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  • Writer's pictureAnastasia Boden

Keeping up with the Court: Black Friday Edition


Welcome to the Black Friday edition of SCOTUSLadies! Thank you for pulling yourself away from the Supreme Court gift shop’s thrilling sales (why are there no Stephen Field ornaments?) and reading our little blog. As a thank you, we’re offering this preview of next week’s oral argument for 50% off our regular price.


This week the Court will hear four oral arguments and one of them is hotly anticipated in the separation of powers world. Cue the enemies-of-the-administrative-state bat signal!



AI is not quite there yet, folks. But that one’s better than Bing’s first try at deciphering my instructions, below.



I'm thinking about making this image into a shirt and selling it on SCOTUSLadies’s merchandise page.


Let’s start with Monday.


On cyber Monday, the Court will hear two consolidated cases, Brown v. United States and Jackson v. United States, involving the definition of a “serious drug offense” under the Armed Career Criminal Act (ACCA). Yes my friends, the government’s trillion-dollar-resource-sucking-life-ruining-disparate-impact-producing-futile-campaign-to-prevent-people-from-putting-stuff-into-their-own-bodies, also known as the War on Drugs, drags on. But I digress.


ACCA mandates that felons who possess a firearm in violation of federal law are normally subject to a maximum 10-year sentence. But if the felon has at least three “serious drug offenses,” the minimum sentence increases to 15 years.


Courts determine whether state convictions qualify as serious drugs offenses by comparing the state law to its federal counterpart. If the state law is the same as, or narrower than, its federal counterpart, any conviction will qualify as a serious drug offense under ACCA. If it’s not the same or broader than its federal counterpart, it will not. But how should a court make that comparison when federal drug policy changes in between the time the defendant is convicted of the state drug offense and the time he or she is being sentenced under ACCA for possessing a firearm?


If the sentencing court compares the state law with federal law as it used to exist (at the time of the state conviction or the time of the federal offense), the state conviction may qualify as an ACCA predicate. If the sentencing court compares the state law to federal law as it stands at the time of sentencing, the state conviction will not qualify. That decision means the difference between a ten-year maximum and a fifteen-year minimum.


Take Brown’s case. In November 2016, Brown was arrested for unlawfully possessing a firearm. Shortly after, Congress narrowed the definition of marijuana and decriminalized “hemp,” but some states (including Pennsylvania) did not follow suit. Brown had previously been convicted of possession of marijuana with intent to deliver in Pennsylvania. Because the sentencing court compared the elements under his state conviction with the version of federal law in effect at the time of his federal firearm offense (rather than at the time of sentencing), he was given the mandatory minimum. Had the court looked at federal law at the time of sentencing, he would have been subject to the maximum instead.


Federal courts are split on ACCA: the Fourth Circuit compares the prior state conviction with federal law at time of federal firearm sentencing. The Third, Eighth, and Tenth Circuits compare the prior state conviction with federal law at time of the federal firearm offense. And the Eleventh Circuit compares the prior state conviction with federal law at the time of the state offense.


The result is vastly different sentencing schemes mere miles away from each other. As Brown’s petition notes: “Ninety miles separate the federal courthouses in Philadelphia and Baltimore. For felon-in-possession offenders in Philadelphia, those 90 miles can mean up to fifteen additional years behind bars because the courts of appeals have split over how to apply the Armed Career Criminal Act.” Powerful phrasing, and one can see why the Court took up the case.


On Tuesday the Court will hear McElrath v. Georgia and Wilkinson v. Garland.


File McElrath under my rather bulky, overflowing folder called “Wicked Procedural Games.”


Damian McElrath was tried under Georgia law for malice murder, aggravated assault, and felony murder. The jury found him not guilty of malice murder by reason of insanity, but guilty (though mentally ill) of felony murder and aggravated assault. McElrath appealed, arguing that the verdicts were not just inconsistent, they were “repugnant” (ie. mutually incompatible), since the jury found him insane for purposes of one crime and not insane for purposes of another. Inconsistent verdicts are permitted under Georgia law; repugnant verdicts are not.


The Georgia Supreme Court agreed with McElrath that the verdicts were repugnant since a person cannot be both insane and not insane during one episode against the same victim, and it therefore vacated both verdicts. It then sent the case back down for retrial.

In the trial court, McElrath argued that the Double Jeopardy Clause prohibited the state from trying him again on the malice murder charge since he had already been tried and acquitted. The trial court and Georgia Supreme Court disagreed, ruling that repugnant verdicts are not verdicts at all. Instead, they are valueless and void because there is “no way to decipher what factual finding or determination” the verdicts represent, particularly on the critical issue of McElrath’s sanity. Because McElrath was no more found not guilty of malice murder than he was found guilty of felony murder and assault, his trial was akin to a mistrial rather than a termination of jeopardy.


Now at the United States Supreme Court, McElrath argues that “[n]o matter what label a court gives it, a so-called repugnant verdict is simply a particular type of inconsistent verdict” and inconsistent verdicts, like any verdict, may not be retried. The Supreme Court has long ruled that Double Jeopardy Clause is absolute and that acquittals are final and unreviewable. Once a defendant secures an acquittal, McElrath says, he cannot be subjected to a second trial without violating the Fifth Amendment.

The brief cited the unlikely source of William Shakespeare (“What’s in a name? [T]hat which we call a rose by any other name would smell as sweet.”) In other words, this repugnant verdict smells as sweet as an inconsistent one.


A still of Claire Danes as Juliet and Leonardo DiCaprio as Romeo in Baz Luhrman's take on the epic saga.
But, soft! what light through yonder window breaks? It is justice, and the Constitution is the sun.

I always find it interesting to contrast the framing and tone of the petitioners’ and respondents’ briefs. While petitioner’s brief sticks to the law, Georgia’s dives right into the details of the crime, bringing them up in the first sentence of the question presented. The state notes that McElrath killed his adoptive mother by stabbing her over 50 times, presumably driving home the point that the state really wants to try him again.


While McElrath argues that the lower court’s holding will strip defendants of a fundamental constitutional right, Georgia argues that overturning the decision below will undermine state sovereignty by “open[ing] the doors for federal review of all kinds of state criminal procedural rules.” (Whether Georgia is right or wrong on the merits, I don’t find this argument particularly persuasive. The Fourteenth Amendment was intended to open up all sorts of state rules to federal judicial review, and don’t you forget about it!).


The state also argues that McElrath wants to “have his cake (erase the purported convictions) and eat it too (keep the purported acquittal),” but in future cases where there is only a conviction, McElrath’s rule will actually punish criminal defendants by preventing them from getting a retrial and sticking them with a conviction. It also argues that judges will be less likely to protect criminal defendants if they know that labeling a verdict repugnant will mean the state can’t try the defendant again.


I didn’t see a lot of text or history argued in the briefs, so it will be interesting to see how the justices come to a decision.


Later that day in Wilkinson, well-known #AppellateTwitter lawyer Jaime Santos is making her Supreme Court debut in a case involving the reviewability of certain decisions that come up in immigration removal proceedings.


Under the Immigration and Nationality Act (INA), the Attorney General can cancel removal of a nonpermanent resident if the resident satisfies various criteria, including “that removal would result in exceptional and extremely unusual hardship” to the applicant’s immediate family member who is a U.S. citizen or lawful permanent resident.


Federal courts can review “questions of law” that arise in removal proceedings, including the application of a legal standard to undisputed facts, but not much else. In this case, the Court must decide whether the Board of Immigration Appeals’ determination that a set of facts does not qualify as “exceptional and extremely unusual hardship” is a mixed question of law and fact reviewable by federal courts.


Situ Wilkinson was born in Trinidad and Tobago but fled to the United States on a tourist visa after being threatened and attacked by authorities. Scared to return to Trinidad and Tobago, he has lived a quiet life here, eventually having a son (M.) who has significant health problems and lives his mother in New Jersey. By all accounts Wilkinson is a helpful member of his local community, and he works hard to support his son, who he sends half his earnings and visits each weekend. In July 2019, Wilkinson was working on repairs to a house when police arrested him after finding drugs inside the house. The drug charges were ultimately withdrawn, but he was arrrested and detained by federal immigration officials for overstaying his visa.


Wilkinson applied for cancellation of removal on the basis that his removal would be an exceptional and extremely unusual hardship for his son, who was just six years old at the time. Despite hearing extensive evidence that Wilkinson provides “everything” for his very sick son, that the mother of the child suffers from depression, does not work, and has difficulty caring for her child, and that the son was having a difficult time at school and at home due to his father’s detention, the immigration judge ruled that the facts did not rise to the level of “exceptional and extremely unusual hardship.” The Board affirmed without writing an opinion, and the Third Circuit ruled that it had no jurisdiction because a hardship determination is a “discretionary judgment call.”


My cards are on the table. I favor judicial review.


On Wednesday, the Court will hear the much-anticipated Securities and Exchange Commission v. Jarkesy, which is one of a few big administrative law cases the Court has taken up this term. Though the Court sometimes seems to shy away from substantive challenges these days (cough, cough, my case arguing that Louisiana’s law limiting the number of care providers for special needs children for the sole reason of conserving governmental resources is arbitrary and irrational), it has been less reluctant to take on structural separation of powers or procedural challenges to laws, like those often presented in administrative law cases.



(Disclaimer: my employer, the Cato Institute, filed an amicus brief in this case in support of Jarkesy.)


George Jarkesy was one of the Security and Exchange Commission’s first targets after it secured power through the Dodd-Frank Act to seek penalties from any person, not just those regulated by SEC. Rather than trying him by jury in an Article III court, SEC chose to prosecute him in-house before its own administrative law judge (I wonder why that might be.)


As Cato’s amicus brief details, those in-house proceedings lack vital due process protections (no jury, relaxed evidentiary rules, guilt is determined by preponderance of the evidence) and are heard before ALJs who are impermissibly enmeshed with the enforcement staff. Worse yet, all appeals are heard before the Commissioners, the same people who authorize the enforcement actions in the first place and have therefore prejudged the evidence. Either side can appeal to a federal court of appeals, but review is limited to SEC findings unsupported by “substantial evidence” in the record.


There is a dog’s breakfast of questions presented (I will resist the urge to ask AI to generate an image of the “dog’s breakfast”):

  1. Whether the SEC’s in-house enforcement proceedings seeking civil penalties violate the Seventh Amendment;

  2. Whether Congress’s delegation of authority to the SEC to choose whether to enforce securities laws through an agency adjudication or in district court violates the nondelegation doctrine; and

  3. Whether the administrative law judges’ for-cause removal protection in agencies whose heads enjoy for-cause removal protection violates Article II.

If you want to read more about why the right to a jury trial was so important to the Founders (including historical anecdotes of those juries protecting individuals from unfair prosecutions), you can read Cato’s amicus brief. The other two issues (non-delegation and removal) have been targets of those seeking to push back against the growth of the behemoth administrative state for some time. Congress is all too eager to delegate away its power to administrative agencies so it can avoid any political blowback. Critics of this regime argue that in many cases, Congress is impermissibly delegating its legislative power to the executive branch in violation of Article I and the Constitution’s separation of powers. This non-delegation doctrine has really only enjoyed one good year at the Court, but some justices (namely, Justice Gorsuch) have recently signaled their willingness to reinvigorate it.


These bureaucrats are themselves insulated from political accountability even from the President thanks to various removal protections they enjoy. But when Congress limits the President’s ability to fire who he or she wants, it undermines his or her ability to execute the laws and the political accountability the President should hold as Chief Executive. After all, the buck stops with the President. Here, there’s double-layer of removal protection, since ALJs can only be removed “for-cause” and the agency heads, too, enjoy the same protection.


Okay, that’s enough administrative state talk for today. Back to scanning websites to find the best deal on RBG replica jabots. One can never have too many!


 

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