A Seat at the Sitting - April 2022

The April Docket in 90 Minutes or Less

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Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting.  The cases that will be covered are included below.




  • Noel J. Francisco, Partner-in-Charge Washington, Jones Day
  • Allyson Newton Ho, Partner and Co-Chair, Constitutional and Appellate Law Practice Group, Gibson, Dunn & Crutcher LLP
  • Aaron M. Streett, Chairman, Supreme Court and Constitutional Law Practice, Baker Botts LLP   
  • Misha Tseytlin, Partner, Troutman Pepper Hamilton Sanders LLP
  • Moderator: Elbert Lin, Partner, Hunton Andrews Kurth LLP




As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.



Nate Kaczmarek:  Good afternoon and welcome to A Seat at the Sitting. This is a special webinar series presented by The Federalist Society’s practice groups designed to preview the April SCOTUS docket in 90 minutes or less. As you’ve come to expect, we have gathered a great panel of legal experts and we’re looking forward to a very informative discussion. My name is Nate Kaczmarek. I’m Vice President and Director of the Practice Groups. As always, please note that all expressions of opinion on today’s program are those of our guests. We are certainly very pleased to have Elbert Lin join us to lead us through our April program. Elbert, how are you today?


Elbert Lin:  Good Nate. Good to see you.


Nate Kaczmarek:  Glad to have you with us. Elbert is a partner at Hunton Andrews Kurth. He is the former Solicitor General of West Virginia. Elbert has experience in the private sector and multiple branches of government. His practice has spanned a wide range of issues including major questions of constitutional and administrative law at the federal and state levels. Earlier in his career, he served as a trial attorney in the federal programs branch of the US Department of Justice’s Civil Division. He also has been a law clerk on all three levels of the Federal Judiciary including for Justice Thomas on the Supreme Court, Judge Pryor on the US Court of Appeals for the Eleventh Circuit, and for Senior Judge Keaton on the US District Court for the district of Massachusetts. Elbert’s full bio and the complete bios of all of our speakers are available for your review on our website fedsoc.org.


In a moment, I’ll turn the program over to Elbert. Once our speakers have had ample time to summarize and discuss the upcoming cases, we’ll go to audience Q-and-A. So audience, please think of the difficult questions you’d like to ask of them. Audience questions can be submitted via the zoom chat function. We’ll do our best to address as many of them as our time this afternoon will allow. With that, thank you everyone for being with us this afternoon. Elbert, the floor is yours.  


Elbert Lin:  Thanks Nate. Well, welcome everybody to the final Seat at the Sitting for the October 2021 term which starts next Monday, April 18th. It is what we all anticipate, barring some dramatic change in circumstances, to be Justice Breyer’s last sitting, and so if for no other reason, you should tune into the live stream for one last epic hypothetical. And so you can say you were there when he asked about the giant goat on the mountain top drinking coffee.

There are ten cases -- five each week. And they really do span a wide range of issues --bankruptcy to Indian law, civ pro to the first amendment, immigration, and habeas. And we are privileged to have with us -- for those of you who are Yankees fans, you’ll understand the reference -- a murderers’ row of SCOTUS advocates to cover these cases -- all clerked and have argued multiple times at the Supreme Court, all, I’m proud to say, are friends, and all are also better dressed than I am today, but that’s because I’m the moderator, and so I’m channeling the relaxed vibe of the moderator.


In alphabetical order, I’ll give brief introductions since they really don’t need an introduction. The first is the Honorable Noel Francisco. Noel is the partner in charge of the Washington office of Jones Day. He’s also the 47th Solicitor General of the United States. He served from 2017 to 2020. He was also the Deputy Assistant Attorney General of the Office of Legal Counsel from 2003 to 2005. He served in the white house counselor’s office from 2001 until 2003. Noel clerked for Justice Scalia in the 1997 term and is a graduate of the University of Chicago Law School.


Next up is Allyson Ho. Allyson is co-chair of Gibson Dunn’s Appellate and Constitutional Law Practice Group. Allyson also served in the government as basically everybody. She was a special assistant to President George W. Bush and also counselor to Attorney General John Ashcroft. She is also a graduate of the University of Chicago Law School, and she clerked for Justice O’Connor.


Next in alphabetical order is Aaron Streett. Aaron is the chair of Baker Botts’ Supreme Court and Constitutional Law Practice. He is an elected member of the American Law Institute. Aaron is a graduate of the University of Texas School of Law and he clerked for Chief Justice Rehnquist -- the old CJR, not the current CJR.


And then, our last person is Misha Tseytlin. Misha is the chair of Troutman’s -- what’s awesome about this is we get to hear all the different names that people have given appellate groups -- he's the chair of Troutman and Sanders’s -- Troutman Pepper, sorry -- Appellate plus Supreme Court Practice Group. That’s literally what it says here. Misha is a graduate of Georgetown Law School and he clerked for Justice Kennedy. He was the former Solicitor General of the state of Wisconsin from 2015 to 2018, and he was also the general counsel to the West Virginia Attorney General from 2014 to 2015.


So what we’re going to try to do today is, of the ten cases, we’re going to cover seven in depth. Each of our speakers will address one or two of the cases. And then, after every discussion of the case, we’ll pause for a little discussion between the panelists. If those of you in the audience have a specific question about that particular case at that time, feel free to put it in the chat and if I see it and get to it, we can raise it and discuss it then. But then otherwise, once we get through all seven cases, I’ll quickly cover the last three, and then we’ll open the floor up to general discussion. So audience members, feel free to ask questions then as well. But again, don’t be shy about raising questions as we go, especially when we’re talking about a particular case. So with that, why don’t we turn first to the first case of the April sitting, Siegel. Allyson, take it away.


Allyson Newton Ho:  Thank you, Elbert. It’s just a privilege to be here for a Federalist Society event and, as Elbert said, to be in the company of such good friends. Thanks for having me. So I’m going to say a few words about Siegel v. Fitzgerald which presents the question whether a 2017 law that increases fees in some bankruptcy courts but not others, violates a provision of the Constitution’s Bankruptcy Clause that directs Congress to establish uniform laws on the subject of bankruptcy throughout the United States. And, as Elbert mentioned, this case will be first up. It will be argued next Monday on April 18th.


I don’t want to get too much in the weeds. Sorry for all of you bankruptcy lovers out there. I’ll just try to hit the high points. But in a nutshell, this case involves the constitutionality of a federal statute governing fees in large Chapter 11 bankruptcies. And, as I mentioned, the Bankruptcy Clause of the Constitution authorizes Congress to establish uniform laws on the subject of bankruptcies throughout the United States. Even so, Congress has divided the nation’s bankruptcy courts into two separate programs. 88 judicial districts operate under the US Trustee Program, while six judicial districts all in North Carolina and Alabama operate under the Bankruptcy Administrator Program. And, until the statute under challenge, each program imposed the same fees, the same quarterly fees on Chapter 11 debtors. But, in the Bankruptcy Judgeship Act of 2017, Congress adopted a five-year increase in quarterly fees paid only in US trustee districts -- increasing the maximum fee from $30,000 to $250,000 for all pending cases. That increase wasn’t imposed on the administrator districts until nine months later and it applied only to cases filed after that date. So at stake is roughly over a hundred-million-dollar difference in bankruptcy cases and Chapter 11 cases nationwide.


So, in the decision before the Court that’ll be argued next week, the Fourth Circuit joined the Fifth Circuit in upholding the constitutionality of the statute, while the Second Circuit has rejected those decisions and declared the 2017 act unconstitutional. Now I actually want to focus on the remedy question in the case because, if like me, you’re generally interested in constitutional litigation involving separation of powers, executive appointments, and the like, you know that very often in these cases the challengers may win on the merits but then come up very short on the remedy that they’re actually afforded. If you remember those T-shirts that used to say, “My parents went to Niagara Falls and all I got was this lousy T-shirt.” I think there ought to be a T-shirt that says, “I brought a landmark constitutional Separation of Powers or Appointments Clause challenge and all I got was this lousy T-shirt.”


And, in this case, the government is arguing that even if the challenger is successful, and even if the Court were to hold that the provision is unconstitutional, the remedy should be -- wait for it -- a declaration that the statute is unconstitutional. And by way of background, the Court has held that in cases like these, the remedy can be one that levels up which would involve refunds to those who overpaid, or one that levels down which would involve going after those who underpaid. And in this case, a level down remedy would entail serious practical consequences for already closed cases, tracking down litigants, and the like which may be why the government is taking its harm but no foul position with respect to remedy in this case.


As an amicus brief written by the Chamber of Commerce points out though, leveling up is generally the right course to take because it creates incentives to raise constitutional challenges in the first place. And that brief cites the landmark Lucia v. SEC case which involved a successful Appointments Clause challenge to the SEC’s administrative law judges. And so although this isn’t technically a separation of powers case, what the Court does on the question of remedy, should it reach that question, by holding the statute unconstitutional may have important implications for those cases as well.


Elbert Lin:  Thanks Allyson. Do any of our panelists have any other thoughts on Siegel? I have one question for you, Allyson. I’m not a bankruptcy expert by any stretch of the imagination, but uniform seems like it should be sort of an obvious and easy to understand term.


Allyson Newton Ho:  It does. Yes.


Elbert Lin:  And, of course, here there seems to be sort of two levels of disuniformity. One is the fees but antecedent to that is, I mean the reason they have different fees is because they’ve established these two different -- I don’t know what do they call them -- district systems of --


Allyson Newton Ho:  Programs.


Elbert Lin:  Yeah. Right where like, one system covers two states, and the other system covers 48. I mean, just superficially as someone who doesn’t do a lot of bankruptcy law, that doesn’t seem to be consistent with the concept of uniformity. I didn’t know if you had any thoughts on that.


Allyson Newton Ho:  No. No it doesn’t. And sort of consistent with that instinct, Elbert, my understanding, and I hasten to say that I am not a bankruptcy expert either, but my understanding of the history here is that the division into these two programs was not intended to be permanent. It was supposed to be temporary, and again, my understanding of the history is that it’s just one of those things where something was sort of tucked into a bill and now we have sort of this permanent rather odd system where you have 88 districts under one system and two under another. And again, I think it has not raised practical problems to date because for all intents and purposes, those two different programs function the same. So it really hasn’t been until this case where you just have an outright disparity in terms of the fees imposed that sort of the difference between them is highlighted in the way that it is here.


Elbert Lin:  Okay. Yeah. And I mean, I was glad you focused on the remedy issue because that does seem to me to be where all the action is going to be, right? And --


Allyson Newton Ho:  Yes.


Elbert Lin:  And there’s been some sharp disagreement on the Court over this question of remedy. So maybe we’ll get more guidance here.


Allyson Newton Ho:  Yes. Yes. And, like I said, I think that question will have ramifications far outside the bankruptcy context or the proper construction of the Bankruptcy Clause.


Elbert Lin:  Great. Okay. Thanks. So let’s move next to a case that will interest law and order addicts everywhere which is Vega. Misha, can you tell us about that case?


Misha Tseytlin:  So this case raises the question of whether you can sue a police officer for violating your rights under the Supreme Court’s decision in Miranda. And I think this case is along the line of a growing number of cases before this Court where the Court is dealing with how it can limit without overturning rights or remedies that the Warren Court or even the earlier Burger Court came up with without overturning landmark decisions but caveating them. We see this as the Court has been narrowing Humphrey’s Executor, has been narrowing Bivens.


So in this circumstance, the Miranda rule which obviously everyone knows you got to give a Miranda warnings before you engage in custodial interrogation, has a dubious constitutional foundation, and for a time it was thought that the Supreme Court would ultimately say that it wasn’t a constitutionally grounded rule. But then, somewhat famously in Dickerson, Chief Justice Rehnquist kind of surprised everyone by saying that Miranda was a constitutional rule. So if it’s a constitutional rule, why can’t somebody cover under Section 1983 for violation of that constitutional rule? That’s what the Ninth Circuit thought below.


What happened here was a kind of a standard Miranda violation. It was a suspicion of sexual assault. Officer takes the suspect in another room, questions him, doesn’t give the Miranda warnings. There’s a written confession and it’s introduced at trial. Now the individual here was acquitted, but after the acquittal, decided to bring a lawsuit under 1983 trying to recover damages from the police officer for violating the Miranda warnings. The constitutional rule claimed to underline Miranda. The Ninth Circuit, in the decision below held that well, Miranda is a constitutional rule according to Dickerson. So therefore, you could bring a lawsuit. Now, before the US Supreme Court, I guess somewhat surprisingly, the Biden administration ended up siding with the police officer, and their logic was that you only violate Miranda not when you question someone without giving them the Miranda warnings but when that evidence is admitted. And since the officer doesn’t cause the evidence to be admitted, rather the prosecutor and then judge does, the officer can’t violate Miranda in the way that Section 1983 would allow the officer to be sued.


So what the respondent did is -- abandoning kind of the theory below and the jury structures, and basically saying, Court add a new element. If the police officer both violates Miranda and then basically lies to the prosecutor about violating Miranda thus proximately causing the confession to be admitted, then even under the United States logic, then the officer will have in some ways violated Section 1983 and can be sued. Now, of course, the petitioners say, “Well, this is changing your theory of the case too late. That’s not what the jury instructions are, and in any event this doesn’t even work. Miranda is of dubious constitutional province and in any event, it’s still the Court and the prosecutor admitting this evidence, not the officer.”


So again, I think it’s probable that the petitioner will win, and the Ninth Circuit will be overturned. I think the real question is going to be, on the one extreme, a serious cutting back on Dickerson and saying Miranda is not a constitutional rule after all. It’s just a remedy like the exclusionary rule. Or they’re going to take the middle ground position of the United States and say, “Well, the officer doesn’t submit the evidence, and so there’s no violation here.” Or they’ll say, “Well, yes. You can bring the lawsuit, but you need this additional element -- which the respondent floated -- which was that the officer, beyond not giving the Miranda warnings, also lied to the prosecutor thus proximately causing the prosecutor to seek to have the evidence improperly admitted. I think those are the three most likely outcomes in this case.


Elbert Lin:  Misha, did it surprise you at all that the government took the position that Miranda is a constitutional rule as opposed to like, just a, like the exclusionary rule, just sort of a prophylactic rule?


Misha Tseytlin:  I mean, it didn’t because I think Dickerson kind of just establishes that. I mean, I think in order to cut back on that you would have to overrule Dickerson. And if I recall, in Dickerson there was actually a federal statute that had tried to override Miranda. And in order to not have the federal statute make Miranda meaningless with regard to the feds, Supreme Court had to hold that Miranda was a constitutional rule, constitutionally grounded, and I think Renquist chose his terms very carefully there. So I think I wasn’t surprised by that. I was a little surprised by the administration’s filing on the side of the petitioners. I thought that they would find a way to support, at least to some extent, the Ninth Circuit. That did surprise me a little bit.


Aaron M. Streett:  Elbert, since I heard Dickerson and chief Justice Renquist invoked, I thought I would jump in --


Elbert Lin:  Yeah. Please.


Aaron M. Streett:  -- since he was my old boss. And I think the only slight qualification I would give to what Misha said is that I don’t think the Court actually has to cut back on Dickerson to rule for the police officer here because I think a careful reading of Dickerson, it certainly held that Miranda is a constitutional rule, but it very carefully circumscribed the scope of that rule. And I think the fairest reading of it is that it is a right that only becomes violated when the unmirandized statement is introduced at trial. And several cases since Dickerson have reaffirmed that narrow reading. So I think that will just be consistent with Dickerson, and I think maybe that will lead to some appreciation that the chief was actually writing that opinion very carefully, and the alternative was the case going the other was since it ended up being a 7-2 vote. So I think that’ll be the right way to go. The only other interesting note on that case is, if you win in the Ninth Circuit, the first thing you seem to do is abandon the Ninth Circuit’s reasoning and try to come up with some sounder basis for winning. I just think that’s a recurring theme in the Supreme Court these days.


Elbert Lin:  Yeah. No. That’s an interesting -- in both humorous but interesting comment. And another one that will come up later when Noel talks about Kennedy is the increasing frequency with which respondents claim that cases are moot to try to get out from under a case where cert’s been granted. Misha, I had one more question. I mean, this sort of new theory that the respondents have come up with in Vega, is it -- just to see if I understood it correctly -- is it a question of Miranda and the causation that’s required for violation or are they actually asking to change how 1983 causes of action are assessed? Like, would this affect basically every 1983 case?


Misha Tseytlin:   No. I don’t think so. I mean, I think Aaron correctly articulated the Dickerson framework and the cases falling on Dickerson. That’s where the Biden administration was. And what the respondents are doing I think is kind of trying to work their way around that saying, “Sure. Sure. It’s only violated when it’s introduced.” But if you’re the officer that proximately causes it to be introduced, you’re the logical person to be sued. So there’s a little bit of a desperate gambit, but that’s how I see it. And I certainly understand why the chief decided to take over the opinion in Dickerson to narrow its reasoning although I will say it’s still not the best decision that he ever wrote.


Elbert Lin:  And on that note, let’s go to Aaron. Aaron’s going to talk about Shoop, a habeas case where -- if you want to read an interesting amicus brief, you should read the one led by the state of Utah where I think they claim that people will -- that the Court needs to act immediately to prevent death and injury from occurring on a widespread basis. Anyway, I’ll hand it over to you, Aaron.


Aaron M. Streett:  Thanks, Elbert. And I also join in being delighted in being a part of this distinguished panel and to be able to discuss the Supreme Court with good friends and very knowledgeable lawyers. So my case is Shoop v. Twyford. Twyford, the respondent, is an inmate on death row in Ohio. He had exhausted his state habeas efforts and was in the midst of very lengthy federal habeas litigation. He asked the district court to order that the warden of the prison provide him transportation to a medical facility so that he could undergo a brain scan which he thought would aid his federal habeas efforts by showing childhood abuse or head trauma that he suffered as a younger man. The district court agreed with that request and the Sixth Circuit affirmed in a divided decision by Judge Moore with Judge Batchelder dissenting.


The case really turns on the All Writs Act which says that courts may issue writs that are necessary and appropriate in aid of their jurisdictions and agreeable to the usages and principles of law. The state here, the state of Ohio argues that this type of a transportation order is not available under the All Writs Act, that it fails both of the tests within the text of the All Writs Act. First of all, the state notes that there the Federal Habeas Statute section 2241 specifically addresses transportation orders of a prisoner and allows them only to bring the prisoner to court to testify or to be a part of a hearing. And the state also argues that the writ here doesn’t resemble any other type of writ that was available at common law. So the key argument there is that the All Writs Act shouldn’t just be an all in one tool for a federal district judge to end run the Habeas Statute.


The second point that the state makes is that this transportation order in this case is not necessary and appropriate in aid of the district court’s habeas jurisdiction because Twyford hasn’t shown how this brain scan will facilitate evidence that could entitle him to relief on his habeas case. And the key point there is really that he has not raised this evidence on state habeas. So under the EDPA Statute, there’s no basis for him to admit it on federal habeas. So whatever the brain scan turns up, it seems like a procedural dead end for Twyford. He also didn’t go much beyond generalities in explaining how the evidence could lead to relief on any of his particular claims of habeas. The state of Ohio, I think, a point echoed in Utah’s brief, sums it up this way, “The Sixth Circuit’s standard is dangerous. If allowed to stand it will require states to bring dangerous criminals to public settings so that they may collect irrelevant unusable evidence.”


Now for his part, Twyford emphasizes the broad district court’s discretion to make decisions on the facts of the case. But first of all, he offers the court an offramp. Again, you prevail on the Sixth Circuit, maybe you try to find an offramp, so the court doesn’t necessarily have to address the order. And the argument there is not a bad one. He argues that there’s no appellate jurisdiction here because the transportation order is not a final order. It’s more like a discovery ruling which are not appealable. And it’s not covered by the narrow Collateral Order Doctrine that allows appeals of a few types of non-final orders. Now the problem there, of course, is the Court probably wouldn’t have granted cert if it thought it didn’t have appellate jurisdiction. Since it granted the state’s petition to grant the state’s issues, it probably wouldn’t have granted cert only to turn around and dismiss for lack of appellate jurisdiction.


On the merits, Twyford argues that the state is wrong to focus on the Habeas Statute’s limited authorization of prisoner transportation. He essentially argues that there are other prongs of the Habeas Statute that are more relevant and that could be a basis for using the All Writs Act to allow the transportation. He also points out that the Supreme Court has already allowed, in some respects, prisoner transportation for reasons outside of strictly bringing the prisoner to court to testify or attend a hearing. On the second issue, Twyford argues that the Court did not need to demand specific explanations about how Twyford could use the brain scan evidence in his habeas proceedings.


He also argues with a strong appeal to district court discretion that, while he concedes that in many cases it might make sense to determine whether the prisoner could actually use the evidence under EDPA and federal habeas, but here he argues that it was within the district court’s discretion to proceed where its unclear what type of evidence the scan might turn up and how that might perhaps be justifiably admissible under EDPA principles depending on what the scan reveals. I think this last point is Twyford’s weakest point. It was the point on which Judge Batchelder focused her dissent, and it’s also the point on which the Solicitor General agrees with the state in her amicus brief. The Solicitor General actually agrees with the respondent on the points regarding the All Writs Act and how it interacts with the Habeas Statute, but the SG agrees that there should be some inquiry into whether the evidence would be admissible under EDPA.


So the SG advocates for vacated remand for the Court to make that sort of analysis, and I think its potentially a place where the Court can land. The Court’s been pretty consistent. The Court’s conservatives, at least, over the years have been consistent on drawing firm lines on deference, the state court proceedings and not allowing end runs on state habeas through EDPA. And it’s hard to imagine the Court allowing prisoners to go on fishing expeditions without some showing of how the evidence could ultimately be admitted and help their case.


Elbert Lin:  Aaron, do you think this is going to be ultimately more of an All Writs Act precedent or more of an EDPA precedent? I can’t remember when the last All Writs Act case was from the Court, but it certainly is the kind of statute where we could use a little bit more guidance from the Court as to when it does and does not apply.


Aaron M Streett:  The parties are fighting over pretty old All Writs Act cases for the most part. There are a few more recent ones. I wouldn’t be surprised if we get some guidance on the All Writs Act. I suppose it’s possible the Court could dodge that question and just go for a 9-0 vacated remand to allow the district court to do an EDPA analysis on whether the evidence would be admissible but that seems like a pretty egregious dodge even for April argument sitting.


Elbert Lin:  I mean, I’m pretty sure the All Writs Act is Misha’s favorite federal statute so --


Noel J. Francisco:  We liked it when I was SG too.


Elbert Lin:  I mean, it’s the vessel into which you can pour your greatest hopes and dreams, right?


Noel J. Francisco:  It is.


Elbert Lin:  Anyone else have any thoughts on Shoop? All right. Well, if not then, let’s turn to General Francisco for one of the two, I would think, kind of blockbuster cases of the April sitting, Kennedy v. Bremerton school district, sometimes referred to as the praying football coach case.


Noel J. Francisco:  Yeah, or the Coach Kennedy case. Thanks a lot, Elbert. I’m going to apologize in advance. I’m fighting some pretty bad allergies, so it may get in the way of some of my comments. But this is one of the more high-profile cases that the Court has this term and certainly this sitting, and it’s a really fascinating case. It’s got a complicated procedural and factual history including two trips through the Ninth Circuit that resulted in opinions either authored or joined by, as far as I can tell, virtually every conservative judge on that court as well as a prior trip to the Supreme Court where they denied cert but it prompted a separate opinion by Justice Alito joined by Justices Thomas, Gorsuch, and Kavanaugh noting their deep skepticism of the analysis that had been adopted by the Ninth Circuit its first time through that court.


At heart, the case is about whether Coach Kennedy, first, has a free speech or a free exercise right to say a prayer on the 50-yard line of the football field after the game is over, and second, whether that prayer violates the Establishment Clause. And so it’s one of these cases where you really -- where it does really bring to the fore the tension that has resulted from a lot of the Supreme Court’s jurisprudence in these related areas. On the one hand, the free exercise laws, to a certain extent, requires favoritism of religion and, on the other hand, as interpreted by the Court, the Establishment Clause prohibits governments from appearing to endorse religion. And it’s hard to see how you can honor the Free Exercise Clause’s commitment without running into -- straight into some of the Court’s jurisprudence on the Establishment Clause side of the line.


Just as it’s got a -- this case has a complicated procedural history; it’s got a pretty complicated factual history too. Initially Coach Kennedy had for, as far as I can tell, quite a long period of time, been leading prayers at the 50-yard line after the football game was over, and that often included a lot of his players and others. The school apparently didn’t know about it for some period of time which is a little surprising but, in any event, when it found out about it, it told him that he had to stop. And he did in fact stop for a while, but then had really thought about it and felt that stopping was dishonoring his religious beliefs. And so he decided that he had to resume again. And the key facts in this case really surround his resumption of the prayers after the school had told him to stop. He’d stopped and then decided he had to start praying again.


In particular, when he decided he was going to start, he announced it. And he told the school and frankly the world that at the next football game he was going to resume his practice of praying on the 50-yard line after the game was over, and he did so. According to the school at least, when he engaged in that prayer, he was joined by a lot of players, a lot of spectators, a state legislature. And it turned into, again according to the school, a fairly chaotic event. The school then sent him a letter prohibiting -- and this is a quote from the letter, “Any demonstrative religious activity readily observable to students and the attending public.” A pretty darn broad prohibition. After that, he then proceeded to pray at two more games. At the first one, he gave a lone silent prayer on the 50-yard line after the game was over -- not much fan fair. Then, at an away game, he gave another prayer on the 50-yard line after the game was over, and at that he was apparently joined by his state legislature and a few others. And after that, the school put him on administrative leave. Thereafter, he never came back off of administrative leave and just left the position. And Elbert, that may be the justiciability issue that you were referring to earlier.

So it gets up to the Ninth Circuit on the second trip. And the Ninth Circuit basically held two things, both issues of which are now before the Court. The first thing that it said was that the coach was on duty when he said the prayers, and therefore the prayers were “government speech.” And as government speech, the school had the authority to dictate what could and couldn’t be said. Think of a school curriculum. If a school says, “I want to teach subject x but not subject y,” a teacher doesn’t have a right to teach subject y because the curriculum is in fact the school’s speech and the teacher is just a mouthpiece for the school in transmitting that curriculum. So the issue before the Ninth Circuit is, is praying after the football game is over essentially like the coach engaging in official coaching activities or official teaching activities such that it’s necessarily attributed to the school as a form of governmental speech. That’s the first issue.


The second issue that the Ninth Circuit addressed was that it assumed that this was in fact not governmental speech, for the sake of argument, it assumed that it was private speech. And it held that the school could, even on that assumption, prohibit that private speech in order to avoid an Establishment Clause violation because given the context of the speech, there was, according to the Ninth Circuit, too much of a risk that even that admittedly concededly private speech would be attributed to the school and therefore make it look like the school was endorsing the religious activity. So that’s essentially where the case sits when it reaches the Supreme Court. I think there’s a lot that you can say about the Ninth Circuit’s reasoning in this case, but to be fair, I think a lot of it reflects that the Supreme Court’s own doctrines in this area are a little bit muddy and have a lot of play in the joints to go in different directions. So I’m really hopeful that the Court is going to use this case to clarify some of the doctrines.


Start with the government speech issue. Whether or not something is government speech and, if it is, whether or not governments can prohibit it is subject to a notoriously difficult to apply multi factor balancing test that the Court has set out in different cases. And once you get into all those factors, you can pretty much get to the results that you want. But if you take a step back, it really can’t be that anything that a teacher or a coach says while they’re on the clock necessarily amounts to governmental speech. Otherwise you could, for example, prohibit a teacher from -- when they’re sitting in the cafeteria doing their cafeteria duty and about to eat their lunch, you could arguably prohibit the teacher from putting their head down, saying a silent prayer before eating their lunch because that would be some kind of public display of religion that would constitute government speech.


So there’s got to be some kind of line, even assuming the person is on the clock, between what constitutes speech made in the course of your official responsibilities and speech that, while you’re on the clock, is nonetheless not fairly attributable to the government. And one very easy line to draw is, are you actually performing the duties that you were hired to perform, or are you not? And for a coach, it would seem that if you’re calling plays, if you’re in the huddle with the team, or you’re instructing them on how to play football, then you’re actually expressing the views of the school district or on behalf of the school district. But once the game is over, your duties as a coach are done. And once the game is over, if you walk out onto the 50-yard line, put your knee to the ground, and say a silent prayer, quite arguably at that point, you can’t really be reasonably thought to be speaking on behalf of the government. But that’s the difficult issue on the government speech question.


When you turn to the Establishment Clause side, the Supreme Court’s precedent is just as murky. It’s yet to formally abandon the so-called lemon test. And so many of their cases just seem to turn on very detailed fact specific analysis of a particular case to see if there’s some kind of endorsement of religion or if there’s too much religion or if there’s a secular understanding of otherwise religious speech. But again, if you take a step back, it’s quite clear from the Supreme Court’s cases that even government religious speech doesn’t always violate the Establishment Clause. They’ve upheld official government religious statements in certain contexts.


So remember, on this issue, this is one where the Ninth Circuit assumed that the coach was no longer engaging in government speech but was engaging in private speech. If the government can often speak religiously without running afoul of the Establishment Clause, it’s kind of hard to see how private speech, on the assumption that its private, could itself violate the Establishment Clause on the theory that somehow, it’s going to be attributable to the government because remember there’s a very easy way for the government to avoid that attribution. It can just disclaim it. That’s what the Supreme Court often says in contexts like this. The answer to speech is more speech. And if you can clarify that there ought not to be any attribution to a governmental entity, that should be enough to solve the problem.


That being said, I’ve been working with the Caruso Law School at Pepperdine University on their Religious Law Clinic, and we filed a brief in this case that I think articulates a cleaner rule that the Court could go with if it really wanted to clean up this area of law. If you look at the original understanding of the Establishment Clause, it was really aimed at prohibiting governmental coercion. You couldn’t tax people because they didn’t go to church. You couldn’t tax people to raise revenue for church. You couldn’t punish people with fines if they decided not to go to church. And it’s that coercive element that is what really ran afoul of the Establishment Clause. The Supreme Court has long pushed Establishment Clause jurisprudence towards that core governmental punitive type of coercion but nonetheless, there is a line that you can draw that just says, “It’s okay for the government to speak religiously, even to endorse religion, as long as it’s not engaging in some kind of coercive effort to get people to engage in religious activities.”


If you look back at the Lee v. Weisman case, there are a lot of folks that are critical of that decision. But even in Lee v. Weisman, Justice Kennedy seemed to be leaning towards this coercion test where students actually felt compelled to participate in a school led prayer. So at the very least, you could adopt a line in a case like this where you ask, “Is Coach Kennedy somehow trying to coerce students into joining him in those types of prayer?” And if he was, for example, by threatening to not give them as much playing time or anything like that then, arguably, he would have crossed that line. But that kind of coercion test, I think, would be a much more administrable doctrine than what we’ve seen up until now. And that’s the position we take in our amicus briefs.


So what’s the Court going to do in this case? Look, I’ve long given up making predictions on how the Supreme Court is going to decide any particular case. But they usually don’t take a case like this, at least this court doesn’t usually take a case like this, in order to cut back on its religious liberty jurisprudence. So I suspect we’re going to see some kind of win in favor of the coach. The real question is how broad is it going to be? Are they going to stick to the sort of fact specific win? Are they going to make some major doctrinal innovations in the area? And are they actually going to deliver a clear victory? Or are they going to sort of redefine the law and send it back to the lower courts to apply that law to a pretty complicated set of facts?


Elbert Lin:  Thanks Noel. I know others on here -- Allyson, Aaron, and Misha all have done religious liberty cases. Did you guys have any thoughts? I have a handful of questions, but why don’t you guys go first if you have anything.


Misha Tseytlin:  Well, so I was going to ask, other than adopting kind of a coercion only test, what other plausible significant innovations could come out of this case in terms of what’s in dispute, what are amicus saying, things of that sort?


Noel J. Francisco:  Allyson, chime in if you have any thoughts on this. But there are different ways they could go. They could do the sort of historical analysis that you saw with legislative prayer. And they look back and they say, “As a historical matter, have we allowed teachers coaches and the like to engage in this kind of prayerful activity?” I have not done that historical analysis myself. I suspect that there is a fair amount of historical support for that. Maybe they could try to tighten up the endorsement test on the Establishment Clause side by just making clear that there’s never an endorsement of private speech if the governmental entity can take the simple action of disclaiming any endorsement. So that would at least clean up a lot of claims involving teacher or government employee speech that the government fears is going to be attributed to them. I think that the coercion test is probably the easiest and most historically grounded one. The other ones seem to me, they make sense, but you’re really just trying to impose limits on a bad doctrine in order to clean up the problem you’ve already made instead of trying to push it back to something that resembles what the Constitution was meant to say in the first place.


Aaron M. Streett:  Seems like what makes this case tricky is, of course, not writing on a blank slate when it comes to school prayer. And it comes in an interesting place on the arc of school prayer cases. Of course you start off with Engel v. Vitale. You’ve got a teacher clearly speaking for the government. Then you’ve got Lee v. Weisman as you mentioned -- not a governmental speaker, a rabbi invited to speak -- but a graduation ceremony where there’s arguably coercion and governmental indicia. Then you’ve got Santa Fe v. Doe which is I guess probably the hardest case for Coach Kennedy, where you’ve got the students praying before the game over a loudspeaker. So clearly not school officials, but the Court at least thought the speech was in some way attributable to the school. And then, with Coach Kennedy, you’ve got a school employee, but you have a lot of factors showing that he’s not speaking on behalf of the school and certainly not, or at least doesn’t seem to be coercing anybody. So it’s tough, I think, perhaps to use coercion to get around Santa Fe because, as I recalled, I don’t think the Court relied much on coercion in that case. It seemed to rely more on endorsement.


Noel J. Francisco:  And I think that, in a lot of their cases, they haven’t relied on coercion. There was an element in Lee against Weisman, but I think that this would be an innovation beyond the other cases. And yeah, you’d have to deal with those other cases. It’s possible that you just get a very fact specific decision about Coach Kennedy, but given the make up of this court, I don’t know. I think that there are a lot of them that really want to try to clean up a doctrine that has, over the years, evolved into something that’s becoming somewhat unmanageable.


Allyson Newton Ho:  Yeah. I’ll just add, and I’ll pick up, Noel, on your point about the fact-based nature of a lot of these cases. And it does sort of feel like, to a lot of us who labor in these fields, that this is almost an era of error correction by the Court where you get decision after decision where the turn on sort of fine facts or distinctions. But I too share some of the disappointment about we’d love doctrine to be clarified, we’d love an area of the law that has been sort of notoriously muddled or outright maligned as the lemon test has been for decades. Correcting these errors is just so important that it matters. It matters that the Bladensburg peace cross stands. Even though we may not get the clarity of doctrine that, again, those of us who labor in these fields would really appreciate going forward, I think for the Court to take these cases and correct some of the errors that we see out there is important in and of itself.


Noel J. Francisco:  Well, and I almost think you owe it to a lot of these schools. If you look at Judge Ikuta’s good opinion for the Ninth Circuit, I mean, she notes quite understandably the predicament that this school was in. I don’t get the sense that the school was out to get Coach Kennedy. They were trying to figure out what they were allowed to do and not to do under a very murky area of law. Now I happen to think that they probably got it wrong. But you have to have sympathy for some of these institutions that are really just trying to figure out what their obligations are in the absence of any Supreme Court case law that gives them -- or even lower court case law -- that gives them clear guidance.


Aaron M. Streett:  And one other interesting thing that strikes me -- I think this is the first case in the Establishment Clause arena that is post Ginsburg. And so we have -- we’ve had a balanced shift on the Court since the Bladensburg case where the Court clarified the law a little bit, but it was still a fairly muddled set of opinions. And so now, we’ll see with a seemingly more solid block of originalists whether the Court can correct the theory or if it sticks with a case specific approach.


Elbert Lin:  So just two other comments. One, Noel, on the mootness thing that I was mentioning, I guess there’s some dispute -- well it’s not a dispute -- I guess Coach Kennedy has moved out of the area or the state. And the reason for that was to take care of an ailing relative. But, of course, he expresses that he’s perfectly willing to come back and resume his responsibilities. So that’s their response to the mootness. But it is -- I don’t know. It’s interesting to me. There’s this case. There’s another one involving a Washington state law that was repealed where they’re arguing mootness as well. I mean, you see sort of more and more often respondents, perhaps in cases where they see the writing on the wall in that they’re looking for another way out once cert is granted.


Noel J. Francisco:  Yeah. I’m not going to claim to be deeply familiar with the mootness issue. I’m not. I’m not sure if he’s only seeking injunctive relief that that could be an issue. If he’s got some kind of argument for back pay, then that would solve the mootness problem. I don’t know. Maybe the other panelists are more familiar with that issue than I am, or maybe not.


Elbert Lin:  Yeah. And the other thing, just in reading over the briefs, is just -- and Noel, you noted this -- the complicated nature of the facts, and the sort of continued dispute over what happened.


Noel J. Francisco:  Yeah.


Elbert Lin:  I mean, you read the respondents brief and they seem to -- it’s probably part of their strategy -- to tell a totally different story about what happened here. They even proposed their own “actual QPs.”


Noel J. Francisco:  Yeah. Well, and that’s what I tried to focus on because it really does seem like -- there were a lot of things that happened over time -- but it seems like it’s pretty clear that the reason he was put on administrative leave was because of what he did in the period where he resumed his prayers after a period of stopping them. That’s the reason they put him on administrative leave. So it seems to me that those are the key facts in adjudicating the case and within that brief window, there were only three games at issue. There was the first game where he announced it, and there was a lot of media fanfare around it. And as the school described, it was pretty chaotic. But then the school told him not to do that -- not to do any kind of public prayer. And then he did, in the second and third games, engage in much more low key more private prayers after the game was over. I mean, on the 50-yard line. So I say private, I mean quiet and personal prayers.


Elbert Lin:  Yeah. This will be a super interesting one. All right. Well, thanks everyone. So we’ve got three other cases. Let’s move on to Misha who can tell us about the next chapter in Oklahoma having half of it going back to becoming Indian reservation.


Misha Tseytlin:  So earlier I talked about how a lot of what some of the Court is doing in various areas of law is trying to cut back on erroneous decisions that were -- or arguably erroneous decisions that were made by the Warren court or the earlier Burger court. This one involves the Supreme Court perhaps trying to cut back on an erroneous decision made by the Gorsuch Court. In McGirt, Justice Gorsuch, joined by the liberals on the Court determined that half of Oklahoma is native territory. So Oklahoma didn’t have various kinds of authorities in that land. So Oklahoma since then has been doing everything it can with the change in the composition in the Court to get McGirt overturned at the Supreme Court. That is what happened in this case where they went to the US Supreme Court with two questions presented. One, overturn McGirt. Two, whether a state has authority to prosecute defendants who are not Native Americans but who commit crimes against Native Americans on native land.


So the Supreme Court did not grant review on the first question -- or it was the second question -- did not grant review on the overturn McGirt question. And it granted review on this other question which is subsidiary to McGirt which is assuming McGirt is correct. So half of Oklahoma -- or whatever, two fifths of Oklahoma is native territory. Where if you have a non-native person commit a crime against a native person on Native American land, whether the state can prosecute that individual. And in this case, you had a non-Native American person engage in criminal child neglect over a stepdaughter who was a Native American. And so the Oklahoma prosecuted him and, in light of McGirt, his prosecution could not go forward according to the intermediate courts in Oklahoma. So they brought this case up to the US Supreme Court.


Now it seems, at least from a brief perusal of the papers here, that by not taking the opportunity to overrule McGirt, the Supreme Court has put itself in a position where it either will affirm this consequence of McGirt that if you are a non-native person in two fifths of Oklahoma and you commit a crime against a native person, you can’t be prosecuted by the state of Oklahoma. You could either be prosecuted by the feds or by native jurisdictions or they’re going to have to overturn a lot more than McGirt because obviously McGirt comes up when the circumstance where the US Supreme Court, in a surprising decision to many people, had this drastic consequence for the state of Oklahoma. But, of course, there are many, many undisputed native lands within our nation’s borders. And, as far as I can tell from the briefing, and I haven’t gone to look at the underlying sources, but it seems that it has been pretty clearly established for at least 70, 80 years under federal statutes and Supreme Court interpretations that, if what happened here happened on uncontroversial native land, that the state would not be able to prosecute, and that only the feds and the native authorities would be able to prosecute. So if the Supreme Court wants to cut back on McGirt here, it won’t be able to do like it could do by cutting back on Dickerson or something else in the case we discussed earlier or cutting back on Bivens. It’s going to have to have a much more drastic change in the relationship between states and native jurisdictions and Congress overturning potentially 80 years of precedent and making a lot of federal law on this seem confused at best.


Now, of course, the Supreme Court took this case. So it seems odd that they would take the case just to affirm this long-standing rule and then not take the case to overturn McGirt. On the other hand, it does seem like a very drastic consequence and also a little bit backwards to overturn many more years of precedent and have much more disruptive consequences when the most direct path would have been to go after McGirt. So I don’t have any great prediction on this because these arrows are pointing in opposite directions, but it is a little strange.


Elbert Lin:  So just to give our audience members a little bit of background before I ask you a question, Misha, I mean, the change in the Court that you’re referring to is, of course, McGirt was decided when Justice Ginsburg was on the Court, and it was 5-4. And, of course, now Ginsburg has been replaced by Justice Barrett. So you would think that you’ve got a puncher’s chance at a shift in the majorities. Are you surprised that they didn’t -- I mean, obviously it’s only been a couple years and the chief has strong views about overturning precedent so quickly, and he would have to vote, right? He would have to maintain the position that he had in McGirt which was in the dissent to sort of join the majority here at overturning McGirt. But maybe given that, I mean, are you surprised that they didn’t just sort of go for the throat on McGirt?


Misha Tseytlin:  I mean, it would be pretty offensive to Justice Gorsuch to really put it in his eye like that so soon thereafter. I mean, it is true that stare decisis often looks at the longevity of the precedent as an important consideration. But as a practical matter, it’s a bad look for --because it’s not a situation where McGirt was building upon a body of law that is questionable. I mean, it was a big decision decided 5-4. The battle lines were clear, and it would just be too obvious about the change of personnel in a very stark way, not like abortion where it’s been over many decades, but just like we’ve got this bull to the blue decision, we’ve got a new justice, we’ve got a new approach. I mean, I certainly understand why Oklahoma took this approach. They hired Kannon Shanmugam to take this approach. Obviously, you don’t shell out this kind of money when you’ve got an excellent Solicitor General, unless you’re going for something really, really big. They took a shot at it. The Supreme Court pointedly refused to grant on QP2. So here we are.


Elbert Lin:  Yeah. So says the former state Solicitor General.


Misha Tseytlin:  That’s right, General. I used to work for Elbert when he was Solicitor General of West Virginia. That’s the back and forth there.


Elbert Lin:  Work for is one way to put it. Torment may be another way to put it. All right. So we’re at 4:03. We’ve got two more cases to get through before we run out of our 90 minutes. So why don’t we go to Allyson to talk about Kemp v. United States. It’s a civil procedure case involving a split that’s been in existence for a very long time.


Allyson Newton Ho:  Yeah. Thanks, Elbert. So the next case that we’re going to talk about is Kemp v. United States. And this is one for all you civ pro and statutory construction nerds out there of which I’m happy and proud to count myself among y’all. And it will be argued next Tuesday, April 19th. And, at the heart of this case is the proper construction of federal rule of civil procedure 60B which allows litigants to seek relief from final judgements based on various kinds of errors by district courts. The specific question at issue is which part of rule 60B applies where the district court didn’t follow the operative rule for calculating a filing deadline and incorrectly deemed a critical filing untimely. And the parties in the case agree that the subsections of rule 60B covering such things as newly discovered evidence, fraud, void judgements, and intervening developments that render the original judgement a nullity don’t apply in these circumstances.


So the dispute is over which of the remaining two subsections of the rule should apply. Rule 60B6 which is the catch all provision that covers basically any other reason that justifies relief that doesn’t fit within Rule 60B1-5 or Rule 60B1 which covers mistakes. So why does it matter, you might ask, as long as both parties agree that at least one of those provisions applies? And the answer is that rule 60B1 has a one-year time limit while rule 60B6 does not. And so the petitioner in this case filed his motion 21 months after the judgement he’s trying to reopen. So if rule 60B1 governs as the government argues, his motion was untimely. The petitioner argues though that rule 60B1 doesn’t apply because it’s limited to, and the phrase is, “Mistake, inadvertence, surprise, or excusable neglect,” which petitioner argues is a long-standing historical term of art that excludes legal errors. Instead, the petitioner argues legal errors that are apparent from the phase of the Courts opinion or order fit within the catch all provision of rule 60B6 and litigants relying on that provision aren’t subject to rule 60B1’s time limit.


In addition to focusing on the history of the rule, the petitioner relies on textual and contextual clues to argue that a mistake under rule 60B1 is not a legal error. For one thing, the petitioner points out, an adjacent provision rule 60A uses the term mistake to refer to nonlegal errors. And, for another thing, the petitioner argues the three defects accompanying mistake in rule 60B1 inadvertence surprise or excusable neglect undisputedly exclude legal errors. Further the petitioner points out that rule 60B groups 60B1 with two other provisions that set out a one-year filing deadline for all three of those provisions and those other provisions cover fact bound nonlegal errors.


The government and the Court below, in contrast, interpret mistake in rule 60B1 to apply broadly and encompass all manner of legal error. A construction that the petitioner objects would cannibalize much of the rest of the rule and lead to other similarly unfortunate or absurd results. And the Court’s decision in this case will not only be one of great practical importance in federal courts and litigants alike given the ubiquity of rule 60B motions, but I think it will also be interesting in terms of textualism and statutory construction and the roles played in textualism by canons of construction, dictionaries, structure, and context in that endeavor. It may be that we’re all textualists now but, just as with originalism, that doesn’t mean that there won’t be vigorous debates even between textualists who share the same understanding of that enterprise, not to mention self-described textualists who may not share that same understanding. So I think its an interesting case, and that it’s really a very practical case that whichever way the Court ends up going will have a lot of practical implications. But it's also just an interesting case from the standpoint of textualism and statutory construction to see how the Court approaches the construction of the various categories set out in the rule.


Elbert Lin:  Thanks, Allyson. Yeah. No. The whole 59, 60 thing, for those of us who litigate in the district courts, is often a morass so --


Allyson Newton Ho:  Yes. Yes, and that’s one of the petitioner’s arguments is that under the government’s construction you actually sort of -- it does an end run around that. And I think that’s probably one of the most serious practical interpretations of the government’s interpretation that that petitioner focuses on.


Elbert Lin:  Great. Thanks. So that brings us to our last case which I think is the second high profile case of the April sitting and that’s Biden v. Texas. Aaron?


Aaron M. Streett:   Great. I’ll try to keep this as concise as possible, so we have time for discussion and Q-and-A. We all know that whenever a new administration takes office, it often moves to repeal policies of the previous administration that the new administration believes to be unlawful or simply bad policy. But this case presents the next chapter in the Court’s ongoing saga examining how new administrations may legally repeal the regulatory policies of the previous administration. Now, of course, generally speaking the administration is free to repeal an old regulatory policy, but it has to be consistent with the statute. And the administration has to comply with the Administrative Procedure Act.


We all remember the case in which President Trump attempted to undo the DACA program -- Deferred Action for Childhood Arrivals -- that President Obama had put into place. And the Supreme Court held in the Department of Homeland Security v. Regents that the Trump administration had violated the APA in its repeal and replace of DACA. And essentially, the Court there held that what the Trump administration did was probably consistent with the statute, but the administration failed procedurally to take into account the reliance interests of the individuals who were benefitted by DACA and failed to rationally consider and explain its approach to alternatives to complete repeal of DACA.


So here we have the Trump version in what I call the sauce for the goose case. We have the Trump administration put into place the migrant protection protocols or MPP, often known in the media, popularly known as the remain in Mexico policy. And essentially, what that policy did is for individuals arriving by land at the Mexican border, the administration would require them to remain in Mexico while their removal proceedings were being processed. The previous practice had been largely to parole these individuals into the United States where they would ostensibly wait and then attend their removal proceedings. Well, when the Biden administration took office, it quickly moved to repeal MPP. And Texas and Missouri just as quickly challenged the repeal in the northern district of Texas. In an opinion by Judge Kascmaryk, the Court vacated the MPP repeal and issued a nationwide injunction requiring the Biden administration to maintain the MPP program until it was lawfully repealed.


So the Courts below saw two problems with the administrations repeal of MPP. First, the Administrative Procedures Act, and much like in the DACA case, the Courts held that DHS had failed to consider the reliance interests of the states. The states asserted that they relied on MPP to protect from the costs and other burdens imposed by having the aliens paroled into their states. And the Court held that DHS failed to analyze and adequately respond to those interests as well as some other arguments raised by the states during the rule making process. That part of the opinion very much tracked the DHS v. Regents analysis. The second and more central issue is that the district court held that the MPP repeal violated the Immigration and Nationality Act provision which, according to the Court, requires DHS to detain all aliens who arrive at the border essentially -- eliminates the ability to parole individuals unless -- well, essentially eliminates the ability of the administration to parole individuals pending removal with very narrow exceptions.


So as the district court read the statute, DHS cannot repeal MPP until it has the capacity to detain all those aliens that are seeking entry. And, of course, the Trump administration’s rational is we don’t have that ability right now, therefore we’re going to require them to remain in Mexico pending removal proceedings. Fifth Circuit affirmed in a very thorough opinion by Judge Oldham, and while the appeal was pending, two things happened. First of all, the government sought emergency relief in the US Supreme Court seeking a stay of the injunction issued by the district court. The Supreme Court denied that emergency application by 6-3 vote -- six conservatives -- with the Court essentially issuing a one paragraph order that said, “We think the states will prevail under the APA and under the principles of DHS v. Regents,” the DACA case.


The second important development during the appeal is that the DHS took up the remand from the district court. While the appeal was pending, the DHS said, “Okay. We’ll take a new look at the rule.” And the DHS issued a new document that repealed MPP again and attempted to address the APA problems identified in Judge Kascmaryk’s opinion. Well, the Fifth Circuit considered whether that new document was a new rule that ought to be reviewed as part of the appeal or whether it was permissible further explanation for the old rule. And the Fifth Circuit said, “No. We cannot consider this new document. It’s not really a true reconsideration of the repeal rule. It’s really just a post hoc rationalization for the old repeal rule.” In other words, the administration was just coming up with new reasons for the old rule rather than truly reconsidering the rule. And, of course, we know from SEC v. Chenery, basic administrative law procedures, Courts cannot consider post hoc rationalizations to justify agency actions and thus, the Court can only consider the defective rational offered by the initial repeal.


So the case has been expedited. It will be heard this term. And as the case comes to the Court, it presents one important substantive question of immigration law and one important question of administrative law. The substantive question, I’ve already alluded to is, what does the INA say about paroling aliens into the United States. There’s two clauses that are at issue. The government emphasizes the fact that the INA allows the administration to -- that the administration “may” return individuals to Mexico pending removal. And the states emphasize the fact that it says they “shall detain” individuals pending removal. So the government argues that this all needs to be read against the backdrop of traditional enforcement discretion enjoyed by the Executive Branch. And the government also argues that it is reading that parole provision consistent with every administration prior to Trump. And therefore, that it has a historical pedigree supporting it.

Now, the procedural issue is, I think only reached if the Court decides the substantive INA question against the government and that is, is this a new rule or is it a post hoc rationalization for the old rule? And the government essentially says, “You’ve got to take us at our word. We really did look at this. We really did reconsider it. And there’s no pretext here. The Court needs to just review the rational that we’ve given it, and it’s appropriate. It solves all the problems identified by the lower court opinions.” So it’s a pretty esoteric question about how a court determines if something is a new rule or a post hoc rationalization or a legitimate supplementation of the rationale. But it will be very relevant to future administrative law challenges and to all of us who love administrative law and the ins and outs of that process. It’ll be a case that could provide some important guidance.


Elbert Lin:  Anyone else have any comments on this case? Yeah. Aaron, there’s obviously West Virginia v. EPA which was heard earlier also raises some questions about -- that has a, obviously, the substantive and administrative piece of it, but it’s also another one of these cases where the administration is trying to change its position. And there’s a question there about whether that change in position essentially makes the case moot. So there are a lot of these kinds of cases out there, and it seems like they’re only going to keep coming.


Aaron M. Streett:  Yeah. There was also the public charge case earlier this term which was even more convoluted in its procedural history. So maybe the Court will be able to make some sense out of this because it’s only, like you say, it’s only going to continue to happen with new administrations and they need to know what should be done.


Elbert Lin:  Right. Right. And they’ve got to walk that line, right, where they frequently say, of course, the executive has the prerogative to change its policy mind, but it’s just got to do it in a lawful way.


All right. We’ve got ten minutes. Let me run through the last three cases real quick so people know what they are. But if anyone in the audience has questions, feel free to put them in the chat box. There is one -- two that I can answer very quickly. Will Justice Jackson participate in these arguments? The answer is no. Justice Jackson has been confirmed but won’t take her seat until it’s vacated by Justice Breyer. And there’s all sorts of questions about what happens if he changes his mind, but assuming he vacates his seat as he says he will, Justice Jackson will then take her seat. And so she’ll participate in arguments in the fall. And then, Misha had mentioned QP2 in his discussion. It means question presented to. So Oklahoma had asked for review of two questions and the Court only granted one of those.


The other three cases, while people are putting questions into the chat, US v. Washington is a case about a state workers compensation law. But what it is, is it’s a worker’s comp law that applies only to federal contract workers. And so the United States has sued the state of Washington over this law invoking the doctrine of intergovernmental immunity which is a really old doctrine that basically says that states can’t discriminate against the federal government, and it usually comes up in the tax context where states have tried to tax federal employees working within the state in a different way than state employees. We had one of these cases in West Virginia that we lost resoundingly. But that’s the intergovernmental immunity doctrine. So if anybody’s interested in that US v. Washington, it’s a case to watch.


The second case that we didn’t cover is George v. McDonough. It’s a veteran’s appeal. The veterans’ statutes provide that otherwise final decisions by the veterans’ agencies are subject to review if there has been a clear and unmistakable error of law. And so the question in that case which, I think, could have broader implications for administrative law generally is what happens if a decision -- an administrative decision that it was relied upon is later invalidated by a court. Is that a clear and unmistakable error of law within the meaning of the veterans’ statutes such that it would require revisiting an otherwise final decision? Obviously, very important for veterans and veterans’ decisions, but it could have some spill over effect into what does it mean when an administrative ruling or rule is later invalidated by a court.


And then the last case that we didn’t cover is Nance v. Ward. And that’s a death penalty case and really fundamentally what that case comes down to is whether the cause of action that was brought there which has to do with the method of execution, is a habeas claim or is it a 1983 claim. And, for those who don’t practice in that area, really the sort of difference is, is it a challenge to the conditions of custody or is it a challenge to the lawfulness of the custody itself. It’s kind of the -- that’s the distinction that the state articulates and so the question there is was it a more properly a habeas petition or more properly a 1983 claim.


And so that leaves us with six minutes. I haven’t seen any additional questions in the chat. But just to give folks maybe another minute or two. Do our panelists have anything else they want to offer as we wrap up our brisk 90 minutes? Okay. Well, Nate, I don’t see any other questions. Shall we let these fine people go on their way.


Nate Kaczmarek:  I don’t want to let them go because I’ve enjoyed it so much. I think I’m a little biased, but it was an excellent and very efficient preview for our audience. Certainly, our thanks to Elbert, Noel, Allyson, Aaron, and Misha for your valuable time and analysis this afternoon. We welcome audience feedback by email at [email protected]. Thanks everyone for joining us. Have a great day.




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.