Supreme Court

In Department of Homeland Security v. Regents of the University of California the Supreme Court will decide whether the Department of Homeland Security’s (DHS) decision to end the Deferred Action for Childhood Arrivals (DACA) program is judicially reviewable and lawful. Three lower courts have concluded ending the policy is both reviewable and likely unlawful.  

DACA was established through a DHS Memorandum during the Obama presidency. The program allowed undocumented persons who arrived in the United States before age 16 and have lived here since June 15, 2007, to stay, work, and go to school in the United States without facing the risk of deportation for two years with renewals available.

DHS rescinded DACA in September 2017 after receiving a letter from the Attorney General stating the program was unconstitutional and created “without proper statutory authority.”

In Mitchell v. Wisconsin the Supreme Court held that generally when police officers have probable cause to believe an unconscious person has committed a drunk driving offense, warrantless blood draws are permissible. The State and Local Legal Center (SLLC) filed an amicus brief arguing for this result.

By the time the police officer got Gerald Mitchell from his car to the hospital to take a blood test he was unconscious. Mitchell’s blood alcohol content (BAC) about 90 minutes after his arrest was 0.222%.

Wisconsin and twenty-eight other states allow warrantless blood draws of unconscious persons where police officers have probable cause to suspect drunk driving.

In Rucho v. Common Cause the Supreme Court held 5-4 that partisan gerrymandering claims are non-justiciable—meaning that a federal court cannot decide them.

Partisan gerrymandering is the practice of drawing legislative districts to benefit one political party. In Davis v. Bandemer (1986) a majority of the Supreme Court held that partisan gerrymandering cases are justiciable. In that case and since then the Court has been unable to lay out a standard for when partisan dominance “is too much.” In Rucho v. Common Cause the Supreme Court announced it will stop trying.

Chief Justice Roberts wrote the majority opinion which his conservative colleagues joined (Justices Thomas, Alito, Gorsuch, and Kavanaugh). Unsurprisingly, the Court emphasized the role of state legislatures in districting:  “The Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress.”

Chief Justice Roberts joined his more liberal colleagues (Justices Ginsburg, Breyer, Sotomayor, and Kagan) concluding the reasons Commerce Secretary Wilbur Ross gave for adding the citizenship question to the 2020 census were pretextual in violation of the Administrative Procedures Act (APA).

Presumably, Secretary Ross will now be able to offer different reasons for why he wanted to add the citizenship question. If he chooses to do so those reasons may also be challenged in court as pretextual or discriminatory. If he chooses to offer no different reasons, presumably, the 2020 census for won’t contain a citizenship question.    

In Tennessee Wine and Spirits Retailers Association v. Thomas the Supreme Court held 7-2 that Tennessee’s law requiring alcohol retailers to live in the state for two years to receive a license is unconstitutional. The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing the law was constitutional.  

Two constitutional provisions are at issue in this case. The dormant Commerce Clause prohibits state laws that unduly restrict interstate commerce. Both parties agree that if Tennessee’s durational-residency requirement applied to anyone wishing to sell anything other than alcohol it would violate the dormant Commerce Clause.

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