On October 3, 2017, the Supreme Court heard reargument in Jennings v. Rodriguez, a class-action lawsuit by aliens challenging their continued detention under civil immigration statutes without the benefit of an individualized bond hearing or determination that otherwise justified their continued detention. After several rounds of litigation in U.S. district court and the U.S. Court of Appeals for the 9th Circuit, the district court entered a permanent injunction in favor of the alien class members. Under the injunction, the government must provide any class member who is subject to “prolonged detention”—six months or more—with a bond hearing before an Immigration Judge (“IJ”). At that hearing, the government must prove by clear and convincing evidence that the detainee is a flight risk or a danger to the community to justify the denial of bond. On subsequent appeal, the Ninth Circuit affirmed all aspects of the injunction except with respect to aliens detained under § 1231(a) (aliens who have been “ordered removed”).
Although the Supreme Court heard argument on the case last term, it then requested supplemental briefing on the following questions and set the case for reargument this October: (1) Whether aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months; (2) whether criminal or terrorist aliens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and (3) whether, in bond hearings for aliens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community, whether the length of the alien’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months.
To discuss the case, we have Richard Samp, Chief Counsel of the Washington Legal Foundation.
Opening Arguments - OA 113: Our Cruel & Unusual Podcast Heads to International Waters
Today's episode is entirely Trump-free, and features a deep dive into the Cruel and Unusual Punishment Clause of the 8th Amendment. We begin, however, with a great listener question from Captain Patrick Dobbins, who wants to know the ins and outs of "international waters." Ask, and ye shall receive! After that, the guys break down the history of the 8th Amendment's prohibition on "cruel and unusual punishment" -- what does it mean, what kinds of punishments are prohibited, and when did it begin to apply to state prisons? You WILL be surprised. Then, we tackle with another listener question from Patron Cody Bond, who wants to know more about price discrimination, cake baking, and "Ladies' Night." Finally, we end with the answer to Thomas (& Andrew) Take the Bar Exam Question #45 regarding licenses for massage parlors. Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! Have us on your show! Show Notes & Links
- We first discussed the thorny nature of what constitutes property way back in Episode 22, "Libertarianism is Bad and You Should Feel Bad."
- If you'd like to read the U.N. "Law of the Sea" Treaty, get ready to settle in for a lengthy read!
- The two death penalty cases wediscuss are Furman v. Georgia, 408 U.S. 238 (1972) and Gregg v. Georgia, 428 U.S. 153 (1976).
- The Huffington Post records Antonin Scalia's 2008 interview with Nina Totenberg approving of putting people in the stocks.
- The case we discuss in the "C" segment outlawing "Ladies' Night" in California is Koire v. Metro Car Wash, 707 P.2d 195 (Cal. 1985).
Amicus With Dahlia Lithwick | Law, justice, and the courts - The Single Most Unremarked Win of the Trump Era
Dahlia is joined by Kristen Clarke, President & Executive Director of the National Lawyers’ Committee for Civil Rights Under Law to talk about the federal judiciary and how Donald Trump is speedily filling the vacancies on the federal bench.
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Opening Arguments - OA112: Who’s Afraid of the FCC?
Today's rapid-response episode begins with a discussion of a recent petition to the Supreme Court for certiorari filed in Evans v. Georgia Regional Hospital, and in particular, an amicus curiae brief submitted by 76 employers. How does this brief affect the future of gay rights in this country? Listen and find out! Next, our main segment looks at Donald Trump's recent threat to have the FCC "revoke NBC's license," and rewards you with a deep dive into what the FCC is and what it can and cannot do. (Hint: it cannot revoke NBC's "license.") Remember that we first discussed the FCC's "Common Carrier" regulatory authority back in Episode 64 and Episode 65 in evaluating the history of the net neutrality movement. After that, we answer two related listener questions from patrons John Funk and Secular Ewok about the attorney-client relationship and some crazy situations. Finally, we end with a new Thomas Takes the Bar Exam Question #45 about the Fifth and Fourteenth Amendment in the context of a business license. Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! Have us on your show! Show Notes & Links
- As background to this issue: we first discussed Hively v. Ivy Tech back in Episode 60, and then followed up with our discussion of Zarda v. Altitude Express in Episode 91.
- This is the cert petition filed by Evans.
- And this is the amicus brief filed by the 76 employers that you should definitely read.
- Here's the New York Times story about Trump threatening NBC.
- And, of course, you can read the FCC's description of its own regulations.
- The FCC derives its authority to regulate broadcast media from 47 CFR Chapter I, Subchapter C.
- Finally, you can click here to read Rule 1.2 of the Model Rules of Professional Conduct for lawyers.
Opening Arguments - OA111: Andrew Seidel Returns!
Today's episode marks the triumphant return of attorney Andrew Seidel of the Freedom From Religion Foundation to the show! We begin with an "Andrew Was Wrong" segment in which patron Kristen Hansen discusses how better to evaluate charities than the simple overhead metric the guys used in Episode 102. After that, Andrew Seidel joins us for two segments. First, the two Andrews discuss separation of church and state, including their recent disagreement as to whether FEMA funds will be spent rebuilding churches damaged by the recent hurricanes, as well as a return foray into gay wedding cakes discussed in Episode 105. Then, Andrew Seidel updates us regarding two recent victories by the FFRF. Finally, we end with the answer to Thomas (& Andrew) Take the Bar Exam Question #44 regarding witness testimony. Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! Have us on your show! Show Notes & Links
- If you like their work, please consider supporting the Freedom From Religion Foundation.
- We originally discussed the Masterpiece Cakeshop case in Episode 105.
- Here is the link to the major victory Andrew Seidel discussed in the "C" segment of the show.
Opening Arguments - OA110: Gun Control After Las Vegas & Two Trips To Yodel Mountain
Today's rapid-response episode begins with a discussion of the tragedy in Las Vegas and whether we can do anything about it. Before you dig in, you might want to take a refresher on our two-part masterclass on the Second Amendment in Episode 21 (Part 1) and Episode 26 (Part 2). Then, we take our first of two separate trips to Yodel Mountain with the recent revelation that the Trump DOJ disregarded decades of advice before issuing an opinion memo that authorized the (blatantly illegal) hiring of Jared Kushner. Is this really a Hillary Clinton story? Listen and find out! After that, we trek back up Yodel Mountain with the breaking news that the New York Attorney General's office was about to indict Donald Trump, Jr. and Ivanka Trump in 2012... until the AG received a visit (and a bag of money!) from Donald Trump's lawyer, Marc Kasowitz. Finally, we end with a new Thomas Takes the Bar Exam Question #44 about hearsay... and Thomas is joined by next week's guest, Andrew Seidel of the Freedom From Religion Foundation. Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! Have us on your show! Show Notes & Links
- Our two-part masterclass on the Second Amendment begins with Episode 21 (Part 1) and continues in Episode 26 (Part 2).
- After that, we discussed Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017), which we also covered in depth in Episode 47.
- You can read the Trump Administration's talking points on Las Vegas here.
- This is the breaking story by Politico about the DOJ ignoring precedent.
- The case Andrew discusses at length is AAPS v. Clinton, 997 F.2d 898 (D.C. Cir. 1993). It is being grossly misreported in the media; see, for example, this NPR story.
- This is 5 U.S.C. App. § 1, the Federal Advisory Committee Act.
- You can read the ProPublica story here that suggests that Donald Trump Jr. and Ivanka Trump were about to be indicted in 2012.
- The federal bribery law is 18 U.S.C. § 201; the relevant case is McDonnell v. U.S., 579 U.S. ____, 136 S.Ct. 2355 (2016); and you can check out our friend Randall Eliason's great analysis of the bribery statute here.
SCOTUScast - Endrew F. v. Douglas County School District – Post-Decision SCOTUScast
On March 22, 2017, the Supreme Court decided Endrew F. v. Douglas County School District, a dispute involving the Individuals with Disabilities Education Act (IDEA), which in exchange for federal funding requires that states provide a “free appropriate public education” (FAPE) to disabled children by means of a tailored “individualized education program” (IEP). In its 1982 decision Board of Ed. of Hendrick Hudson Central School Dist., Westchester County. v. Rowley (Rowley), the Supreme Court indicated that the FAPE requirement is satisfied when an IEP is “reasonably calculated to enable the [disabled] child to receive educational benefits.”
Endrew F. is a student with autism who received annual IEPs from the Douglas County School District from preschool through the fourth grade. At that point, however, his parents felt his progress to be stagnating, and when the school district proposed a similar IEP for the fifth grade, Endrew’s parents moved him to a specialized private school where he made significant progress. School district officials thereafter presented Endrew’s parents with a revised IEP, but the parents considered it little better than the previous version. The parents sought reimbursement of private school tuition costs by filing an IDEA complaint with the Colorado Department of Education. Their claim was denied, however, and the denial was affirmed by both a federal district court and the U.S. Court of Appeals for the Tenth Circuit. The Tenth Circuit concluded that under Rowley, the FAPE requirement was satisfied so long as the IEP conferred more than a minimal educational benefit.
By a vote of 8-0, the Supreme Court vacated the judgment of the Tenth Circuit and remanded the case. Writing for a unanimous Court, Chief Justice Roberts indicated that to meet its substantive obligation under the IDEA, a school must offer an IEP “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances,” a more demanding standard than the Tenth Circuit’s de minimis one. The Court then remanded the case for further proceedings under the corrected standard.
To discuss the case, we have Daniel Woodring, principal at Woodring Law Firm.
Endrew F. is a student with autism who received annual IEPs from the Douglas County School District from preschool through the fourth grade. At that point, however, his parents felt his progress to be stagnating, and when the school district proposed a similar IEP for the fifth grade, Endrew’s parents moved him to a specialized private school where he made significant progress. School district officials thereafter presented Endrew’s parents with a revised IEP, but the parents considered it little better than the previous version. The parents sought reimbursement of private school tuition costs by filing an IDEA complaint with the Colorado Department of Education. Their claim was denied, however, and the denial was affirmed by both a federal district court and the U.S. Court of Appeals for the Tenth Circuit. The Tenth Circuit concluded that under Rowley, the FAPE requirement was satisfied so long as the IEP conferred more than a minimal educational benefit.
By a vote of 8-0, the Supreme Court vacated the judgment of the Tenth Circuit and remanded the case. Writing for a unanimous Court, Chief Justice Roberts indicated that to meet its substantive obligation under the IDEA, a school must offer an IEP “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances,” a more demanding standard than the Tenth Circuit’s de minimis one. The Court then remanded the case for further proceedings under the corrected standard.
To discuss the case, we have Daniel Woodring, principal at Woodring Law Firm.
SCOTUScast - Moore v. Texas – Post-Decision SCOTUScast
On March 28, 2017, the Supreme Court decided Moore v. Texas, a habeas corpus dispute regarding the scope of the Supreme Court’s 2002 decision in Atkins v. Virginia that the execution of a mentally disabled person would violate the Eighth Amendment’s proscription on “cruel and unusual punishments.”
Bobby James Moore was convicted of capital murder and sentenced to death for fatally shooting a sales clerk during a failed robbery attempt. Finding Moore to be intellectually disabled under current medical diagnostic standards set forth in the latest editions of the American Association of Intellectual and Developmental Disabilities (AAIDD) manual and the Diagnostic and Statistical Manual of Mental Disorders, and invoking Atkins, a state court recommended granting Moore habeas relief in the form of life imprisonment or a new trial. The Texas Court of Criminal Appeals, however, rejected that recommendation based on its 2004 decision in Ex Parte Briseno, which relied on standards set forth in a predecessor manual to the AAIDD and a series of evidentiary factors. The Court of Criminal Appeals ultimately determined that Moore had failed to establish significantly subaverage intellectual functioning, and denied relief.
By a vote of 5-3, the Supreme Court vacated the judgment of the Court of Criminal Appeals and remanded the case. In an opinion authored by Justice Ginsburg, the Supreme Court held that the Court of Criminal Appeals had failed to comply with the requirements of the Eighth Amendment and Supreme Court precedents. By rejecting the habeas court’s application of contemporary medical guidance and clinging to the outdated and nonclinical factors set forth in Briseno, the Supreme Court indicated, the Court of Criminal Appeals had failed adequately to inform itself of the medical community’s diagnostic framework as required by the Supreme Court’s 2014 decision in Hall v. Florida. Justice Ginsburg’s majority opinion was joined by Justices Kennedy, Breyer, Sotomayor, and Kagan. The Chief Justice dissented, joined by Justices Thomas and Alito.
To discuss the case, we have Joanmarie Davoli.
Bobby James Moore was convicted of capital murder and sentenced to death for fatally shooting a sales clerk during a failed robbery attempt. Finding Moore to be intellectually disabled under current medical diagnostic standards set forth in the latest editions of the American Association of Intellectual and Developmental Disabilities (AAIDD) manual and the Diagnostic and Statistical Manual of Mental Disorders, and invoking Atkins, a state court recommended granting Moore habeas relief in the form of life imprisonment or a new trial. The Texas Court of Criminal Appeals, however, rejected that recommendation based on its 2004 decision in Ex Parte Briseno, which relied on standards set forth in a predecessor manual to the AAIDD and a series of evidentiary factors. The Court of Criminal Appeals ultimately determined that Moore had failed to establish significantly subaverage intellectual functioning, and denied relief.
By a vote of 5-3, the Supreme Court vacated the judgment of the Court of Criminal Appeals and remanded the case. In an opinion authored by Justice Ginsburg, the Supreme Court held that the Court of Criminal Appeals had failed to comply with the requirements of the Eighth Amendment and Supreme Court precedents. By rejecting the habeas court’s application of contemporary medical guidance and clinging to the outdated and nonclinical factors set forth in Briseno, the Supreme Court indicated, the Court of Criminal Appeals had failed adequately to inform itself of the medical community’s diagnostic framework as required by the Supreme Court’s 2014 decision in Hall v. Florida. Justice Ginsburg’s majority opinion was joined by Justices Kennedy, Breyer, Sotomayor, and Kagan. The Chief Justice dissented, joined by Justices Thomas and Alito.
To discuss the case, we have Joanmarie Davoli.
SCOTUScast - Coventry Health Care of Missouri, Inc., v. Nevils – Post-Decision SCOTUScast
On April 18, 2017, the Supreme Court decided Coventry Health Care of Missouri, Inc., v. Nevils. Under the Federal Employees Health Benefits Act of 1959 (FEHBA), the Office of Personnel Management (OPM) may contract with private carriers to provide federal employees health insurance. FEHBA expressly provides, however, that the terms of any such contract relating to “the nature, provision, or extent of coverage or benefits (including payments with respect to benefits)” will “supersede and preempt any State or local or law, or any regulation issued thereunder” relating to health insurance or plans. Here, OPM’s contracts with private insurance carriers provide, among other things, for reimbursement and subrogation. When Jodie Nevils, a former federal employee insured under a FEHBA plan offered by Coventry Health Care of Missouri (Coventry) was injured in an automobile accident, Coventry paid Nevils’ medical expenses. Nevils sued the driver who caused his injuries and obtained a settlement award. Coventry, invoking its OPM contract, then asserted a lien of approximately $6,600 against Nevils’ settlement proceeds to cover the medical bills Coventry had paid for Nevils. He paid off the lien, but then filed a class action suit against Coventry in Missouri state court, claiming the insurance company had unlawfully obtained reimbursement and noting that Missouri law does not permit subrogation or reimbursement in this context. The trial court granted judgment for Coventry on the grounds that FEHBA allowed Coventry’s contract terms to override state law prohibitions. The Missouri Supreme Court, however, reversed, relying on a “presumption against preemption” that excluded subrogation and reimbursement from FEHBA’s preemptive scope.
By a vote of 8-0, the Supreme Court reversed the judgment of the Missouri Supreme Court and remanded the case. In an opinion delivered by Justice Ginsburg, the Supreme Court held that Missouri’s prohibitions on contractual subrogation and reimbursement “relate to … payments with respect to benefits,” and are therefore preempted by FEHBA. The Court further held that FEHBA’s preemption regime comports with the Constitution’s Supremacy Clause, because the statute itself and not the OPM contract triggers federal preemption. All other justices joined Justice Ginsburg’s opinion for the Court except Justice Gorsuch, who took no part in the consideration or decision of the case. Justice Thomas filed a concurring opinion.
To discuss the case, we have George Horvath, a Post-Doctoral Fellow and Lecturer at Berkeley Law.
By a vote of 8-0, the Supreme Court reversed the judgment of the Missouri Supreme Court and remanded the case. In an opinion delivered by Justice Ginsburg, the Supreme Court held that Missouri’s prohibitions on contractual subrogation and reimbursement “relate to … payments with respect to benefits,” and are therefore preempted by FEHBA. The Court further held that FEHBA’s preemption regime comports with the Constitution’s Supremacy Clause, because the statute itself and not the OPM contract triggers federal preemption. All other justices joined Justice Ginsburg’s opinion for the Court except Justice Gorsuch, who took no part in the consideration or decision of the case. Justice Thomas filed a concurring opinion.
To discuss the case, we have George Horvath, a Post-Doctoral Fellow and Lecturer at Berkeley Law.
Opening Arguments - OA109: The GOP Tax Plan’s Big Lie (& More!)
Today's show discusses: A) The Jones Act and Puerto Rico; B) The GOP's tax plan; and C) Oral arguments in the Zarda v. Altitude Express case we discussed back in Episode 91. Support us on Patreon at patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at openarguments@gmail.com Direct Download