This Week’s Brief: January 27

As the January sitting came to a close, the Court made headlines in its orders list on Monday. Five Justices voted to allow the Trump Administration to temporarily enforce its new “public charge” immigration rule. Four Justices dissented. Justice Gorsuch (joined by Thomas) wrote an opinion supplementing his yea vote. Beyond this, the Court added an original jurisdiction, water-rights case to its docket and denied an application for a stay of execution. Here’s your brief for the Week of January 27.


This Week:
Decisions: 0
Opinions Relating to Orders: 1
Cases Argued: 0
Cert. Grants: 1
CVSGs: 1
GVRs: 1

O.T. 2019:
Cases Decided: 5
Cases Remaining: 68
Weeks Left in Term: 21


The Court released orders on Monday morning. The Justices ordered oral argument in Texas v. New Mexico, an ongoing original-jurisdiction case involving a water-rights dispute between the two states. One CVSG was issued in Caci Premier TechnologyInc. v. Al Shimari. The Court granted, vacated, and remanded Davis v. United States in light of last term’s decision in Rehaif v. United States. The Court also dismissed Walker v. United States—which had been granted last November—as the Petitioner passed away last week, rendering the case moot.

The biggest news all week came from the Court’s order in Department of Homeland Security v. New York. A five-member majority of the Court stayed a preliminary, nationwide injunction against the Trump Administration’s new “public charge” immigration rule.

The 1965 Immigration and Nationality Act (8 U.S.C. §1182(a)(4)(A)) denies immigrants entry into the U.S. if, “in the opinion of” the Secretary of the Department of Homeland Security (DHS), the immigrant is “likely at any time to become a public charge.” What does “public charge” mean? Well, Congress did not define it in the INA, instead delegating that power to DHS. According to DHS guidance documents from 1999, “public charge” meant an immigrant who is “primarily dependent” on a set of cash benefits from the federal government. DHS’ new “public charge” rule would expand that definition to include certain non-cash benefits—like housing or food—and to consider whether the immigrant would need such benefits for 12 months or more.

The new rule was instantly met with a host of litigation around the country. Four federal district courts separately issued preliminary injunctions effective nationwide. On appeal, two of those injunctions were stayed (in the Fouth and Ninth Circuits), on the ground that the new rule was likely a permissible exercise of DHS’ authority under the INA. But the third appeal, which went to the Second Circuit in New York, was unsuccessful. This left DHS barred from enforcing the rule anywhere in the U.S. DHS appealed the Second Circuit’s decision to the Supreme Court, asking the Justices to stay the nationwide injunction.

Five Justices—Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh—voted to grant the stay. The majority did not opine on the merits—that is, whether they think DHS actually does have the authority under the INA to issue the rule. They simply ruled that DHS can enforce the rule while federal appeals courts are weighing the merits. Justices Ginsburg, Breyer, Sotomayor, and Kagan would not have granted the stay.

Gorsuch (joined by Thomas) wrote an opinion concurring in the ruling. He criticized the practice of local district court judges issuing nationwide (even “universal”) injunctions. To Gorsuch, the “basic flaw” in every such injunction is that they “direct how the defendant must act toward persons who are not parties to the case.” The Court must, in Gorsuch’s mind, soon decide whether regional judges have the authority under Article III of the Constitution to issue orders whose consequences go far beyond the people subject to their jurisdiction or the parties in the litigation before them.


The Court held no proceedings on Tuesday.


Wednesday night, the Court denied Donnie Lance’s application for a stay of his execution. Lance, who was sentenced for death in Georgia for murdering two people in 1997, had alleged prosecutorial misconduct during the jury-selection phase of his capital trial.


The Court held no proceedings on Thursday and Friday.

Some high profile cases the Justices are continuing to consider include:

  • Box v. Planned Parenthood of Indiana & Kentucky, Inc. This case challenges an Indiana state abortion law that requires women who seek an abortion to, among other things, undergo a fetal ultrasound eighteen hours before the abortion is performed. The question presented is whether such an ultrasound requirement violates a woman’s Fourteenth Amendment rights.
  • United States v. California. This case involves the Trump administration’s challenge to California’s statewide “sanctuary” law. The law prohibits state law-enforcement officers from providing information about immigrants (both legal and illegal) to federal immigration officials. The question before the Court is whether federal immigration law preempts California’s sanctuary law—and others like it in cities and states around the country—under the Supremacy Clause of the Constitution.
  • California v. Texas. This case concerns the oft-challenged “individual mandate” in the 2010 Patient Protection and Affordable Care Act (ACA). In December 2019, the Fifth Circuit Court of Appeals held that the Tax Cuts and Jobs Act of 2017 (TCJA) overruled the Supreme Court’s decision in NFIB v. Sebelius (2012) upholding the constitutionality of the individual mandate. The Fifth Circuit then ordered the district court to consider whether the ACA must be struck down. The questions before the Supreme Court are (1) whether Petitioners have standing; if so, (2) whether the TCJA overruled NFIB; and if so (3) whether the individual mandate is severable from the ACA.
  • Worman v. Healey. This case concerns a Massachusetts state law that bans, inter alia, semiautomatic “assault weapon[s]” and magazines capable of accepting 10+ rounds of ammunition. The question presented is whether that law violates the Second Amendment to the Constitution.
  • Malpasso v. Pallozzi. This is a constitutional law case asking whether a state law that categorically prohibits residents from carrying handguns outside the home for self-defense violates the Second Amendment.
  • Reisman v. Associated Faculties of the University of Maine. This case mixes labor unions with the Free Speech Clause of the First Amendment. The questions presented is whether it violates the First Amendment to designate a labor union to represent and speak for public-sector employees who object to its advocacy on their behalf.
  • Collins v. Mnuchin. This case concerns a constitutional challenge to the structure of the Federal Housing Finance Agency (FHFA), a mirror-image case to that of Seila Law v. CFPB, the challenge to the structure of the Consumer Financial Protection Bureau. The questions presented in Collins are (1) whether the structure of the FHFA violates the separation of powers, and if so (2) whether the actions of the FHFA must be annulled and the statute creating its structure struck down.
The Week Ahead

The Justices are not between sittings. As a result, there are no official proceedings scheduled for next week. The Court’s next private conference is scheduled for Friday, February 21. The next orders list and oral arguments are set for Monday, February 24.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s