303 Creative LLC v. Elenis

Issues

Does a public accommodation law violate the Free Speech Clause of the First Amendment when it compels an artist to create custom designs that go against her beliefs?

This case asks the Supreme Court to balance public accommodation anti-discrimination laws and First Amendment rights. The Colorado Anti-Discrimination Act (“CADA”) limits a public accommodation’s ability to refuse services to a customer based on their identity, such as sexual orientation. 303 Creative LLC and its owner Lorie Smith argue that CADA violates their First Amendment rights to free artistic expression and religious belief. Respondent Aubrey Elenis, Director of the Colorado Civil Rights Division, counters that CADA regulates discriminatory commerce, not speech, and thus does not violate 303 Creative LLC’s First Amendment rights. The outcome of this case has heavy implications for LGBTQ+ rights, freedom of speech and religion, and creative expression.

Questions as Framed for the Court by the Parties

Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.

Colorado's Anti-Discrimination Act (“CADA”) limits a place of public accommodation’s ability to refuse services to a customer based on their identity. 303 Creative LLC v.

Acknowledgments

The authors would like to thank Professor Nelson Tebbe for his guidance and insights into this case.

Additional Resources

Submit for publication
0

Percoco v. United States

Issues

Does an individual owe a fiduciary duty to the public that can serve as the basis of an honest-services fraud conviction under 18 U.S.C. § 1346, notwithstanding the fact that the individual does not have an official government position but only informal influence over government decisionmaking?

This case asks the Court to analyze 18 U.S.C. § 1346, the honest-services fraud statute, and determine if an individual with informal power but no official governmental position can violate the statute. Joseph Percoco and Steven Aiello argue that private individuals lacking formal governmental power cannot commit honest-services fraud because they do not owe the public a duty of honest services. Percoco and Aiello further argue that including private individuals within § 1346 would render the statue unconstitutionally vague, violate the First Amendment, and entrench upon state sovereignty. The United States contends that private individuals can commit honest-services fraud when they have been selected for public office and when they are de facto officeholders in all but name. The United States also argues that § 1346 clearly defines improper behavior and does not limit First Amendment activity. This case touches on important questions regarding lobbying, free speech, and the interaction of state and federal bribery laws.

Questions as Framed for the Court by the Parties

Whether a private citizen who holds no elected office or government employment, but has informal political or other influence over governmental decisionmaking, owes a fiduciary duty to the general public such that he can be convicted of honest-services fraud.

Petitioner Joseph Percoco served as Executive Deputy Secretary under former Governor Andrew Cuomo from 2011 until 2016, except for eight months in 2014 while Percoco ran the Governor’s reelection campaign. United States v. Percoco at 5. This position required managing both intergovernmental and legislative matters.

Additional Resources

Submit for publication
0

Ciminelli v. United States

Issues

Are schemes that deprive a person of information regarding an economic decision punishable under the federal wire fraud statute?

This case asks the Supreme Court to decide whether the “right to control” theory of fraud creates a cause of action under the federal wire fraud statute. Under the “right to control” theory, the federal wire fraud statute may be used to punish schemes which intend to deprive a victim of valuable information regarding an economic decision. Ciminelli claims that the “right to control” theory improperly expands rights considered in the fraud statutes and improperly eases the government’s burden of proof. United States maintains that the “right to control” is properly limited to specifically target information deprivation schemes with tangible economic harms and that Ciminelli’s conviction holds even without the “right to control” theory. This case has significant implications for the construction industry, concerns of overcriminalization, and the limit of federal jurisdiction.

Questions as Framed for the Court by the Parties

Whether the US. Court of Appeals for the 2nd Circuit’s “right to control” theory of fraud ­­– which treats the deprivation of complete and accurate information bearing on a person’s economic decision as a species of property fraud – states a valid basis for liability under the federal wire fraud statute.

In 2012, Andrew Cuomo, New York Governor at the time, launched the “Buffalo Billion” initiative to develop the Buffalo area with $1 billion in taxpayer funds. United States v.

Additional Resources

Submit for publication
0

United States v. Texas

Issues

Are states required to suffer direct injuries to sue the federal government? Are the Department of Homeland Security’s September 2021 immigration enforcement guidelines, which authorize discretion to enforce immigration statutes, contrary to federal immigration law or the Administrative Procedure Act, and can a court vacate the guidelines?

This case asks the Supreme Court to consider whether Texas and Louisiana may sue the federal government in federal court despite not having suffered a direct injury from agency action, and whether the Department of Homeland Security’s (“DHS”) September 2021 Guidelines for the Enforcement of Civil Immigration Law (“Guidelines”) violate the Immigration and Nationality Act (“INA”) or the Administrative Procedure Act (“APA”). The Court must also decide whether the INA prevents a court from vacating an administrative action under the APA. The United States claims that Texas and Louisiana cannot sue the federal government because the Constitution requires a direct harm, that the Guidelines do not violate the INA because the statutory language accommodates traditional prosecutorial discretion, and that the INA prevented the district court from vacating the Guidelines. Texas and Louisiana counter that they can sue because a direct injury is not required when a state sues the federal government, that the Guidelines violate the INA because the statutory language specifically override prosecutorial discretion, and that the district court properly vacated the Guidelines because it was authorized by the broad statutory language and court precedent and did not conflict with the INA. The Court’s holding will affect the removal for noncitizens, which significantly impacts the social treatment of and rhetoric surrounding noncitizens, government efficiency and accountability, and public health, safety, and stability.

Questions as Framed for the Court by the Parties

(1) Whether state plaintiffs have Article III standing to challenge the Department of Homeland Security’s Guidelines for the Enforcement of Civil Immigration Law;

(2) whether the Guidelines are contrary to 8 U.S.C. § 1226(c) or 8 U.S.C. § 1231(a), or otherwise violate the Administrative Procedure Act; and

(3) whether 8 U.S.C. § 1252(f)(1) prevents the entry of an order to “hold unlawful and set aside” the guidelines under 5 U.S.C. § 706(2).

In January 2021, the then-Acting Secretary of the Department of Homeland Security (“DHS”) issued a memorandum. Texas v. United States at 2.

Submit for publication
0

Wilkins v. United States

Issues

Is the Quiet Title Act’s statute of limitations provision a jurisdictional condition or a claim-processing rule?

This case asks the Supreme Court to determine if the Quiet Title Act’s statute of limitations is a jurisdictional requirement. Petitioners Larry Steven Wilkins and Jane B. Stanton argue that Congress must expressly state its intent when drafting a statute of limitations meant to be treated as a jurisdictional bar; therefore, the absence of such explicit language in the Quiet Title Act means that the statute of limitations is not jurisdictional. The United States contends that Supreme Court precedent supports treating the statute of limitations as a jurisdictional rule and emphasizes that there are no intervening Supreme Court decisions or statutory revisions of the Quiet Title Act that overrule such precedent. The outcome of this case will determine the accessibility of legal relief for individuals when resolving land disputes with the federal government and affect the balance between local governments and the federal government in litigation involving the Quiet Title Act.

Questions as Framed for the Court by the Parties

Whether the Quiet Title Act’s statute of limitations is a jurisdictional requirement or a claim-processing rule.

Larry Wilkins and Jane Stanton purchased residential property in 1991 and 2004, respectively. Wilkins v. United States at 793. Their properties are located alongside Robbins Gulch Road in Connor, Montana. Id. The road crosses various private properties to connect Bitterroot National Forest and Highway 93.

Additional Resources

Submit for publication
0

SEC v. Cochran

Issues

Whether a federal district court, under the Securities Exchange Act of 1934, has jurisdiction over a lawsuit to adjudicate structural constitutional claims challenging Securities and Exchange Commission administrative proceedings?

This case asks the Supreme Court to decide whether a federal district court has jurisdiction over a suit in which the respondent in an ongoing Securities and Exchange Commission (“SEC”) administrative proceeding seeks to enjoin that proceeding, on account of an alleged constitutional defect in the statutes governing the removal of the overseeing administrative law judge. The SEC claims that the Court’s decision in Free Enter. Fund v. Pub. Co. Oversight Bd. specifically allows double-tenure protection for administrative law judges, that decisions in Thunder Basin Coal Co. v. Reich and Elgin v. Dep’t of the Treasury do not require Congress to provide a clear statement in order to strip district courts of jurisdiction, and that constitutional challenges to its administrative adjudications are properly addressed through the Securities Exchange Act of 1934 (“Exchange Act”) and the Administrative Procedure Act (“APA”). Michelle Cochran counters that administrative law judges should not be granted double tenure from removal because it infringes on executive branch authority, that Thunder Basin requires a clear Congressional statement stripping district courts of jurisdiction, and that the SEC’s statutory authority is insufficient to address her constitutional challenge. The Court’s holding could significantly impact the SEC’s adjudicative activities and the nature, volume, and frequency of judicial review cases more broadly.

Questions as Framed for the Court by the Parties

Whether a federal district court has jurisdiction to hear a suit in which the respondent in an ongoing Securities and Exchange Commission administrative proceeding seeks to enjoin that proceeding, based on an alleged constitutional defect in the statutory provisions that govern the removal of the administrative law judge who will conduct the proceeding.

The Securities and Exchange Commission (“SEC”) initiated administrative proceedings against Michelle Cochran, a certified public accountant, in 2016. Cochran v.

Acknowledgments

The authors would like to thank Professor Jeffrey J. Rachlinksi for his guidance and insights into this case.

Additional Resources

Submit for publication
0

Mallory v. Norfolk Southern Railway Co.

Issues

Does requiring a corporation to consent to personal jurisdiction as a condition to do business in a state violate the Due Process Clause of the Fourteenth Amendment?

This case asks the Supreme Court to consider whether the Due Process Clause permits consent-by-registration as a basis for personal jurisdiction. Pennsylvania’s consent-by-registration statute requires that foreign corporations registered in the state consent to general personal jurisdiction there. Robert Mallory contends that consent-by-registration statutes produce valid consent to personal jurisdiction because consent-by-registration has been traditionally accepted as a basis of personal jurisdiction, and recent cases have not overruled this notion. Norfolk Southern Railway Company counters that consent-by-registration statutes fail to provide valid consent because registration jurisdiction is neither widely accepted nor consistent with modern personal jurisdiction jurisprudence. The outcome of this case has heavy implications for businesses and state sovereignty.

Questions as Framed for the Court by the Parties

Whether the Due Process Clause of the 14th Amendment prohibits a state from requiring a corporation to consent to personal jurisdiction to do business in the state.

Robert Mallory (“Mallory”) is a Virginia resident who was an employee of Norfolk Southern Railway Company (“Norfolk”) from 1988 to 2005. Mallory v. Norfolk S. Ry. Co. at 551. Mallory sued Norfolk in a Pennsylvania state court for claims arising under the Federal Employers Liability Act.

Acknowledgments

The authors would like to thank Professor Kevin M. Clermont for his guidance and insights into this case.

Submit for publication
0

Health and Hospital Corporation of Marion County, Indiana v. Talevski

Issues

Does the Federal Nursing Home Reform Act, a statute enacted under the Spending Clause, create a private right of action for individuals to vindicate federal statutory rights under 42 U.S.C. § 1983?

This case asks the court to analyze both 42 U.S.C. § 1983 and the Federal Nursing Home Reform Act (“FNHRA”), 42 U.S.C. § 1396r et seq., to decide whether FNHRA, a Spending Clause statute, creates enforceable private rights of action under § 1983. Petitioners Health and Hospital Corporation of Marion County, Indiana (“HHC”) argue that contrary to the Supreme Court’s holding in Wilder v. Virginia Hospital Association, § 1983 does not imply a private right of action for Spending Clause legislation unless the legislation expressly includes a private right of action. HHC further contends that even if Spending Clause legislation can imply a private right of action, there is no private right of action under FNHRA because its language does not grant statutory rights to patients and because it contains an individualized enforcement mechanism which precludes § 1983 enforcement. Respondent Ivanka Talevski counters that the plain text of § 1983 unambiguously creates a private right of action whenever Congress uses Spending Clause legislation to protect a federal right and argues that overturning Wilder would contradict decades of judicial and legislative precedent. Talevski further argues that FNHRA’s language clearly establishes statutory federal rights. This case touches on important questions regarding healthcare administration, the protection of nursing home residents, federalism, and the separation of powers. 

Questions as Framed for the Court by the Parties

(1) Whether, in light of compelling historical evidence to the contrary, the Supreme Court should reexamine its holding that spending clause legislation gives rise to privately enforceable rights under 42 U.S.C. § 1983; and (2) whether, assuming spending clause statutes ever give rise to private rights enforceable via Section 1983, the Federal Nursing Home Amendments Act of 1987’s transfer and medication rules do so. 

In January 2016, Respondent Ivanka Talevski placed her husband, Gorgi Talevski, an elderly man living with dementia, in the care of Valparaiso Care and Rehabilitation (“VCR”), an institution owned by Petitioner Health and Hospital Corporation of Marion County (“HHC”). Talevski v. Health and Hospital Corporation of Marion County at 715. VCR is a state-run nursing facility near the Talevskis’ home in Indiana.

Additional Resources

Submit for publication
0

Haaland v. Brackeen

Issues

Does the Indian Child Welfare Act discriminate based on race and commandeer state apparatuses in the adoption placements of Indian children?

Note: The authors mirror the parties’ and courts’ use of the terms “Indian” and “Indian child” as legal terms in this Preview.

This case asks the Supreme Court to determine whether the Indian Child Welfare Act (“ICWA”) violates the U.S. Constitution’s Fourteenth Amendment equal protection guarantee and contravenes anticommandeering principles rooted in the Tenth Amendment. Deb Haaland, Secretary of the United States Department of the Interior, argues that ICWA’s classification of “Indian child” is constitutional because the classification is political and tied to Congress’s “unique obligation” to Indian tribes. Haaland further contends that Congress has the power to regulate Indian child placement preferences under the Indian Commerce Clause. Chad Everet Brackeen asserts that ICWA’s classification of “Indian child” is race-based and violates the Equal Protection Clause. Brackeen also asserts that ICWA’s placement preferences exceed Congress’s authority by forcing state agencies to carry out federal laws. The outcome of this case has important implications for Indian children’s interests, tribal interests, and state sovereignty regarding the adoption proceedings of Indian children.

Questions as Framed for the Court by the Parties

1. Whether ICWA’s placement preferences— which disfavor non-Indian adoptive families in child- placement proceedings involving an “Indian child” and thereby disadvantage those children—discriminate on the basis of race in violation of the U.S. Constitution.

2. Whether ICWA’s placement preferences exceed Congress’s Article I authority by invading the arena of child placement—the “virtually exclusive province of the States,” Sosna v. Iowa, 419 U.S. 393, 404 (1975)—and otherwise commandeering state courts and state agencies to carry out a federal child-placement program.

In 1978, Congress enacted the Indian Child Welfare Act (“ICWA”) to protect American Indian children from widespread removal from their native families and communities and placement in non-Indian homes. Brackeen v. Haaland at 28–29. Prior to ICWA’s adoption, 25 to 35 percent of Indian children were removed from their families.

Acknowledgments

The authors would like to thank Professor Michael Sliger and Derril B. Jordan, Esq. for their guidance and insights into this case.

Additional Resources

Submit for publication
0

Axon Enterprise, Inc. v. FTC

Issues

Does the FTC Act remove subject-matter jurisdiction from district courts to hear constitutional challenges to the FTC’s structure, procedures, and existence by providing for FTC administrative adjudication of antitrust issues and review of these decisions by the courts of appeals?

This case asks the Supreme Court to decide whether claims brought by parties like Axon Enterprise, Inc. (“Axon”) that challenge the structure of the Federal Trade Commission can be reviewed by district courts prior to the completion of agency proceedings. Axon contends that federal district courts should be able to hear constitutional challenges to agency structure concurrently with agency enforcement proceedings because enjoining such proceedings is necessary to avoid “here-and-now” constitutional injury. The FTC counters that the Federal Trade Commission Act implicitly strips district courts of subject-matter jurisdiction over these challenges, making judicial review available only in the courts of appeals and only after a final order by the FTC. The case carries significant implications for administrative law because allowing businesses subject to FTC regulation to preemptively challenge agency proceedings could significantly scale back the agency’s enforcement powers.

Questions as Framed for the Court by the Parties

Whether Congress impliedly stripped federal district courts of jurisdiction over constitutional challenges to the Federal Trade Commission’s structure, procedures, and existence by granting the courts of appeals jurisdiction to “affirm, enforce, modify, or set aside” the commission’s cease-and-desist orders.

The Federal Trade Commission Act (the “FTC Act”) empowers the Federal Trade Commission (“FTC”) to address the use of “unfair methods of competition” by initiating administrative proceedings and issuing cease-and-desist orders. Axon Enter. v. Trade Comm’n at 1189.

Additional Resources

Submit for publication
0
Subscribe to