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  • Writer's pictureElizabeth Slattery

Recap of Oral Arguments 11/9/23

There were three arguments at the Court this week. For background on the cases, check out my preview from last week. Here are some of the highlights of cases dealing with sovereign immunity and credit reporting, guns, and GI Bill benefits.


On Monday, the Court heard Department of Agriculture Rural Development Rural Housing Service v. Kirtz, which asks the Court whether Congress waived the government’s sovereign immunity in the Fair Credit Reporting Act (FCRA). The FCRA authorizes suits for civil damages against creditors who fail to comply with its requirements. Reginald Kirtz filed a suit against the Department of Agriculture for reporting to TransUnion and other credit reporting agencies that Kirtz’s payment history on a USDA loan was “past due” even though Kirtz had paid off the loan.

Two things essentially sum up the oral argument. First, many of the justices seem inclined to agree that the FCRA's definition of "person" to include "any government or governmental subdivision or agency" amounts to a waiver of the federal government's sovereign immunity. Justice Kagan called this "statutory interpretation 101."

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Justices Sotomayor and Gorsuch brought up that Congress doesn't have to use magic words to waive sovereign immunity. Justice Jackson asked about the fact that the definition was amended and expanded liability.

Second, some other justices (looking at you, Justice Alito) expressed concerns about the fact that the FCRA allows for criminal prosecution. If the federal government is a "person" for purposes of the civil liability provisions, is it also subject to the provisions that carry criminal penalties? Chief Justice Roberts and Justice Kavanaugh piled on: How would that even work? Should the Court be concerned about the potential cost of such liability?

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Spidermen pointing
The government prosecuting ... itself.

But as the lawyer for Kirtz noted, the lower court explained that there may be contextual reasons to "disregard[ ] an otherwise controlling statutory definition" that are "unique to the criminal context" and wouldn't implicate the civil provisions. (The federal government possibly prosecuting itself seems like one such context!)


On to the main event: United States v. Rahimi. The Fifth Circuit held 18. U.S. C. § 922(g)(8), the federal law prohibiting possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment on its face. Applying NY State Rifle and Pistol Association v. Bruen, the lower court determined there was no historical analogue for such a dispossession. The government argues that the Court's Second Amendment jurisprudence – Heller, McDonald, and Bruen – recognizes that Congress may disarm those who are not law-abiding responsible citizens.

So, how do you define "law-abiding responsible citizens"?

Right off the bat, that's what Justice Thomas wanted to know. Solicitor General Elizabeth Prelogar argued history and tradition show that someone who commits serious crimes with felony-level punishment is not law-abiding, and someone who poses an unusual danger to themselves or others is not responsible. These are two separate categories, and Rahimi falls into the second one.

Fan yells at referee
The Chief is definitely "asking for a friend." He would never heckle a ref.

Other justices were keen to drill down on the contours of this "law-abiding responsible citizen" business. Chief Justice Roberts jumped in: What about someone who drives 30 miles per hour when the speed limit is 25 miles per hour? Is that law-abiding? And is it "irresponsible" to forget to put your recycling out or yell at a basketball game?

Prelogar replied that a misdemeanor wouldn't rise to the level of disarming someone, and the government doesn't use the term "responsible" colloquially. It's focused on disarming people who are dangerous, even unintentionally, as could be the case with the mentally ill or minors.

Justice Barrett pulled on this "dangerous" thread. While there's little dispute about whether we consider domestic violence dangerous, what about cases at the margin? Prelogar asserted legislatures are best suited to make those sorts of judgments, and in any event, Rahimi's case is not a close one.

Barrett also wanted to know if the government suggesting "law-abiding and responsible" is a test courts should apply. Prelogar said it's not a test, just a shorthand standing for the proposition that legislatures can disarm people who have committed serious crimes or present a danger.

Later in the argument, the Chief Justice provided a moment of levity when he asked public defender Matthew Wright if he doubted his client is dangerous.

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Another hot topic of discussion was historical analogues. (In other words, what's good enough for government work?)

Bruen instructs courts to assess the validity of firearms restrictions by identifying a similar restriction from the Founding era or shortly after. (Nb: There's an active debate about just how far in the 19th century we can look.) To support § 922(g)(8)'s ban on possession by individuals subject to a domestic violence restraining order, Prelogar pointed to legislatures from the Founding era on disarming people who committed "serious criminal conduct or whose access to guns poses a danger," including loyalists, rebels, minors, the mentally ill, felons, and drug addicts. She maintained the lower court went beyond what Bruen required, demanding a near match.

Justices Thomas and Jackson both wanted to know why the government was no longer pointing to examples of colonial era bans on arms possession by slaves and Native Americans. (Not exactly a good look, feds!) Prelogar reasoned that, at the Founding, slaves and Native Americans were not considered to be "among the people" protected by the Second Amendment, as odious as that classification may be. They also were stripped of other rights to participate in the political community.

Does that mean the test is flawed, Jackson wondered, if "we're not considering the history and tradition of all of the people but only some of the people as per the government's articulation of the test?" Prelogar demurred but noted that the government is relying on historical analogues that "more clearly bear on the issue of when legislatures can disarm even those who are among the people."

Justice Kagan asked Wright to explain an assertion in his brief that "the government has yet to find even a single American jurisdiction that adopted a similar ban while the founding generation walked the earth." So what historical analogue would be sufficient, then?

Wright replied, "I'm looking for a ban, some criminal punishment for just the keeping of a firearm. That's what I'm looking for. And it's based not on the loss of status of citizenship, you know, or being outside the community. I'm looking for a ban that applies to a rights-holding American citizen." The oldest ban on possession by non-felons in their home, Wright maintained, dates to 1968. (Not exactly a Ye Olde Ban.)

The third area that came up quite a bit during the argument was due process. What notice and opportunity does a person have to contest a domestic violence restraining order before it is entered (which carries consequences for the exercise of Second Amendment rights)? Justice Alito asked how a person subject to a such an order could challenge it. Is there any federal avenue? Prelogar explained that he could seek recourse in state court, but if the order meets the criteria in § 922(g)(8), then a federal court can rely on it.

What about permanent restraining orders? "How do you justify a permanent prohibition if the danger has disappeared?" Alito asked. Prelogar said she wasn't aware of any (though when it was Wright's turn to argue, he rattled off a list of states that authorize permanent protective orders). Justice Sotomayor followed up, "Just to be clear, none of the situations that Justice Alito is pointing to are the facts of this case, correct?" (Gotta love a SCOTUS assist!) Prelogar pointed out that Rahimi had not raised a due process claim.

Later in the argument, Justice Gorsuch and Wright had a back and forth about how to challenge one of these orders, which seemed to leave the justice scratching his head (me too!).

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On balance, the justices didn't seem too concerned about questions surrounding due process. At one point in the argument, Justice Gorsuch mused, "I'm wondering, on a facial challenge, do we need to get into any of that, right? Normally, we ask on a facial challenge, is there any set of circumstances in which the dispossession would be lawful?" And that may be what carries the day because in a facial challenge, a plaintiff must show there is no constitutional application of the law in question.


The third argument of the week was in Rudisill v. McDonough, in which the Court is considering whether a veteran who has earned education benefits for separate periods of service under two GI Bills has to exhaust the less-generous benefits (Montgomery benefits) he's earned before tapping into more generous benefits (Post-9/11 benefits).

Dr. Seuss fish book
One fish, two fish, red fish, you're out of benefits.

Justice Jackson offered an apt analogy: Imagine Montgomery benefits are a red baseball cap and Post-9/11 benefits are a blue baseball cap. The law allows veterans to "earn more than one hat . . . for separate periods of service, but the two hats can't be worn at the same time. You have to do one or the other."

In an exchange with the attorney for the government, Chief Justice Roberts observed that the government said the purpose of GI Bill benefits is transitioning veterans back to civilian life. But the petitioner, Rudisill, served one period before 9/11, used some GI Bill benefits to go to college, and then returned for two more periods of service after 9/11, instead of transitioning back to civilian life. Roberts pointed out that under the government's theory, Rudisill is effectively being penalized for having multiple periods of service. Roberts remarked that there "must be something wrong there because that would . . . not make any sense." (Justices Kagan and Sotomayor agreed, calling it, respectively, "utterly arbitrary" and "irrational.")

Tugging on the heartstrings, Roberts concluded, "You're saying, well, [Rudisill] do[es]n't get another transition because . . . [he] decided to go back to Iraq and Afghanistan and get a Bronze Star, so we don't have to worry about [him] transitioning to school."

The government attorney said that's the consequence of the statute and if it creates hardship in some cases, "Congress is free to amend the statute." (That's show biz, baby!)

Rudisill's lawyer asserted this could impact more than one million veterans, so depending on how the case shakes out, Congress may need to take another look at this benefits regime.

And that's all! The justices will be back at it after Thanksgiving with another argument sitting. I'll leave you with my favorite moment from the week. Just wait, this will be the new "dog's breakfast" for Justice Gorsuch:

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