Supreme Court Poised to Overturn Ninth Circuit Ruling Granting Bond Hearings to Criminal Aliens

supreme courtThe October 10 Supreme Court oral argument in Nielsen v. Preap demonstrated that the justices continue to be sharply, ideologically divided over the federal government’s authority to detain criminal aliens pending completion of removal proceedings. But contrary to some early post-argument commentary, the oral argument left little doubt about the likely outcome: Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh will vote to overturn the U.S. Court of Appeals for the Ninth Circuit’s constricted interpretation of the government’s detention authority. While the Court may impose some time limits on the authority to detain criminal aliens who were released from prison many years before the initiation of removal proceedings, those five justices expressed no support for the sweeping limitations imposed by the Ninth Circuit. Continue reading “Supreme Court Poised to Overturn Ninth Circuit Ruling Granting Bond Hearings to Criminal Aliens”

U.S. Makes Unprecedented Arrest of Chinese Government Official Accused of Economic Espionage

Brower_GregMoschellaWilliamE@2xFeatured Expert Contributor, White Collar Crime & Corporate Compliance

Gregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC, with William E. Moschella, a Shareholder in the firm’s Washington, DC office.

The Department of Justice (DOJ) recently announced an indictment charging a Chinese government official with attempting to steal trade secrets and other sensitive information from an American aerospace company.  This is not the first indictment of its kind.  In fact, in announcing the indictment, Assistant Attorney General John Demers remarked that “[t]his is not an isolated incident.”  He explained that this case “is part of an overall economic policy of developing China at American expense.”  What makes this case unique is that fact that the Chinese defendant is now in U.S. custody after being extradited from Belgium.  Continue reading “U.S. Makes Unprecedented Arrest of Chinese Government Official Accused of Economic Espionage”

Supreme Court Justices Signal Interest in Reconsidering Agency Deference in October Term 2018

SapperGuest Commentary

By Arthur G. Sapper, Senior Counsel with Ogletree, Deakins, Nash, Smoak & Stewart, P.C. in its Washington, DC office, where he practices both appellate litigation and administrative law, with an emphasis on OSHA matters.**

Chevron deference is increasingly coming under fire from the justices of the U.S. Supreme Court. That came through loud and clear in Pereira v. Sessions, issued on June 21, 2018. Not only did the approach of the majority opinion appear to be at odds with the Court’s past approach to Chevron deference, but Justice Kennedy stated in a concurring opinion that “it seems necessary and appropriate to reconsider . . . the premises that underlie Chevron and how courts have implemented that decision.” Justice Alito asserted in dissent that “the Court, for whatever reason, is simply ignoring Chevron.” Continue reading “Supreme Court Justices Signal Interest in Reconsidering Agency Deference in October Term 2018”

Pending High Court Case Tests Congress’s Authority to Detain and Deport Criminal Aliens

supreme courtThe US Supreme Court on October 3, 2017 will hear oral arguments for the second time in an important immigration case, Jennings v. Rodriguez.  The Court was unable to reach a decision the first time around, apparently because it divided 4-4 on how to resolve the case.  A key issue in the case is which constitutional body—Congress or the federal courts—gets to make policy governing the treatment of aliens convicted of serious crimes.

An unbroken line of Supreme Court precedent (including 1976’s Mathews v. Diaz) provides a ready answer to that question: immigration policy is “so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.”  Congress determined that aliens convicted of serious crimes should be deported and should be detained pending final removal; courts should not be second-guessing that determination. Continue reading “Pending High Court Case Tests Congress’s Authority to Detain and Deport Criminal Aliens”

Appeals Court Confounds Military Justice by Importing Foreign Law into the U.S. Constitution

DC CircuitSince the war against militant Islamists began in earnest in 2001, a cornerstone of U.S. national security policy has been to employ military commissions to hear criminal charges filed against al Qaeda leaders responsible for the September 11 (and subsequent) attacks. A decision last week by the U.S. Court of Appeals for the D.C. Circuit, al Bahlul v. U.S., throws that policy into disarray. It struck down a 2006 congressional statute permitting a wide variety of criminal charges to be brought before military commissions. Incredibly, the court invoked international law to do so, ruling that the U.S. Constitution only permits military commissions to consider those criminal charges that are accepted throughout the world as constituting violations of the international law of war.

It is questionable whether U.S. courts should ever look to international law for guidance when interpreting the U.S. Constitution. It is unfathomable for a court to hold (as did the D.C. Circuit) that the U.S. Constitution is controlled by international law, and to do so in a manner that significantly impedes the government’s ability to conduct trials before military commissions. The Obama Administration should ask the Supreme Court to overturn this ill-conceived decision. Continue reading “Appeals Court Confounds Military Justice by Importing Foreign Law into the U.S. Constitution”

A Simplistic Compliment Endures: The Roberts Court As “Pro-Business”

supreme court

Cross-posted at WLF’s Forbes.com contributor page

“The Roberts Court is pro-business.”  The Roberts Court “comes to the defense of business.”

Stories peddling this angle seem to be a compulsory part of reporting at the conclusion of each Supreme Court term. The completion of the October 2012 term is no exception. King & Spalding’s Ashley Parrish took strong exception to this characterization of the Court during Washington Legal Foundation’s annual end-of-the-term briefing this past Tuesday. The entire program can be viewed here.

The “pro-business” bromide is a trite and woefully simplistic byproduct of the need to label things. One could argue that the term implies judicial bias, i.e. deciding cases based on the nature of the litigant rather than on the law. It can also be seen as ideological or political in nature. If, for instance, Justice Ginsberg happened to be the Chief Justice at a time when the Court’s rulings favored free enterprise, would we be seeing stories about how pro-business the “Ginsberg Court” is? Further, has anyone seen the justices who rule against business litigants described as “anti-business”?

As an institution which for 36 years has sought to advance legal principles which support the conduct of free enterprise, Washington Legal Foundation views “pro-business” Court as a compliment. We’re pleased that in the nine cases in which we filed during the October 2012 term, seven resulted in victories for “business” litigants. Our perspectives on the law, on the judiciary’s limited role, and on constitutional protections for business entities are prevailing. But WLF should not be alone in applauding this Court’s rulings against plaintiffs’ lawyers, activist groups, and federal regulators. Businesses employ Americans, Americans invest in businesses, and our free enterprise system gives people of all backgrounds a fighting chance to succeed.

So if a label must be imposed, did the Roberts Court earn its “pro-business” stripes this term? If one looks strictly at the numbers, generally it did.

By our count, in the 28 cases which directly affected free enterprise, free enterprise “won” 21 and “lost” 7. Continue reading “A Simplistic Compliment Endures: The Roberts Court As “Pro-Business””

Supreme Court Observations: Clapper v. Amnesty International

supreme court

Cross-posted at Forbes.com’s WLF contributor page

The Supreme Court this week ruled that a group of American lawyers lack standing to challenge the 2008 law that expanded the U.S. government’s authority to engage in electronic surveillance of overseas aliens suspected of terrorism.  To hear the reaction of the ACLU and other civil liberties groups to the decision in Clapper v. Amesty International, one would think that the Supreme Court is abandoning the rule of law and abdicating its responsibility to oversee the activities of the Executive Branch.  Nonsense.  The Court simply denied a right to sue by individuals who concede that they have no evidence that they have been subjected to surveillance.  The decision is consistent with a long line of cases that have insisted on evidence of injury before a suit can go forward, particularly when the suit implicates national security concerns.

At issue are the 2008 amendments to the Foreign Sovereign Immunities Act (FISA).  The amendments permit the federal government to engage in overseas surveillance of suspected terrorists under limited circumstances.  But such surveillance is permitted under the FISA Amendments (FAA) only after the government has sought and obtained the consent of the FISA Court, a special court established to address national security issues.

On the day that the FAA was enacted, several lawyers and organizations (represented by the ACLU) filed a lawsuit seeking an injunction against surveillance conducted pursuant to the FAA.  They alleged that the FAA violated their First and Fourth Amendments rights as well as separation-of-powers principles.  Named as defendants were several senior Obama Administration officials, including Attorney General Eric Holder (whose authorization is required before any surveillance may be undertaken under the FAA).  Although the law does not permit American citizens to be targeted for surveillance, the plaintiffs expressed a fear that the government would end up overhearing some of their conversations with those foreigners who are being targeted. Continue reading “Supreme Court Observations: Clapper v. Amnesty International”