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  • Writer's pictureAnastasia Boden

One Mega Supreme Court Round-up to Rule them All

Gentle reader,


I know I’m late. I know this very well. I know this because I feel the crushing pressure of Elizabeth’s expectations every single day that I fail to post on (I’m sorry Elizabeth!). But trust me, reader, I have good reason. Lady WhistleSCOTUS was busy! And no, I wasn’t just watching Bridgerton on repeat.


In return for your patience, I am giving you one, huge, major Supreme Court round up to rule them all! (Mind the typos; some thoughts are borrowed from my prolific X FKA Twitter account). This is a long one. I may be a day late, but I am never a British pound short. Let’s begin.


A fortnight ago, the Court decided the Trump Too Small case, Vidal v. Elster.


As a refresher:


Some years ago, Marco Rubio observed that Donald Trump had “small hands,” thus spurring a flurry of memes, late night jokes, and paraphernalia.



One enterprising American, Steve Elster, sought to trademark the name “Trump too small” and make t-shirts out of it. The problem is that federal law prohibits anyone from seeking a trademark that uses the name of another person without their permission. Elster argues that this restriction “makes it virtually impossible to register a mark that expresses an opinion about a public figure,” and results in one-sided speech that is flattering to public officials. He argues it’s therefore an unconstitutional viewpoint restriction on speech that violates the First Amendment.


The government, by contrast, argues that the law is a viewpoint neutral condition on a government benefit because 1) the law doesn’t explicitly ban viewpoints of any kind, it bans all trademarks that include names of living people without their permission, and 2) Elster can still use the phrase “Trump too small,” he just can’t trademark it. That is, he can still say the phrase, he just can’t get the benefit of a government trademark. The government further says that its interest in the law is not protecting officials from criticism, but protecting all people from having their name commercially appropriated without consent: “The government may reasonably decline to reward, or to associate itself with, such appropriation of another’s identity.”


Elster’s case follows the Court’s recent decisions in Matal v. Tam, and Iancu v. Brunetti, which struck down restrictions on “disparaging” marks and “immoral” or “scandalous” marks respectively. In both cases, the Court left open the question of how to evaluate viewpoint neutral trademark rules. Elster insists the rules are restrictions on private speech, meaning they are subject to strict scrutiny; the government says they are merely neutral conditions on government benefits, meaning they must only be reasonable.


At oral argument, the justices weren’t fully buying either side’s argument. Elster’s attorney failed to convince some of the justices that the rule is a restriction on speech, let alone a viewpoint-based one. As Justice Thomas noted, Elster is free to “make the shirts or mugs or whatever he wants to make” so long as they are unregistered, so “what speech precisely,” he asked, “is being burdened?” In fact, it’s Elster who is trying to restrict speech by obtaining a mark and preventing others from making shirts with the same political statement.

Yet neither did many of the justices want to call the restriction a condition on a government benefit. Referencing his opinion in Matal v. Tam (which invalidated a restriction on “disparaging” trademarks), Justice Alito said that a “governmental benefit” usually refers to a monetary benefit. Extending the definition to the trademark program would have implications for all sorts of government programs, since “just about every government service requires the expenditure of government funds.” Police and fire protection, courts, public parks, highways, and the innumerable governmental registration schemes, like driver’s licenses, motor vehicle registration, hunting, fishing, and boating licenses or permits, would all be implicated and the government would have far more leeway to curb related speech. As Justice Gorsuch observed, the government’s theory meant that just “because the government gives [any of these things] to you, it can do whatever it wants with [them].”


Justices Amy Coney Barrett and Clarence Thomas were especially concerned about the theory’s implications for copyright law, where it might actually have a meaningful impact on speech. Justice Barrett asked about somebody who “want[s] to write a book called ‘Trump Too Small’ that details Trump's pettiness over the years” (Nb. !!!) and “argues that he's not a fit public official.” Under the government’s theory, it could restrict that author from getting a copyright for such a book and that restriction would be subject only to rational basis review---the lowest level of judicial scrutiny---on the theory that copyright is merely a “government benefit” and therefore all restrictions are subject to minimal scrutiny.


Justices Gorsuch and Kavanaugh suggested at argument that rather than defining the right at issue (right to speech or right to government benefit) or determining the level of scrutiny that applies, courts should look at historical practice---thus demonstrating the continuing influence of Bruen). The two justices would let history be the judge… literally. In a rather extended (and interesting) history lesson, Justice Gorsuch noted that content-based restrictions have long existed in the realm of trademark, and that alone is sufficient to indicate their constitutionality.


I noted at the time:


The problem with that approach (once again, for those in the back!) is that the Constitution enacts principles, not practices. I, for one, don’t want to be beholden to laws merely because they existed at the time the Constitution was ratified. We’re not bound by what the framers did; we’re bound by what they said in the Constitution. While historical practice can be useful to determining the meaning of the words in the Constitution, it’s not determinative. The meaning of words is locked in at the time of ratification, but the application of those concepts can change over time. The trademark restriction might be a perfectly constitutional law, but that’s not solely because such restrictions existed in the 19th (or even 18th) century.


Justice Sotomayor had an alternative approach. She too didn’t want to be “straightjacketed” by labels, so she argued that judges should just focus on whether the government had a rational basis for its action. Anyone familiar with that test in practice knows that it’s a toothless one that’s dangerous to liberty.

Justices Kagan and Jackson suggested using a “reasonableness” standard that’s more robust than rational basis review but less demanding that strict, or even intermediate scrutiny. That may be better from a liberty-favoring standpoint than Justice Sotomayor’s, but it’s also made up.


Even after argument the fractured oral argument, it seemed like the justices were likely to uphold the restriction, first because it wasn’t actually viewpoint based (after all, it bans people from trademarking other people’s names regardless of whether the overall message is positive or negative), and second because it was aimed at the totally reasonable goal of protecting people from having others hijack their identity and trademark it.


And indeed, that was exactly the case. In a unanimous decision authored by Justice Thomas, the justices upheld the law. But it got a little tricky, since Justices Roberts and Kavanaugh joined the opinion except for Part III and then joined in a concurring opinion; Justice Barrett joined Parts II-A and II-B of the majority opinion and wrote a concurrence joined in various parts by Kagan, Sotomayor, and Jackson, and Justice Sotomayor wrote a concurrence joined by Justices Kagan and Jackson.


Whatever their disagreements, all of the justices seemed to agree the law was viewpoint neutral. And while content-based restrictions on speech usually face strict judicial scrutiny, trademark law is inherently a content-based endeavor; it therefore makes little sense to subject all trademark restrictions, they said, to such demanding scrutiny (see how easy it is for judges to justify jumping from tier to tier of judicial scrutiny?).


Justices Thomas, Alito, and Gorsuch largely relied on the history and tradition of similar restrictions in trademark law. Interestingly, though, Justice Kavanaugh (joined by Chief Justice Roberts) wrote separately to say that they believe a law might survive even if it lacked a historical analogue.


Justice Barrett wrote a spirited concurrence calling out the majority for doing history wrong and using the wrong test. Even if the majority’s historical “evidence were rock solid,” she doesn’t think “hunting for historical forebears on a restriction-by-restriction basis is the right way to analyze" the question. In her view:


I would adopt a standard, grounded in both trademark law and First Amendment precedent, that reflects the relationship between content-based trademark registration restrictions and free speech. In my view, such restrictions, whether new or old, are permissible so long as they are reasonable in light of the trademark system’s purpose of facilitating source identification.


(Nb. This is such a preview of Rahimi!)


Justice Sotomayor (joined by Justices Kagan and Jackson) wrote an even more spirited concurrence saying a history and tradition test will make a mess, just as Bruen has done in the lower courts. Justice Thomas, she says, thinks applying a means-end test is subjective, when in fact, that's just what judges do. She had a rather good bit here:

As you can see, this case continues what is a hot and raging debate within the constitutional law world regarding tiers of scrutiny, judicial scrutiny in general, historical analogues, etc. Who knew the "Trump too small" case would be such a microcosm for important things percolating in constitutional law?


[[FWIW, I am as free speechy as they come, and I know many of my friends in the liberty movement wrote briefs in this case saying the law is viewpoint discriminatory, but I tend to agree here with all of the justices that the trademark restriction was not viewpoint based and was a permissible restriction aimed at protecting people from having their identity appropriated. Elster still can sell his t-shirts, he just can't stop other people from selling t-shirts containing a phrase he didn’t even make up. If anything, it was Elster who wanted to prevent other people from speaking.]]


Now, let’s move on to Rahimi, where you can see this Originalism discussion really come to a head!


To get to Rahimi we have to start with Bruen and why I have always maintained it was wrong. Bruen asked whether NY’s ban on possessing a firearm without a special permit violated the Second Amendment. Usually, when deciding whether a law violates a constitutional right, the Court applies some level of scrutiny to decide whether the law is related enough to some overriding purpose. But in Bruen, the Court scrapped the usual means-end inquiry and applied a historical analogue test. Under that test, a restriction on the Second Amendment will only be upheld if there is a history and tradition of that restriction. As I mentioned at the outset, I always thought this test was wrong because the Constitution enacts principles, not policies. Historical practice is important to determining the meaning of the Constitution, but it doesn’t determine which practices are constitutional. 


So this term we get Rahimi, a case involving perhaps the worst Second Amendment plaintiff you could find. Rahimi commits violence against his girlfriend, which gets him a restraining order. Then he threatens another woman and engages in at least five other shootings (shooting out his window during road rage, etc). Police get a search warrant and find guns and a restraining order. Rahimi is then indicted under a Fed law that prohibits people subject to restraining orders from possessing a firearm so long as the order deems the person a threat to safety or explicitly prohibits the use of force. Rahimi argues that the statute violates the Second Amendment because there’s no historical twin.


In an 8-1 decision, the Court ruled that Bruen doesn’t require a twin, but instead a sufficiently analogous law taking into account the why and how of the historical analogue. Previous SCOTUS cases, wrote CJ Roberts, were not meant to suggest the Second Amendment required “a law trapped in amber.”


There’s a tradition of stopping individuals who threaten physical harm to others from misusing firearms. Surety laws (which required a bond for dangerous people) and going armed laws (which prohibited people from going armed to terrify) applied to people deemed a threat.

Roberts also says this is a challenge to the law on its face, not a particular application. The lower court looked for all the ways the law might be unconstitutional rather than constitutional, and that was wrong. (Don't get me started on the mess that is facial v. as applied).


The majority opinion ends by rejecting the government’s argument that ppl can be disarmed merely because they are “irresponsible.”


Justice Sotomayor concurs, joined by Kagan, basically just to say all the reasons she thinks the dissent is wrong. She says that according to Justice Thomas, if a problem has persisted throughout history, the means of controlling the problem can never change, even if the weapons change. Bruen, she says, was “not meant to suggest a law trapped in amber” (the Court really took this line and ran with it, amirite?). Justice Sotomayor would go back to means-ends scrutiny.


Gorsuch also concurs, pointing out that nobody really blinks when we apply the Bruen test to other rights, like the right to confront witnesses at trial. We understand that’s an inviolable right cabined only by historical exceptions, and if the legislature tried to limit that right and courts applied means-end scrutiny to see if the limitation was constitutional, we’d inherently understand that’s bad. [[There's something here that I find interesting & need to think over more.]]


Justice Gorsuch says Bruen is a better approach than means-end scrutiny because it’s a cabined approach and more objective than not. Judges have no authority to question the ratifiers' judgment, and the Constitution’s directions are “trapped in amber.”


Justice Gorsuch leaves open the question of whether the same law would be constitutional as applied to people where there was no finding of dangerousness. Nb. This was the subject of Cato’s brief when I worked there: you can deprive dangerous people of guns, but the law on its face doesn’t actually only apply to dangerous ppl. In fact, it might sometimes apply to victims of domestic violence. But the Court didn’t want to go there—since Rahimi had in fact been found dangerous.


Justice Kavanaugh also concurs saying that judging is either a question of history or policymaking, and history is better. Then he gives us a a little mini-treatise on how and how not to use history. I liked this bit:



But then, Kav says THIS. And HOW are we comparing the travesty that is PLESSY to ADKINS? Just say no to gratuitous Lochner shaming. Economic liberty is a right that is just as deeply ingrained in this nation’s history and tradition as any other right.


Then Justice Kavanaugh attacks tiers of scrutiny, whereby judges scrutinize some laws rlly hard (called strict scrutiny) & others laws not much at all (called rational basis scrutiny). He's right to say giving diff rts diff protection is arbitrary, but he goes off on means-end scrutiny altogether.


IMHO, means-end scrutiny is legitimate bc it determines the contours of the right at issue and whether the government is actually protecting health or safety through its police power. I don't want to give this endeavor up in favor of looking solely at historical practices. Sigh.


Some have observed that the majority’s approach actually looks a little bit like means-end scrutiny, since it compares the intended outcome as well as the means of the historical analogue to its modern day counterpart. But that’s not quite means-end scrutiny. It’s means and ends scrutiny. Nay, it’s means and end scrutiny—totally determined by looking at history rather than doing any judging. And it’s analytically wrong.


Enter Justice Barrett.

Justice Barrett concurs to emphasize that history is useful for telling us the meaning of the text, but we shouldn’t become overly reliant on history in and of itself. She also correctly notes:


Yes, yes, yes!

Justice Jackson also concurred.


Justife Jackson: if I would’ve been on the Court during Bruen, I would’ve dissented!


She also notes she thinks Bruen has been difficult for courts to apply. That may be true, but it might also be true that real constitutional adjudication is more difficult than applying value judgments. I also note that history is for the parties to argue, not judges to find.


Now Justice Thomas's dissent. Interesting rhetorical fact: he downplays Rahimi’s crimes. Anyone who knows Thomas knows he loves to play up a crime. But this is what lawyers do in legal writing. Play up. Play down. It’s called rhetoric, folks.


Thomas says historical analogues must impose a comparable burden that is comparably justified. The government’s analogues fail bc they were less burdensome than total disarmament. (So Rahimi should’ve been subjected to a surety law instead? Eek)


Thomas concludes that government could've prosecuted Rahimi for his threats & what not, it just can’t categorically disarm him when he's never been convicted of a crime & instead “only” found dangerous. It’s pretty clear Thomas is concerned with people being totally disarmed.


People have made a lot out of fact that the majority says Bruen didn't mean what its author says it meant-like that's some sort of meta critique of Originalism. I don't make anything of it. This is how law works--we hammer out the details. And committing to original public meaning doesn't mean that everyone agrees what that meaning is. I think it's great that Originalism continues to be debated, even among the justices. It's an endeavor aimed at becoming more perfect.


In sum, Justice Barrett and I are right: let's not become overly reliant on historical analogues, which inform meaning of text but don't trap practices in amber (yeah I said it). Also, IMO, means-end scrutiny is okay when done correctly.


Also, Professor Barnett is right, and I shall join the crusade to combat this perception.


Ok, now for some levity: tax law!


In 2005, Charles & Kathleen Moore invested $40,000 for a 13% share of their friend's business, KisanKraft. They were inspired by its mission: providing tools to small farmers in India to help them better their lives. The Moores have never received a penny from their investment and they did not expect to.


Nor can the Moores compel the company to disburse any profits, since they are minority shareholders. Yet they owe a hefty tax bill under a law that considers the corporation’s past earnings to be their income---again, even if they never. received. a penny.   


Why? Well, as part of a law that restructured the way that Congress taxes American-owned foreign corporations, in 2017, Congress passed a one-time “Mandatory Repatriation Tax.” The MRT considers certain past income of these corporations to be the current income of 10%+ shareholders. And it meant that the Moores now owed $15,000 in taxes based on KisanKraft’s old earnings, even though they had never received a penny of it! (how many times can I say penny?)


The question at the Supreme Court was whether the MRT is constitutional. You see, there are limits on Congress’s ability to tax. Congress can impose “direct” taxes (think property taxes) or “indirect” taxes (think use taxes), but direct taxes are much harder to pass because they have to satisfy a complicated formula called apportionment.


This was a deliberate choice by the Founders to make direct taxes difficult to pass. Direct taxes often apply to you for just existing, whereas use taxes can be avoided by avoiding the use. And anyway, they wanted states to be in charge of direct taxes.


In 1895, SCOTUS called an income tax a “direct” tax, thus imperiling Congress’s ability to tax income. So Congress then passed the 16th Amendment, which exempts income taxes from apportionment.


The upshot is that the MRT is not apportioned, and MOST OF US (foreshadowing) think its a direct tax. So if it’s going to be constitutional, it has to qualify as an income tax free from the apportionment requirement a la the 16th Amendment.


The government (of course) claims the MRT is an income tax. The Moores say it can’t be a tax on income, because they never got any income! Instead it’s a direct tax on their property and needs to be apportioned. Because it’s not apportioned, the MRT is unconstitutional.


Sidebar: I debated this case with Akhil Amar & he got quite heated when I suggested the Founders wanted to make it difficult to pass direct taxes. In fact, he invoked, and I quote, “every ounce of [his] authority as the Sterling Professor of Constitutional Law and… [the author of] many books” to say that I was flat wrong. But, as you shall see, I think my view was vindicated. It’s also kind of common sensical. But I digress…


Amar also kept insisting that the MRT was an indirect tax. To which I replied:



Why are people so interested in this one time tax? If an income tax doesn’t require realization, then Congress can impose a wealth tax (a tax on assets/net worth on paper).



In a fractured decision, the Court totally side-stepped the issue. Justice Kavanaugh, writing for the Chief, Justices Kagan, Sotomayor, and Jackson wrote that the Court need not decide whether realization is required, because here, the corporation realized income. So the REAL question is whether Congress can attribute that income to the Moores.


Justice Kavanaugh says it can. Congress has long taxed pass-through income, like taxes on partnerships (where the partners are taxed), or S-Corps (where the owners consent to being taxed rather than the corp itself), or where controlling shareholders or shareholders of closely held foreign corps are taxed, etc. So this is just another case of Congress rationally assigning realization to the shareholder.


He says don’t be scurred, tho, because Due Process Clause would prevent truly irrational assignments.


Well, I know what rational basis looks like in practice folks, and might I tell you that is a very cold comfort indeed.


The majority went out of its way to stress the narrowness of the holding, how it doesn’t answer whether realization is needed and how this opinion really just applies to the MRT and nothing else and no other question or law ever, ever, ever.


Justice Jackson wrote separately to explicitly say that she would go ahead and say that realization is NOT needed. And anyway, she doesn’t even necessarily think this is a direct tax [[ooh Amar got one! I predicted it! But no cite : ( ] Maybe the MRT is instead merely an excise tax on the “privilege of doing business through a US controlled foreign corporation.” IMHO to call every direct tax a tax on the “privilege of doing X” would collapse the distinction between direct and indirect tax altogether, but (again) I digress!


Justices Barrett and Alito wrote an opinion concurring in the judgment only. First, they say the exact opposite of Jackson: realization is absolutely needed to qualify as a tax! Taxes on personal property are direct taxes subject to apportionment; income is not. To maintain the distinction between the two, there must be realization. And anyway, the commonly understood meaning of income has always meant gain “realized” or “derived.”


But if we skip that question and ask whether Congress can attribute the realization to the Moores: Congress might be able to if the shareholders have effectively received income in substance. Courts have to look at things like the shareholders’ control, or whether they get benefits from the entity earning the income.


Here, the Moores conceded that another similar provision is constitutional, so in Barrett’s/Alito’s minds, they’ve conceded the MRT is constitutional too. (Not a fun way to lose two votes).


Here comes the good part (because I agree): Justice Thomas’s dissent joined by Justice Gorsuch. It’s opening line:



Soon after:

Some sass:



Some history (I may not be a professor or a historian, but I wasn’t wrong!):


Go on:


Sure did!



But back to the case. The majority’s reliance on previous cases is wrong because:


Then they go on to explain all the reasons why other pass through taxes are different from the MRT. Partners are taxed because partnerships are understood to be indistinguishable from their partners. S-corps are a lot like partnerships (limited shareholders who elect to be taxed). And even though Barrett/Alito said the MRT was like the other law the Moores conceded was constitutional, that law focused on whether the shareholders had interest control during the year taxed. The MRT doesn’t.


Then this blisteringly conclusion (tl;dr you bootlickers just favor taxation!)



What’s the upshot? I happen to think the majority opinion is wrong, but it’s very, very narrow. It doesn’t answer the realization question (which at least 4 justices would answer in favor of the Moores). It doesn’t bless a wealth tax. And hey, you’ve always got due process to protect you (call me if you need a rational basis lawyer!)


Ps. Professor Amar owes me lunch!

Last but not least, I wanted to cover Campos-Chaves v. Garland, because it really grinds my gears when the government insists on being held to a different (lower) standard of behavior than the rest of us.


Gotta love the first sentence of the petition for certiorari:


But let’s start with the law. A Federal statute allows the government to remove noncitizens that don’t attend their scheduled removal hearings so long as the person has received proper notice. The statute sets out various notice requirements, including that it comes in the form of a single document that sets forth important information about the hearing, like the time and date. If the time and date change, the government may send out a second, revised notice.

Here, the government sent out a notice to appear that lacked the time and date. Later, it sent out a second notice of hearing that included the proper information. Not even the government contends that this two-document process, together, constitutes a single notice. Instead, it says that the second notice is adequate because it merely reschedules the first hearing from TBD to a specific date and time.

The First and Ninth Circuits have held that the government can’t change the time and place of a hearing that has not yet been scheduled, and therefore the two-step notice process is defective. The Sixth and Eleventh Circuits have held that the process can, at least under some circumstances, satisfy the statute. And in this case, the Fifth Circuit held that notice was sufficient because at the end of the day, Campos-Chaves did in fact receive the date and time (ie. no harm no foul). In his Petition, Campos-Chaves responded that the Fifth Circuit’s reading has “no basis in the statute. The Court just made it up.”

Or as I like to say:

The Fifth Circuit’s reading might appeal to those who see the government’s infraction as minor, or who believe it caused no harm. After all, at the end of the day, the government provided all of the required information. But the government doesn’t always take so kindly to people who commit minor infractions, even if they cause little harm.

What’s more, before the relevant statute was passed, the government was permitted to use two-step notice. Congress created (and required) one-step notice exactly because it wanted streamline the process and make sure the system was reliable for those threatened with removal. So the more the government stretches the rule to create a multi-notice process, the more it flies in the face of the entire purpose of the statute.


The plaintiff, Moris Esmelis Campos-Chaves, is a citizen of El Salvador who came to the United States in 2005 and now lives here with his wife and teenage citizen children. He works as a gardener, files taxes every year, and has no criminal history. His case was consolidated with the government’s petition in Garland v. Singh, which presents slightly different facts. Varinder Singh is an Indian citizen who fled political persecution in India due to his support of a Sikh nationalist. Like Campos-Chaves, Singh did not receive notice of the date and time in his initial notice to appear. The government sent him a subsequent letter informing him of the date and time, but then his hearing was changed and it therefore sent him a third notice. In that case, the Ninth Circuit held that because the initial notice lacked the time and date (as required by statute), it was improper and Singh could challenge the removal order, which was issued after he failed to attend the hearing.


At oral argument, several of the justices seemed worried that if the government were allowed to circumvent the one-step process this way, it would go on to engage in some serious tomfoolery. For instance, it could issue a blank piece of paper as a notice to appear that fails to provide the noncitizen with any of the relevant information (right to an attorney, charges against them), and then a year later issue a notice of hearing with the date and time. Under the government’s theory, the subsequent notice cures the initially defective notice, such that the noncitizen can then be removed in absentia even if they were never informed of the charges against them, their right to an attorney, or any other important information required in the initial notice. Perhaps worse, noncitizens can be removed even if they never received the second notice because they have moved in the interim and the government never apprised them of their obligation to provide an updated address.

In response to these concerns, the government’s attorney tried to assure everyone that such a scenario is unlikely because it has (revocable) regulations in place that kinda somewhat prevent it. Justice Gorsuch wasn’t buying it.



That forced the government to rely on administrative convenience arguments: you can’t possibly overturn our current practice because we’ll have to go back and undo all the damage we’ve done and that’s just way, way, way too much damage to undo.

Justice Kagan responded:

The government leaned hard on the argument that noncitizens will be incentivized not to show up, even if they actually know of the time and place of hearing, merely because they didn’t get proper initial notice, and that’s purportedly unfair. But as Justice Sotomayor noted earlier in the argument, they wouldn’t have that “advantage” if the government would just provide adequate notice.


Justice Alito asked tough questions of the other side. For instance, he asked whether it was ordinary use of the English language for someone to say to their friend, who doesn’t yet have a wedding date, “let me know if there’s a change.” I think that gets the inquiry wrong; there is a change, but not in the actual time and date. The time and date didn’t get changed; the circumstances did. Same goes for the government's notices.


But Justice Alito won the day. In a 5-4 decision, the Court sided with the government. In an opinion written by Justice Alito, the Court held that “to rescind an in absentia removal order on the ground that the alien ‘did not receive notice in accordance with paragraph (1) or (2),’ the alien must show that he did not receive notice under either” (that is to say both) “paragraph[s] for the hearing at which the alien was absent and ordered removed.  Because each of the aliens in these cases received a proper paragraph (2) notice for the hearings they missed and at which they were ordered removed, they cannot seek rescission.”

So the requirement that an alien show he did not receive notice under section 1 or 2 means both 1 and 2…


I can’t get over this opinion. To me it seems obvious that “or” means “or.” And yet here, the majority rules that it means “and.” And as Justice Jackson pointed out in her dissent, requiring full and complete NTAs was a vital part of Congress’s scheme. I think Justice Jackson’s opinion was an excellent takedown of the majority’s statutory interpretation and all of the reasons why it makes no sense. While the majority seems focused on the incentives to the non-citizen, Justice Jackson worries that the government will start issuing notices that are deficient in other respects, but that otherwise satisfy the majority opinion because they provide the date and time in an amended notice. And in any event, the statute was meant to facilitate removal of inadmissible noncitizens while also preserving due process rights. The majority is ignoring that history.


 Okay guys, I'm spent. And tomorrow will bring us new, big opinions! Buckle up, it's going to be a big end to the term...

Yours Truly,

Lady WhistleSCOT—er, I mean—Anastasia















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