This Week’s Brief: October 14

The Justices met for their second full week of the term. The Court added four cases to its merits docket, heard oral arguments in another four cases, and gave us all a couple interesting nuggets in its orders lists (including a dismissal of a case that might already win the award for the “Strangest Cert Petition of the Term”). For your weekly recap of the action at 1 First St. NE, here’s your brief for the week of October 14.


This Week:
Oral Arguments: 4
Cert. Grants: 4
CVSG’s: 1
GVR’s: 7

O.T. 2019:
Cases Decided: 0
Cases Remaining: 48
Weeks Left in Term: 36


The Court was off on Monday for the legal holiday.



First thing Monday morning, the Court released Orders from last week’s conference. The Justices didn’t add any new cases to their docket this time around (it did that later this week—more on that in the Friday section below). The Justices granted, vacated, and remanded (GVR’d) seven cases, all relating to last term’s decision in Rehaif v. United States. Rehaif was a statutory interpretation case in which the Court held that an illegal immigrant is not liable under a section of federal immigration law (18 U.S.C. § 924(a)(2))—which provides for a longer prison sentence if the immigrant first violates §922(g), which is about illegal possession of firearms—unless the immigrant knows he/she is in the country illegally and refuses to leave. It’s likely that the seven cases the Court GVR’d were all nearly identical to Rehaif, so the Justices are allowing the respective lower courts the first opportunity to apply Rehaif instead of the Supreme Court doing it seven times over.

The Court called for the views of the U.S. Solicitor General (“CVSG”) in one case, Peterson v. Linear ControlsInc. The case involves interpreting Title VII of the 1964 Civil Rights Act, a statute already notable this term for being the subject of three, high-profile, LGBTQ+/transgender rights cases currently on the docket. But while those cases concern who is safeguarded against employment discrimination under Title VII, Peterson concerns which elements of a worker’s employment cannot be discriminated against under Title VII. As relevant to Peterson, Title VII prohibits workplace discrimination with respect to any employee’s “compensation, terms, conditions, or privileges of employment.” In the opinion below, the Fifth Circuit Court of Appeals held that “compensation, terms, conditions, or privileges of employment” is limited only to hiring, firing, promotions, compensation, and leave. Petitioners in the case asked the Court to review that decision. It should be noted that the Court hasn’t yet agreed to do so—it only asked the Solicitor General to give his two cents on the case. For more on why the Court issues CVSG’s and their significance, see my discussion here of a CVSG last term in Google, LLC v. Oracle America, Inc.

I’ll touch on a few other interesting nuggets from the Orders list. First, the Court permitted the Solicitor General to brief and argue as amicus curiae the Court’s Second Amendment case this term, New York State Rifle & Pistol Association v. City of New York, New York. Second, the Court divvied up the one hour of oral argument for its DACA cases as follows: 30 minutes for the Solicitor General (representing the federal government, who is on one side of the case), and 15 minutes each for the state and private respondents (on the other side of the case). For more on these cases, see my discussion in my Term Preview.

Finally, the Court dismissed one of the strangest and most ambitious petitions for a writ of certiorari I have ever seen. Christopher C. Schultz, a California resident, voted for Hillary Clinton in the 2016 presidential election. Following election night, Schultz sued then-President-elect Trump and Chief Justice Roberts (yes, you read that right) in a federal district court in California, asking the judge to block Chief Justice Roberts’ swearing-in of Trump as President. The judge politely declined. After the Ninth Circuit dismissed his appeal, Schultz petitioned the Supreme Court (still suing Roberts and Trump).

Schultz laid out eleven questions for the Court in his petition. (For those who don’t know, a typical cert petition has between one and three. Eleven is like giving someone a quiz over the alphabet with fifty multiple-choice questions. You get the picture.) Schultz claimed that the Twelfth Amendment, which lays out our system of electing the President (coined the “Electoral College”), is itself unconstitutional. This is an atmospherically bold claim, given that it’s strikingly difficult to see how—let me word this correctly—a portion of the U.S. Constitution violates the U.S. Constitution. Schultz then asserted that Roberts and Trump both broke the law at Trump’s inauguration ceremony. In Schultz’s words, Roberts “violate[d] his oaths of office which he took to become an attorney and judge when he swore in Donald J. Trump as President of the United States despite the fact Trump lost the election to Clinton by almost 3,000,000 votes, and he knew that, And [sic] also knew of the Voting/Civil rights cases of the 60’s and the ICCPR Treaty guaranteeing us our equal vote.” Meanwhile, Schultz maintains, Trump “violate[d] the very oath he took to uphold the Constitution by accepting such oath,” and thus is “not legally or morally the president of the United States of America.” I’m still trying to wrap my brain around the idea that someone can violate an oath’s obligations, before taking the oath, by taking the oath. But I digress. As if to drive this point home, Schultz even puts “President” Trump in quotation marks in the title of his brief.

Among other things, Schultz advocates for annulling “every act and appointment to office by Donald J. Trump,” which, he says, would include removing Justices Gorsuch and Kavanaugh from the Supreme Court. He implores the Court to install Hillary Clinton as President, even though he remarks that Clinton illegally conceded the Presidency to Trump “because she won the election.” Schultz also advances what I can only surmise is a novel legal theory: that international covenants—specifically the International Covenant on Civil and Political Rights—supersede contradictory U.S. law, including the Constitution. And in a poignant (is that the right word?) paragraph, Schultz makes clear the stakes facing the Supreme Court: “The only way this court [sic] can save all life on earth is by immediately making America a Democracy [sic] by counting our votes equally, as all other nations who hold elections for their leaders, [sic] do, and naming Sec. Hillary Clinton president, as she won the election by almost 3 million votes.”

The Justices denied his petition. In a show of good character, Chief Justice Roberts recused himself and did not take part in the conference discussions surrounding the petition (presumably because he was named as a defendant in the suit). A grim result, then, for Mr. Schultz—though I guess we’d know what Mick Mulvaney would say about the matter.

Oral Arguments:

The only oral argument on Tuesday was in Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC. In 2016, when Puerto Rico was in dire financial straits, Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA). That statute spawned the Financial Oversight and Management Board for Puerto Rico (“the Board”), whose task was to get the federal territory back on its financial feet. Under PROMESA, Congress chooses six of the Board’s members, which means they do not have to be confirmed by the Senate. But PROMESA gave the President (then Barack Obama) the power to appoint the Board’s seventh and final member, who began serving without Senate confirmation. Aurelius Investment sued, claiming the seventh Board member was acting in an illegal capacity. But the Board (and the federal government) pushed back, arguing that the seventh Board member was not an “officer of the United States”—meaning an officer who works for the federal government—but rather an officer working for the territory of Puerto Rico, and that the Constitution’s Appointments Clause extends only to “officer[s] of the United States.”

The First Circuit Court of Appeals straddled the fence. It agreed with Aurelius Investment that the seventh Board member needed to be confirmed by the Senate and therefore should not be acting in any capacity for the Board at this time. But it declined to invalidate all the work the Board had done since 2016, a measure Aurelius Investment had sought. Relying on the longstanding “de facto officer doctrine,” which advocates against the invalidation of the prior actions of a board or agency, the First Circuit highlighted the catastrophic impact annulling the board’s actions would have on the citizens of Puerto Rico.

Both parties in the case appealed. Aurelius Investment (among others) wants the Supreme Court to reverse on the de facto officer doctrine point, and the Board and the federal government want the Supreme Court to reverse on the requirement for the Board member’s Senate confirmation. The Court agreed to decide both questions: whether the seventh Board member must be confirmed by the Senate, and if so, whether the de facto officer doctrine should be applied here to salvage the Board’s work to date. The oral argument in Aurelius Investment is available via audio and transcript.


The Court heard oral arguments in three cases on Wednesday. First was in Kansas v. Garcia, which concerns whether the 1986 Immigration Reform and Control Act (IRCA) preempts states from using an employee’s information on a Form I-9 in state criminal proceedings. When IRCA was enacted, it superseded many of the processes states used for prosecuting employers who knowingly hire illegal workers, moving those civil suits to federal courts. IRCA also contains an express provision (18 U.S.C. § 1324(a)(b)(5)) saying that no “information contained in, or appended to” a Form I-9 may be used for any purpose except enforcing IRCA or use in other, similar federal fraud prosecutions. Here in Garcia, Kansas is trying to prosecute two noncitizens for identity theft under state law. Kansas originally used the defendants’ (fraudulent) personal information as they had written it on the Form I-9 but abandoned this tack during litigation (likely out of concern for IRCA’s limitations), instead using the federal W-4 and the Kansas equivalent (forms for withholding taxes). But the defendants argued the information on those forms was the same as that on the Form I-9, and therefore the state couldn’t use that information for its identity theft prosecution since IRCA preempted it.

The Justices will decide who is right, in short. Kansas underscores the importance of state police powers and the fact that the Form I-9’s information—names, addresses, dates of birth, etc.—may be the exact same on other forms that aren’t under the auspices of IRCA, raising concerns about the breadth of using this common information in other proceedings. The defendants counter that IRCA’s scope is a non-issue: It doesn’t matter how far IRCA goes, all that matters is that IRCA is in force. Not only is IRCA the federal law that addresses unauthorized employment and therefore renders any related state laws unnecessary and preempted, they say; it is federal immigration law, and in the context of noncitizen employment, the federal government has plenary power to prosecute any such cases. In other words, the defendants look to the State of Kansas and, pointing to IRCA, take the line out of Dorothy’s mouth: “We’re not in Kansas anymore!” The oral argument in Garcia is available via audio and transcript.

The second case the Court heard on Wednesday is a relatively unexciting one in Rotkiske v. KlemmRotkiske concerns the limitations provision of the 1977 Fair Debt Collection Practices Act (15 U.S.C. § 1692et seq.). §1692(K)(d) says that suits in federal court under §1692 must be brought “within one year from the date on which the [debt] violation occurs.” But what happens when the defendant is not aware of the violation immediately when it happens? For example, what happened in this case was Mr. Rotkiske sued Mr. Klemm in March 2008 for outstanding payments of Klemm’s credit card debt, but addressed the notification to the wrong street address. Rotkiske refiled the suit in January 2009, but addressed the notification to the same, incorrect address. In a weird blunder, the resident actually accepted the suit on Klemm’s behalf. Klemm discovered his debt violation over five years later (in September 2014) when he was denied a housing loan. The question the Court will decide is, does §1692(K)(d) require a suit to be brought within one year of the actual violation occurring, or within one year of when the defendant becomes aware of the violation? In other words, does §1692’s limitation provision begin to run when the violation takes place, or does the discovery rule toll the provision until the defendant “discovers” the violation? The oral argument in Rotkiske is available via audio and transcript.

The final argument of the week came in Mathena v. Malvo, the personal case of Lee Boyd Malvo, one of the two D.C. snipers in the 2002 shooting spree that left seventeen dead and ten others wounded. In Miller v. Alabama (2012), the Supreme Court held that the Cruel and Unusual Punishment Clause of the Eighth Amendment spares juveniles from a mandatory sentence of life imprisonment without parole (“juveniles” are those who were eighteen or younger when they committed their crime). In 2016, in Montgomery v. Louisiana, the Court held that Miller applied retroactively to juveniles who were mandatorily sentenced to life without parole before Miller.

Malvo was seventeen when he committed the murders, but his sentence—handed down before Miller—was not a mandatory sentence of life imprisonment without parole. Nevertheless, Malvo challenged his sentence under Miller and Montgomery. The Fourth Circuit Court of Appeals, interestingly, agreed. It held that Montgomery applied Miller retroactively not just to mandatory life sentences, but to discretionary sentences too (as was the case with Malvo).

The Supreme Court will determine whether the Fourth Circuit erred in so holding. The oral argument in Malvo is available via audio and transcript.


The Court held no proceedings on Thursday.


The Court met for its weekly private conference and unexpectedly released a small batch of cert grants. The Court added four cases to its docket, including Seila Law, LLC v. Consumer Financial Protection Bureau (CFPB), a constitutional challenge to the structure of the CFPB. The CFPB, an independent agency that has the power to carry out over a dozen federal consumer-protection statutes, is headed by a single director who can only be removed by the President “for cause.” Seila Law, whom the CFPB sought to investigate, challenged that structure and argued it violated our Constitution’s separation of powers principles. The Supreme Court will decide, first, whether the CFPB’s structure is constitutional. If the answer is “no,” the Court will next determine whether the CFPB provision of the 2010 Dodd-Frank Act can be struck while still salvaging the rest of the act.

For the other three grants, the Court will decide Nasrallah v. Barr, which asks whether federal appeals courts can review the factual findings of immigration judges’ determinations that concern temporary deportation relief on asylum grounds; Lomax v. Ortiz-Marquez, which asks whether, when a federal court dismisses a suit without prejudice because it fails to state a justiciable claim, that dismissal counts as a “strike” under 28 U.S.C. § 1915(g); and Department of Homeland Security v. Thuraissigiam, an as-applied challenge under the Suspension Clause to 8 U.S.C. § 1252(e)(2), a federal law that limits the ability of courts to review expedited deportation orders in habeas proceedings.

Beyond these, we can expect more orders on Monday.

The Week Ahead

On Monday morning, at 9:30am, we can expect additional orders from this Friday’s conference. The Court is finished with oral arguments for the month of October. The next round will begin on the first Monday in November.

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