Tag Archives: Supremecourt

New searchable website for Constitution Annotated

New searchable website for Constitution Annotated

The Library of Congress has created a new website for its Constitution Annotated, known officially as the “Constitution of the United States of America: Analysis and Interpretation.” For over 100 years, Constitution Annotated has served as the authoritative source for the American public to learn about the nation’s founding document alongside Supreme Court decisions that have expounded upon and refined it. The newest update, announced just in time for Constitution Day on September 17, is the latest in a string of efforts to bring the project fully into the digital era.

The new site, constitution.congress.gov, is home to a revamped, user-friendly version of the 3,000-page document, which for the first time ever is fully digitally searchable by the general public.

Librarian of Congress Carla Hayden described the site launch as “a great example of what we mean when we say we’re putting our users first.” Hayden emphasized that the new version transforms “the most comprehensive analysis of our Constitution” into a database that is “easier for everyone to use.”

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Challengers urge justices to dismiss census case after district court ruling

Challengers urge justices to dismiss census case after district court ruling

On February 19, the Supreme Court is scheduled to hear oral argument in U.S. Department of Commerce v. U.S. District Court for the Southern District of New York, a dispute over evidence in a challenge to the Trump administration’s decision to reinstate a question about citizenship on the 2020 census. The justices agreed in November to review the case, but they also rejected the government’s request to put the trial in the case on hold. The district court went ahead with the trial, and on Tuesday it issued its decision, blocking the government from using the citizenship question on the census. Today the challengers asked the justices to dismiss the case, telling them that the district court’s ruling “has fundamentally altered the circumstances that were present” when the Supreme Court granted review.

The dispute arose in March 2018, when Secretary of Commerce Wilbur Ross announced that the 2020 census would include a question about citizenship. The government explained that including a citizenship question would help the Department of Justice better enforce federal voting-rights laws, but the decision drew a court challenge from a group of states, cities and counties, who argue that the question will discourage undocumented immigrants from responding to the census, skewing the results.

The challengers sought to question Ross and John Gore, the acting head of DOJ’s civil rights division. The Supreme Court blocked the challengers from questioning Ross but allowed them to depose Gore and to seek facts outside the official administrative record.

On Tuesday, the district court issued its ruling, barring the government from including the citizenship question on the 2020 census. Relying only on the official record, the district court concluded that the government’s conduct involved a “smorgasbord of classic, clear-cut” violations of the federal law governing administrative agencies.

In a statement issued later that day, a spokeswoman for DOJ described the government as “disappointed” and “still reviewing the ruling,” but she also argued that the government was “legally entitled to include” the question – suggesting that the government planned to appeal. But as of this afternoon, the government had not yet acted. Instead, the challengers seized the initiative, filing a motion to dismiss the Supreme Court case.

The challengers told the justices that the question in the Supreme Court case centers on whether the district court was “correct to order” the Ross deposition. But, the challengers said, that issue is now moot – that is, no longer a “live” controversy – because the district court made its decision without questioning Ross and vacated the order requiring Ross’ deposition. Any remaining questions about whether the district court should have allowed fact-finding outside the official record can be addressed if the government appeals, the challengers argued.

With a deadline of June 2019 to finalize the census questionnaire looming, the challengers contended that it would be more efficient for all of the issues in the dispute to be considered together, rather than first litigating the dispute over the evidence in the Supreme Court. If the government wants relief from the district court’s ruling barring it from using the citizenship question on the 2020 census, the challengers concluded, it can seek an expedited appeal.

This post was first published at Howe on the Court.

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Justices asked to intervene in grand jury dispute

Justices asked to intervene in grand jury dispute

This afternoon the Supreme Court was asked to step into a clash over a grand jury subpoena that is widely believed to be related to Special Counsel Robert Mueller’s investigation into interference in the 2016 election. In a filing made under seal, an unnamed corporation – owned by a foreign country identified in the lower court only as “Country A” – apparently asked the justices to block the subpoena after the lower courts refused to do so. The case had been kept under wraps when the U.S. Court of Appeals for the District of Columbia Circuit heard oral argument last week, with courthouse security officers not only closing the hearing to the public but also locking down an entire floor of the courthouse.

On Tuesday, the D.C. Circuit upheld the district court’s order holding the corporation in contempt for failing to provide the information requested by the subpoena. The D.C. Circuit agreed with the district court that, although foreign countries are ordinarily shielded by the Foreign Sovereign Immunities Act from being sued in U.S. courts, the federal government (which is seeking the information) had shown that the case falls within an exception to the FSIA for commercial activities that have a direct effect in the United States. The D.C. Circuit also rejected the corporation’s argument that it should not have to comply with the subpoena because doing so would cause it to violate Country A’s laws, stressing that it was “unconvinced that Country A’s law truly prohibits the Corporation from complying with the subpoena.”

Tonight’s filing was under seal, so there is no way to know exactly what arguments are being made. However, the D.C. Circuit also rejected the corporation’s contention that the district court lacked power to hear criminal cases, such as this one, against foreign countries and the corporations that they own. In so doing, the court of appeals acknowledged that the Supreme Court’s earlier statements had not provided any “clear answer in this case” – which could also be the basis for the corporation’s plea.

Today’s filing went to Chief Justice John Roberts, who handles emergency appeals from the District of Columbia and can either act on the request himself or refer it to the full court. The next step will likely be to call for a response from the federal government, although that too will almost certainly be under seal.

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Whitaker appointment dispute reaches Supreme Court

Whitaker appointment dispute reaches Supreme Court

Since the moment President Donald Trump appointed Matthew Whitaker as Acting Attorney General on Wednesday, November 7, the move has been met with significant political and legal criticism, with numerous lawyers and commentators arguing that the president lacked both statutory and constitutional authority to name Whitaker—previously chief of staff to Attorney General Jeff Sessions—as Sessions’ interim successor. That argument may soon receive a conclusive resolution, thanks to an unusual motion filed in the Supreme Court late on Friday afternoon.

The movant, Barry Michaels, brought suit in March of 2016 against the attorney general and another senior government official seeking to challenge the constitutionality of the federal ban on possession of firearms by convicted felons. After losing in the lower courts, Michaels filed a petition for certiorari on June 27, in which the solicitor general’s response is currently due on December 17. But in a filing late Friday afternoon, Michaels—who is represented by Florida lawyer Michael Zapin and a team of lawyers from Goldstein & Russell, P.C., led by SCOTUSblog founder Tom Goldstein—moved the justices to “substitute” the appropriate successor to Sessions, who was one of the respondents to Michaels’ petition.

As the motion explains, the court’s rules usually provide for automatic succession of government-officer parties upon the prior officeholder’s departure. But “that practice is premised on the ability of this Court to identify the correct successor, so that any judgment or Order of the Court is directed to the correct individual.” Here, however, the dispute over the validity of Whitaker’s appointment means that “the identity of the successor is both contested and has important implications for the administration of justice nationally. This Motion seeks to resolve the dispute.” Michaels’ motion argues that the dispute ought to be resolved against the validity of Whitaker’s appointment—largely on the ground that the Federal Vacancies Reform Act of 1998 does not override or otherwise displace the mandatory order of succession set forth in the Department of Justice succession statute, codified at 28 U.S.C. § 508. And even if it did, the motion argues, the appointments clause of Article II of the Constitution does not allow for officials who have not been confirmed by the Senate to exercise the functions of a principal office, like the attorney general, on a temporary basis so long as no exigency precludes another, Senate-confirmed officer from doing so.

The motion concedes that “no characteristic of this case distinguishes it from any other in which Mr. Sessions was a named party” and that no lower court has yet addressed the issue. Nevertheless, the motion urges the justices to resolve the issue now because “[t]here is a significant national interest in avoiding the prospect that every district and immigration judge in the nation could, in relatively short order, be presented with the controversy over which person to substitute as Acting Attorney General.”

The justices have repeatedly reasserted that the Supreme Court is one of “review, not of first view.” Other challenges to the validity of Whitaker’s appointment have already been brought in contexts in which the acting attorney general is more than just a named party. And the U.S. Court of Appeals for the District of Columbia Circuit has ordered supplemental briefing as part of a challenge to the validity of Special Counsel Robert Mueller’s appointment and investigation as to whether the identity of Mueller’s current supervisor bears on the matter—and, if so, who it is. This issue therefore seems likely to reach the Supreme Court eventually. But the Michaels motion asks the justices whether they really want to wait that long. If they do not, then formally identifying the proper respondent to a petition for certiorari would certainly allow them to settle the matter once and for all.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner on this motion. The author of this post is not affiliated with the firm.]

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