[The Court does not hear arguments on Veterans Day.]
Tuesday, November 12
The morning starts with three cases (consolidated for 80 minutes of argument total: DHS v. Regents of the Univ. Calif., Trump v. NAACP, and McAleenan v. Vidal) involving DACA, Deferred Action for Childhood Arrivals. This is a famous controversy and much has been written about these cases (Scotusblog has a great symposium), but I will offer a quick background and a suggestion about issues and lines of argument to look for.
DACA began in 2012 under President Obama. Non-citizens who had come to the US under the age of 16 and could meet certain standards (good criminal history, in school or graduated or a veteran) could apply for DACA status and, if approved, receive a letter declaring that the government would not seek to deport them despite their undocumented status. This is a form of “prosecutorial discretion” — a well-recognized legal term for the obvious reality that the government lacks resources to enforce all laws 100% of the time, and so the executive has discretion to decide what to prioritize when enforcing the law.
In 2017, under the Trump Administration, DACA was criticized by then-AG Sessions and ultimately rescinded. Importantly, the documented reasons for rescinding the policy was that it had been challenged in court and the AG had written that DACA “was an unconstitutional exercise of authority by the Executive Branch.”
That is important because government agencies must have a valid reason for taking action (which includes rescinding a prior action), and so actions based on an improper legal conclusion are almost always invalid under the Administrative Procedures Act. Although controversial, the best legal analysis is that DACA was constitutional — as above, the executive has to set priorities in deciding how to enforce laws with limited resources, and this was just a decision not to focus on child arrivals. The Trump administration could have said they have different priorities and so are rescinding DACA for that reason. But it didn’t; it said the reason was its conclusion that DACA was unconstitutional, which is not a valid legal conclusion. All three courts in these cases found that the asserted unconstitutionality of DACA was not defensible, and that therefore the decision to rescind DACA was not based on any valid reasoning.
In this context, it is worth remembering last term’s decision on the proposed addition of a “citizenship question” in the census, Dept of Commerce v. New York. Chief Justice Roberts was the 5th vote against the Trump Administration. He noted that the government would have been entitled to add a citizenship question for any of a number of reasons, including simply to appease a certain political constituency. But there, the Secretary instead claimed he was adding the question in order to help the Department of Justice better enforce the Voting Rights Act; a great deal of evidence showed that this explanation was “contrived.” And so Chief Justice Roberts joined the progressive justices in striking down that action. The final lines of his opinion are worth remembering before arguments in this case: “We do not hold that the agency decision here was substantively invalid. But agencies must pursue their goals reasonably. Reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.”
Cross-border shooting / Bivens
The second argument today involves a cross-border shooting and the scope of Bivens actions. Briefly, a Border Patrol officer standing on US soil fired his weapon toward a group of people on Mexican land, hitting a teenager in the face and killing him. Ordinarily, plaintiffs need a Congressional statute that authorizes their lawsuit, and there is no federal statute that the boy’s family could use to seek redress. But the 1971 case of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics stands for the proposition that the Constitution itself provides a basis for bringing suit for violations of constitutional rights. The case today does not address whether this shooting was unconstitutional (the prohibition on deprivation of life without due process is a constitutional right that has been held to apply to non-citizens generally, although the cross-border nature obviously complicates things); the merits would have to wait for another day. The Court today will consider only whether Bivens actions at least potentially apply to this situation. For more, please see the thorough preview on Scotusblog.
Wednesday, November 13
The first case today involves the 1866 Civil Rights Act (not a typo; the Reconstruction-era law). The law (now codified at 42 U.S.C. § 1981) requires that all citizens have the same right to “make and enforce contacts . . . as is enjoyed by white citizens.” In Comcast v. National Association of African American-Owned Media, an association claims that Comcast refused to carry their channels because of racial animus. Comcast denies any such motive, but the trial court never reached that question and instead dismissed the case because it read the complaint as alleging mixed motives (that Comcast had legitimate reasons as well as illegitimate motives). The trial court held that § 1981 actions require but-for causation (the action would not have occurred but for the plaintiff’s race). In contrast, Title VII of the 1964 Civil Rights Act has been amended to clarify that employment discrimination is unlawful if race was a “motivating factor” (not necessarily the sole factor) in the decision to take that employment action. But since this is not an employment case, the question is whether a § 1981 case requires the plaintiff to show that race was the reason, rather than a reason. See the full description of the arguments on both sides at Scotusblog.
[The second case today is not one that would recommend to a casual observer. It involves procedural questions in bankruptcy cases.]