitrary, formalistic distinction that the Court s modern Commerce Clause precedents disavow. The Court also noted the serious federalism concerns with its prior holdings in Bellas Hess and Quill and that it was an extraordinary imposition by the Judiciary on States authority to collect taxes and perform critical public functions. The Court explained that the purpose of the Commerce Clause is to prevent States from engaging in economic discrimination not to permit the Judiciary to create market distortions. According to the Court, Quill did exactly the latter by allowing remote sellers to avoid the regulatory burdens of tax collection and therefore 6

7 offer lower prices (and even advertise that their goods are being sold tax free ). This judicially created tax shelter has been exploited as technology has advanced. The Court concluded that the doctrine of stare decisis can no longer support the Court s prohibition of a valid exercise of the State s sovereign power. The majority explained that although Quill was wrongly decided in 1992, the drastic change in circumstances with the way companies utilize Internet sales made the Court s earlier error all the more egregious and harmful. In terms of reliance principles, which sometimes countenance against overruling precedent, the Court noted that the physical presence rule is not clear or easy to apply. Further, reliance principles only apply for legitimate reliance interests, and here, the tax problems States face is largely due to consumers failing to comply with lawful use taxes and so the companies should not be allowed to argue that they are relying on opportunities for tax avoidance as a legitimate constitutional concern. And while the Court noted that some small remote sellers might be burdened by the abolishment of the physical presence requirement, the Court indicated that South Dakota s law at least seemed to take these concerns into consideration and that nothing would preclude Congress from enacting legislation to address those concerns. Finally, in terms of the facts of this case, the Court explained, the nexus was clearly sufficient under Complete Auto based on both the economic and virtual contacts Overstock and Wayfair have with the State. The Court remanded the case for the lower courts to decide whether some other principle might invalidate the Act, but noted that the tax system the State had enacted included several features that appear designed to prevent discrimination against or undue burdens upon interstate commerce. In an interesting lineup, Chief Justice Roberts authored a dissent, joined by Justices Kagan, Breyer, and Sotomayor. The dissents primary argument is that principles of stare decisis weigh against overruling precedent and that Congress is in a better position to enact a law to weigh all of the policy considerations at play with e-commerce. IMLA joined an amicus brief that will be filed by the SLLC in this case. Gill v. Whitford - Partisan Gerrymandering / Redistricting The questions presented in this case are: (1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they 7

8 would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable. In other words, the issues in this case are whether partisan gerrymandering cases are justiciable and if so, by what standard should the constitutionality of partisan gerrymandering claims be measured? In 2011, Wisconsin legislators redrew state assembly districts to reflect population changes recorded in the 2010 census. Map makers used a model designed to predict the likelihood that various proposed districts would elect a Republican. In the 2015 election, Republican candidates received less than 49% of the statewide vote and won seats in more than 60% of the state s assembly districts; and, in 2014, 52 percent of the vote yielded 63 seats for Republicans. In 2015, Wisconsin voters filed a lawsuit claiming that Wisconsin s election map was the result of partisan gerrymandering and violated their constitutional rights. A divided panel of three federal judges ruled in favor of the challengers, finding that the map enacted by the Wisconsin legislature was a result of partisan gerrymandering and prohibited by the First and Fourteenth Amendments. The three-judge panel had ordered that new legislative districts be drawn by this November for the 2018 elections, but the Supreme Court stayed that order until it has a chance to rule on the case. The challengers proposed a three-part test for determining the influence of partisan gerrymandering in the district-drawing process: (1) Is there discriminatory intent?; (2) Is there a discriminatory effect, also known as the efficiency gap?; and (3) Can the redistricting plan s partisan effect can be explained by the legitimate state prerogatives and neutral factors that are implicated in the redistricting process. The second prong, known as the efficiency gap, is drawn from a 2015 article written by a University of Chicago law professor and a lawyer for the challengers. It is based on wasted votes votes in each district cast for a non-winning party s candidate. By dividing the difference between the sums of each party s wasted votes by the total number of votes cast, the proposed standard yields an efficiency gap. The challengers argued that efficiency gaps over 7% violate the Constitution. The efficiency gap in Wisconsin was 13.3 percent in 2012 and 9.6 percent in 2014, according to the proposed standard. On June 18, 2018, the Court in a decision in which all the justices concurred in the judgment to vacate the lower court ruling in favor of the Plaintiffs, but over the dissent of Justices Thomas and Gorsuch the case was remanded to the District Court to give the plaintiffs an opportunity to prove concrete and particularized injuries using evidence that would tend to demonstrate a burden on their individual votes. In so doing the court noted that a voter who sues based on injury arising from political gerrymandering must show particularized harm. Four of the plaintiffs pleaded such a particularized burden. But as their case progressed to trial, they failed to pursue their allegations of individual harm. They instead rested their case on their theory of statewide injury to Wisconsin Democrats. Because the issues involved include unsettled 8

9 questions, the Court determined to remand the case rather than to dismiss it for not being justiciable as presented. IMLA filed an amicus brief in this case, focusing on the effects of partisan gerrymandering and specifically, how it can lead to preemption of local laws. The Supreme Court heard oral argument in this case on October 3, 2017 and will issue a decision before the end of June Benisek v. Lamone First Amendment / political gerrymandering This case involves a partisan gerrymandering challenge to Maryland s Sixth Congressional district. Republicans in that district claim that they were retaliated against in violation of their First Amendment rights when they voted for a Republican in 2010 and then thereafter, Democrats redrew the district in a way to ensure that the district would be won by Democrats in the future. Democrats have won the district since The Plaintiffs sought a preliminary injunction to restrain use of the gerrymandered districts in the 2018 elections. The issues in this case are: (1) Whether the majority of the three-judge district court erred in holding that, to establish an actual, concrete injury in a First Amendment retaliation challenge to a partisan gerrymander, a plaintiff must prove that the gerrymander has dictated and will continue to dictate the outcome of every election held in the district under the gerrymandered map; (2) whether the majority erred in holding that the Mt. Healthy City Board of Education v. Doyleburden-shifting framework is inapplicable to First Amendment retaliation challenges to partisan gerrymanders; and (3) whether, regardless of the applicable legal standards, the majority erred in holding that the present record does not permit a finding that the 2011 gerrymander was a but-for cause of the Democratic victories in the district in 2012, 2014, or On June 18, 2018, the Court in a Per Curiam decision concluded that the Plaintiffs had failed to sustain their burden in seeking a preliminary injunction in this case. The Court noted that a Plaintiff seeking a preliminary injunction must pursue the claim with diligence and that a court must weigh the issues with due regard to the public interest in having orderly elections. Despite claims that the state s tactics of delay thwarted their opportunity to obtain timely relief, the court believed that the Plaintiffs had not pursued their claim with the diligence necessary to obtain relief and that in doing so the public s interest in conducting orderly elections would have become unhinged had an injunction issued. The Court noted that the issues associated with whether political gerrymandering might violate Constitutional Rights were clearly within the lower court s consideration as certiorari in Gill had been granted before the lower court ruled in this case. IMLA filed an amicus brief in this case. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission - Public Accommodations Laws / Civil Rights / Free Exercise of Religion 9

10 In this case, in July 2012, a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado open to the public, and requested that the owner, Mr. Phillips, create a cake for their wedding. The owner declined, telling them that he does not create wedding cakes for same-sex weddings because of his religious beliefs. He offered to sell them other baked goods in his store and the couple left without purchasing anything. The Colorado Anti-Discrimination Act (CADA) prohibits discrimination in places of public accommodation on the basis of sexual orientation as well as other protected characteristics. The Act defines public accommodation broadly to include any place of business engaged in any sales to the public and any place offering services... to the public, but excludes a church, synagogue, mosque, or other place that is principally used for religious purposes. Colo. Rev. Stat (1). The couple filed a complaint alleging that Masterpiece had discriminated against them in a place of public accommodation because of their sexual orientation in violation of CADA. After the Civil Rights Division investigated, the Commission found it proper to conduct a formal hearing and a State Administrative Law Judge (ALJ) ruled in favor of the couple. The Commission affirmed the decision of the ALJ. Masterpiece appealed, and the Colorado Court of Appeals also affirmed, rejecting its Free Speech and Free Exercise arguments. The Supreme Court granted certiorari to answer the following question: Whether applying Colorado's public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment. In narrow 7-2 ruling authored by Justice Kennedy, the Supreme Court reversed though it left that question unanswered. The Court found in favor of the cakemaker, concluding that in adjudicating whether his religion must yield to an otherwise valid exercise of state power, (here the anti-discrimination provision of the state s public accommodation law), the Colorado Civil Rights Commission failed to consider the case with the religious neutrality that the Constitution requires. Justice Kennedy, who has famously authored the Obergefell, Windsor, and Lawrence decisions, devoted a significant portion of the opinion to explain that [o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. And the majority acknowledged that while the First Amendment ensures that people are given protection for religious and philosophical objections to gay marriage, as a general rule such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal 10

11 access to goods and services under a neutral and generally applicable public accommodations law. However, the Court went on to explain, that instead of treating Mr. Phillips claims with the neutral and respectful consideration to which they were entitled, the Colorado Commission evidenced clear and impermissible hostility toward the sincere religious beliefs that motivated his objection. Specifically, after the ALJ found in favor of the couple, the Commission convened to discuss the case. During one of those public hearings, one commissioner stated: Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust And to me it is one of the most despicable pieces of rhetoric that people can use to use their religion to hurt others. In addition to the statements by the commissioner, the majority found evidence of religious hostility toward Mr. Phillips by the Commission in the different treatment it afforded other bakers who refused to bake cakes that demeaned same-sex marriage based conscience objections. Justice Kennedy pointed out at oral argument that the State s position toward Mr. Phillips religion had been neither tolerant nor respectful, and the majority s opinion rests on this fact. In holding that the Commission s actions violated the Free Exercise Clause of religion, the Court explained: [w]hatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission s consideration of this case was inconsistent with the State s obligation of religious neutrality. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires. (emphasis added) The Court left open the door for the lower courts do develop the law in this area noting the outcome may be different in a future controversy. The Court concluded its opinion by noting [t]he outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market. Justice Ginsburg, joined by Justice Sotomayor, dissented. She noted that [t]here is much in the Court s opinion with which I agree, but disagreed with its ultimate conclusion that the same-sex couple should lose this case. Justice Kagan, Gorsuch, and Thomas all filed concurring opinions. IMLA joined an amicus brief filed by the SLLC in this case. Trump v. Hawaii Immigration / Injunctions The Proclamation at issue in this case was the third travel ban that President Trump issued after taking office. (The first was enjoined and subsequently abandoned by the Administration and the second was also enjoined, but then because it was only a temporary restriction that 11

12 expired after 90 days, the Supreme Court dismissed the challenged action as moot). Specifically, in September 2017, President Trump enacted a third travel ban (EO-3), which placed entry restrictions on nationals of eight countries (Chad, Iran, Somalia, Libya, North Korea, Syria, Venezuela, and Yemen) based on the executive branch s review of data of foreign countries that in its view, presented deficient information-sharing practices and therefore presented national security concerns. The challengers to the Presidential Proclamation claimed that the President lacked authority under the Immigration and Nationality Act (INA) to impose the entry restrictions on foreign nationals and that the Proclamation violated the Establishment Clause of the First Amendment as it was motivated not by national security concerns, but rather by animus toward Islam. The Ninth Circuit upheld the district court s grant of a nationwide injunction barring the enforcement of the entry restrictions. The issues in this case were: (1) Whether the respondents challenge to the president s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors is a lawful exercise of the president s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution. In a 5-4 decision authored by Chief Justice Roberts, the Supreme Court was highly deferential to executive authority in the area of national security and the Court rejected the challenger s arguments and remanded the case. As to the challenge under the INA, the Court held that its plain language grants the President broad discretion to suspend entry of aliens into the United States and that [t]he President lawfully exercised that discretion based on his findings that entry of the covered aliens would be detrimental to the national interest. The Court noted that the challengers arguments assumed that the President was required to explain his finding that entry would be detrimental to the United States with sufficient detail to enable judicial review. On this point, the Court seemed skeptical, but noted that even if some review was appropriate, the attacks on the sufficiency of the President s findings cannot be sustained. Regarding the Establishment Clause, the challengers argued that the Proclamation violates the First Amendment because it singles out Muslims for disfavored treatment and it operates as a religious gerrymander, based on the fact that the majority of the countries covered by the Proclamation have Muslim-majority populations. As the Court explains, [a]t the heart of plaintiffs case is a series of statements by the President and his advisers casting doubt on the official objective of the Proclamation. The majority identifies statements the President made 12

13 both before and after taking office, including the fact that he called the travel ban a Muslim ban and that he reposted anti-muslim videos. The Court explains the Establishment Clause issue thusly: Plaintiffs argue that this President s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition. But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself. In language that was very deferential to Presidential authority, the Court noted that the plaintiffs were seeking to invalidate a national security directive, which is facially neutral with regard to religion. The Court reiterated for example, that its inquiry into matters of entry and national security is highly constrained. Ultimately, the Court did not take a firm stance as to whether it could even look behind the face of the Proclamation to consider the extrinsic evidence, including the President s own anti-muslim statements, however, it assumed that it could and applied a rational basis review standard in doing so. Specifically, the Court noted the policy would be upheld so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds. Under this standard, the Court concluded that there was persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from religious hostility The Court noted that three features of the Proclamation support that it is based on a legitimate national security interests rather than unlawful animus. First, three Muslim-majority countries have been removed from the list since the first travel ban was introduced (Iraq, Sudan, and Chad). Second, the Proclamation includes exceptions for certain categories of foreign nationals for nonimmigrant visas (i.e., student exchange). Third, the Proclamation contains a waiver program to allow immigrants and nonimmigrants to seek entry under certain circumstances, including if they can demonstrate they would not pose a threat to public safety (though at least two Justices who dissented were skeptical that the waivers were genuine). Thus, the Court concluded that the government could survive rational basis review and the plaintiffs had therefore not established a likelihood of success on the merits of their constitutional claims. IMLA joined an amicus brief filed by the SLLC focused solely on the issue of the applicability of nationwide injunctions. Because the Court determined that the challengers were not likely to succeed on the merits, it reversed the grant of a nationwide injunction and did not reach the issue of the propriety of nationwide injunctions in general. In his concurrence, Justice Thomas argued that he believes nationwide injunctions are legally and historically dubious and that the Court is dutybound to adjudicate the lower court s authority to order injunctions on a universal or nationwide basis. 13

14 Justice Kennedy also filed a concurrence. In his opinion, he noted that there are instances when governmental action may be subject to judicial review to determine whether or not it is inexplicable by anything but animus (internal quotations omitted). However, he also stated that there are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention, but [t]hat does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects. There were two dissents filed in this case, one by Justice Breyer, with whom Justice Kagan joined, and one by Justice Sotomayor, with whom Justice Ginsburg joined. Justice Sotomayor s dissent focused exhaustively on President Trump s anti-muslim statements both as a candidate and President. She concludes that based on the record, a reasonable observer would conclude that the Proclamation was motivated by anti-muslim animus and that that alone is enough for the plaintiffs to establish that they are likely to succeed on the merits of the case. She chides the majority for briefly recount[ing] a few of the statements and background events that form the basis of [their] constitutional challenge and notes [t]he full record paints a far more harrowing picture, from which a reasonable observer would readily conclude that the Proclamation was motivated by hostility and animus toward the Muslim faith. Notably, Justices Sotomayor and Ginsburg would not disregard the President s campaign statements in determining whether an official policy in question violates the Constitution. Justice Sotomayor also notes that the Court recently decided Masterpiece Cakeshop, in which it concluded that the official expressions of hostility to religion from the commissioners, which were not disavowed, were inconsistent with what the Free Exercise Clause requires and that the same should hold true here. Lozman v. City of Riviera Beach, Florida First Amendment The question presented is whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law. In this case, Lozman was an outspoken critic of the City after he learned of its eminent domain plans for the Marina area where he lived on a floating home. After the City passed, via emergency session, a bill that approved the redevelopment plan, Lozman filed suit against the City seeking to invalidate it. A few months later at a regular public City Council meeting, Lozman was granted permission to speak during the non-agenda public comments portion of the meeting. He began by criticizing public officials as corrupt and a Councilperson interjected and told him to stop his comments and when he did not, she had him arrested. (He was informed if he left the meeting, he would not be arrested, but he refused to leave). He was charged with disorderly conduct and resisting arrest. The state s attorney determined there was probable cause for the arrest but dismissed the charges. Lozman subsequently filed a Section 1983 action against the City claiming that the arrest was retaliatory in violation of the 14

15 First Amendment. The case went to trial and the jury found there had been probable cause to arrest and returned a verdict in favor of the City. The Eleventh Circuit upheld the jury verdict, concluding that the officer had probable cause to arrest Lozman, which therefore defeated his claim of First Amendment retaliatory arrest as a matter of law. On June 18, 2018, the Court in an 8-1 decision concluded that under the facts of this case, that a person may be able to sustain a claim of retaliatory arrest even where there is probable cause supporting the arrest. The case seems very fact dependent and diverges from a bright line rule that the Court usually seeks. Here, the Plaintiff offered evidence from a closed meeting that a council member expressed interest in using the city s powers to intimidate Mr. Lozman and evidence that could be taken as a consensus to do so. In dissent Justice Thomas attempts to clarify what the holding does while he argues for a bright line rule. According to Justice Thomas, the case instructs: First, there must be an official municipal policy of intimidation. (quoting Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 691 (1978)). Second, the policy must be premeditated and formed well before the arrest here, for example, the policy was formed months earlier. Third, there must be objective evidence of such a policy. Fourth, there must be little relation between the protected speech that prompted the retaliatory policy and the criminal offense for which the arrest is made. Finally, the protected speech that provoked the retaliatory policy must be high in the hierarchy of First Amendment values. Where all these features are present, the Court explains, there is not the same causation problem that exists for other retaliatory-arrest claims. The Court remanded the case to give the 11 th Circuit an opportunity to consider whether the verdict in the lower court could nevertheless sustain the City s position that the arrest was not made for retaliatory reasons. IMLA joined an amicus brief that will be filed by the SLLC in this case. Murphy (Christie) v. National Collegiate Athletic Association / New Jersey Thoroughbred Horsemen s Association, Inc. v. National Collegiate Athletic Association - Commandeering The question presented in this case is whether a federal statute that prohibits modification or repeal of state-law prohibitions on private conduct impermissibly commandeers the regulatory power of states in contravention of New York v. United States. Instead of directly prohibiting sports betting under federal law, Congress passed the Professional and Amateur Sports Protection Act (PASPA), which prohibits state-sanctioned sports gambling. PASPA makes it unlawful for a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact sports wagering. 28 U.S.C. 3702(1). In 15

16 2012, New Jersey amended its constitution to allow some sports gambling. New Jersey was sued by the NFL and other sports leagues for violating PASPA. New Jersey argued PASPA is unconstitutional under the anti-commandeering doctrine because it requires the states to affirmatively keep a prohibition against sports wagering on their books, lest they be found to have authorized sports gambling by law by repealing the prohibition. The Supreme Court has only struck down laws on anti-commandeering grounds twice. In New York v. United States, the Supreme Court struck down a take-title provision whereby states were required to take title to radioactive waste by a specific date, at the waste generator's request, if they did not adopt a federal program. And in Printz v. United States, the Court struck down a federal law requiring state officers to conduct background checks on prospective gun owners. In Christie I, the Third Circuit responded that New Jersey s position rest[ed] on a false equivalence between repeal and authorization, implying that a repeal is not an authorization. At the time, New Jersey petitioned the Supreme Court and the United States submitted an amicus in opposition, arguing that under the Third Circuit s construction of PASPA, States were free to repeal their prohibitions on sports wagering in whole or in part. Thus, after losing at the Third Circuit, in 2014 New Jersey passed a law repealing restrictions on sports gambling (as opposed to affirmatively allowing it and setting up a state regulatory scheme). New Jersey was sued again by many of the same parties, and in Christie II, New Jersey again argued that PASPA unconstitutionally commandeers states, this time by not allowing New Jersey to repeal its own laws. The Third Circuit characterized New Jersey s argument as follows: We told you so if the legislature cannot repeal New Jersey s prohibition as it attempted to do in the 2014 Law, then it is required to affirmatively keep the prohibition on the books, and PASPA unconstitutionally commandeers the states. Nonetheless, the Third Circuit in Christie II again rejected the state s anti-commandeering argument. The Third Circuit distinguished PASPA from the laws at issue in New York and Printz, noting that PASPA did not present states with a coercive choice to adopt a federal program or require states to take any action. In a split decision, Justice Alito writing for the majority (which at least 5 other Justices joined and in some places 6) concluded that PASPA amounts to an unlawful commandeering of New Jersey s legislature because it is ordering the States to act (or not act) in a certain way, as opposed to regulating individuals directly. In concluding that PASPA amounts to a direct affront to state sovereignty, the Court notes that [i]t is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. The Court explained that [t]he anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to 16

17 the States. Put another way, conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The majority explained the rationales for the anti-commandeering principle include: 1) that it protects liberty as a healthy balance of power between the States and the Federal Government [reduces] the risk of tyranny and abuse from either front. ; 2) the principle promotes political accountability; and 3) it prevents Congress from shifting costs of regulations onto States. In rejecting the Respondents and United States argument that PASPA was preempting state law, the Court concluded that it is not enough to point to the Supremacy Clause -- preemption is a principle that is based on a federal law that regulates the conduct of private actors, not the States. Thus, the Court concluded that the PASPA provision prohibiting state authorization of sports gambling is not a preemption provision because there is no way in which this provision can be understood as a regulation of private actors. Justice Ginsburg dissented, joined by Justice Sotomayor and by Justice Breyer in part. The dissent s principle criticism of the majority s opinion is that even if it assumed the portion of the statute that prohibited the modification / repeal of a state-law prohibition of private conduct violated the commandeering principles of the Tenth Amendment, the dissent would not have deploy[ed] a wrecking ball to destroy the statute in its entirety. In other words, the dissent likely would not have found the provision in question to violate the Tenth Amendment (though interestingly provided no analysis on this point), but even if it did, the dissent did not think the majority was correct in striking down the entire statute. IMLA joined an amicus brief filed by the SLLC in this case, arguing that PASPA not only violates the Tenth Amendment, but the issue in the case implicates a host of other critically important state and local laws. Specifically, to allow Congress to freeze into place state gambling laws through PASPA, would also allow Congress to do the same thing in areas like state authorization of medical marijuana, autonomous vehicles, physician assisted suicide, etc. Janus v. American Federation of State, County, and Municipal Employees, Council 31 First Amendment The question presented is whether Abood v. Detroit Board of Education should be overruled and public-sector agency shop arrangements invalidated under the First Amendment. In a 5-4 opinion authored by Justice Alito, the Supreme Court overruled Abood v. Detroit Board of Education. Specifically, the Court held that the Illinois law at issue, which according to the Court, requires public employees to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern. 17