|
Sydin posted:Leave it to Alito to take every opportunity available to him to polish police boots spotless with his tongue. Even Scalia came up for air on 4A cases (as long as the 4A didn't cut against his culture war vendettas) didn't he? YOU'RE NOT FIT TO WEAR THE NAME SCALITO, SAMMY.
|
#
?
Jun 28, 2021 19:03
|
|
|
|
| # ? May 28, 2024 19:37 |
|
|
FAUXTON posted:Even Scalia came up for air on 4A cases (as long as the 4A didn't cut against his culture war vendettas) didn't he? iirc he ruled that using IR cameras to see through curtains that were opaque to visible light constituted a search and required a warrant. The specific case involved using the cameras to look for weed grow ops.
|
|
#
?
Jun 28, 2021 20:44
|
|
|
Blue Footed Booby posted:iirc he ruled that using IR cameras to see through curtains that were opaque to visible light constituted a search and required a warrant. The specific case involved using the cameras to look for weed grow ops. do you mean Alito or Scalia? Iirc Scalia opined against warrantless phone searches too.
|
|
#
?
Jun 28, 2021 22:52
|
|
|
https://mobile.twitter.com/ReutersLegal/status/1409637734201933827
|
|
#
?
Jun 29, 2021 00:09
|
|
|
lmao
|
|
#
?
Jun 29, 2021 00:12
|
|
|
https://mobile.twitter.com/leah_nylen/status/1409586528058105858
|
|
#
?
Jun 29, 2021 00:15
|
|
|
https://mobile.twitter.com/NewHampJournal/status/1409528439028256770
|
|
#
?
Jun 29, 2021 00:18
|
|
|
I loving despise when SCOTUS ducks an original jurisdiction case. Bastards.
|
|
#
?
Jun 29, 2021 00:20
|
|
|
ulmont posted:I loving despise when SCOTUS ducks an original jurisdiction case. Bastards. State vs State might be original jurisdiction, but how is New Hampshire itself being harmed here?
|
|
#
?
Jun 29, 2021 11:18
|
|
|
Does a state not have standing to speak on behalf of its residents? The monetary losses of the residents seem obvious.
|
|
#
?
Jun 29, 2021 13:10
|
|
|
Origin posted:State vs State might be original jurisdiction, but how is New Hampshire itself being harmed here? You can read the 79 page motion for leave to file at https://www.supremecourt.gov/DocketPDF/22/22O154/158044/20201019090315372_NH%20v.%20MA%20Orig%20Action.pdf but New Hampshire has made the policy choice not to tax its residents. Under NH’s interpretation, the Massachussetts rule is unconstitutionally overriding the NH legislature by taxing NH residents for income earned in NH. …NH also cites to multiple original jurisdiction cases where one state sued another over their taxes. The NH claims are under the Commerce Clause and the Due Process Clause. …btw, everybody, today’s an opinion day.
|
|
#
?
Jun 29, 2021 13:23
|
|
|
GlyphGryph posted:Does a state not have standing to speak on behalf of its residents? The monetary losses of the residents seem obvious. This sounds like a taxpayer lawsuit, and SCOTUS did what it has done with these kinds of suits and declined to hear it.
|
|
#
?
Jun 29, 2021 13:39
|
|
|
Origin posted:State vs State might be original jurisdiction, but how is New Hampshire itself being harmed here? Refusing to take the case and dismissing for lack of standing are two different things.
|
|
#
?
Jun 29, 2021 13:48
|
|
|
 Opinions! 1-2 of 3 for June 29. 2 opinions left after today (they will come on Thursday, July 1).MINERVA SURGICAL, INC. v. HOLOGIC, INC., ET AL. TLDR: Patent assignor estoppel (which means if you owned a patent and sold it, you can’t later say the patent is invalid and should not have been granted) is well grounded in centuries-old fairness principles, and the Federal Circuit was right to uphold it. But assignor estoppel applies only when the assignor’s claim of invalidity contradicts explicit or implicit representations he made in assigning the patent (more of a fraud sort of analysis). Holding / Majority Opinion (Kagan) In Westinghouse Elec. & Mfg. Co. v. Formica Insulation Co., 266 U. S. 342, 349 (1924), this Court approved the “well settled” patent-law doctrine of “assignor estoppel.” That doctrine, rooted in an idea of fair dealing, limits an inventor’s ability to assign a patent to another for value and later contend in litigation that the patent is invalid. The question presented here is whether to discard this century-old form of estoppel. Continuing to see value in the doctrine, we decline to do so. But in upholding assignor estoppel, we clarify that it reaches only so far as the equitable principle long understood to lie at its core. The doctrine applies when, but only when, the assignor’s claim of invalidity contradicts explicit or implicit representations he made in assigning the patent. … The invention sparking this lawsuit is a device to treat abnormal uterine bleeding, a medical condition affecting many millions of women. Csaba Truckai, a founder of the company Novacept, Inc., invented the device—called the NovaSure System—in the late 1990s. He soon afterward filed a patent application, and assigned his interest in the application—as well as in any future “continuation applications”—to Novacept...In 2004, Novacept sold its assets, including its portfolio of patents and patent applications, to another company (netting Truckai individually about $8 million). And in another sale, in 2007, respondent Hologic, Inc. acquired all patent rights in the NovaSure System. Today, Hologic sells that device throughout the United States. Not through with inventing, Truckai founded in 2008 petitioner Minerva Surgical, Inc. ... [Minerva got sued by Hologic for infringement of the NovaSure System patent, and Minerva claimed the patent was invalid. Hologic said “wait, you sold that patent, you can’t say it’s invalid now.”] … Courts have long applied the doctrine of assignor estoppel to deal with inconsistent representations about a patent’s validity. The classic case (different in certain respects from the one here) begins with an inventor who both applies for and obtains a patent, then assigns it to a company for value. Later, the inventor/assignor joins a competitor business, where he develops a similar—and possibly infringing— product. When the assignee company sues for infringement, the assignor tries to argue—contrary to the (explicit or implicit) assurance given in assigning the patent—that the invention was never patentable, so the patent was never valid. That kind of about-face is what assignor estoppel operates to prevent—or, in legalese, estop. As one of the early American courts to use the doctrine held: The assignor is not “at liberty to urge [invalidity] in a suit upon his own patent against a party who derives title to that patent through him.” Or as the Federal Circuit held in modern times: The assignor’s explicit or “implicit representation” that the patent he is assigning is “not worthless . . . deprive[s] him of the ability to challenge later the [patent’s] validity.” … This Court first considered—and unanimously approved—assignor estoppel in 1924, in Westinghouse v. Formica. Speaking through Chief Justice Taft, the Court initially invoked the doctrine’s uniform acceptance in the lower courts. The first decision applying assignor estoppel, the Court recounted, was soon “followed by a myriad.” … Westinghouse, like its precursor decisions, grounded assignor estoppel in a principle of fairness. “If one lawfully conveys to another a patented right,” the Court reasoned, “fair dealing should prevent him from derogating from the title he has assigned.” After all, the “grantor purports to convey the right to exclude others”; how can he later say, given that representation, that the grantee in fact possesses no such right? … the Court made clear that the doctrine has limits. Although the assignor cannot assert in an infringement suit that the patent is invalid, the Court held that he can argue about how to construe the patent’s claims. Here, the Court addressed the role in patent suits of prior art—the set of earlier inventions (and other information) used to decide whether the specified invention is novel and non-obvious enough to merit a patent.“Of course,” the Court said, the assignor cannot use prior art in an infringement suit “to destroy the patent,” because he “is estopped to do this.” But he can use prior art to support a narrow claim construction—to “construe and narrow the claims of the patent, conceding their validity.” “Otherwise,” the Court explained, a judge “would be denied” the “most satisfactory means” of “reaching a just conclusion” about the patent’s scope—a conclusion needed to resolve the infringement charge. “The distinction” thus established, the Court thought, “may be a nice one, but seems to be workable.” And, indeed, the Court applied it to decide the case at hand for the assignor, finding that he had not infringed the properly narrowed claim. … Minerva’s main argument here, as in the Federal Circuit, is that “assignor estoppel should be eliminated”—and indeed has been already. We reject that view. The doctrine has lasted for many years, and we continue to accept the fairness principle at its core. Minerva’s back-up contention is that assignor estoppel “should be constrained.” On that score, we find that the Federal Circuit has applied the doctrine too expansively. Today, we clarify the scope of assignor estoppel.... In its quest to abolish assignor estoppel, Minerva lodges three main arguments. The first two offer different reasons for why the doctrine is already defunct: because Congress repudiated it in the Patent Act of 1952 and because, even if not, this Court’s post-Westinghouse cases “leave no room for the doctrine to continue.” The third, by contrast, is a present-day policy claim: that assignor estoppel “imposes” too high a “barrier to invalidity challenges” and so keeps bad patents alive. (The principal dissent essentially endorses the first two arguments, but not the third.) On the first point, we do not agree that the Patent Act of 1952 abrogated assignor estoppel. The statutory language Minerva relies on provides that “[i]nvalidity” of the patent “shall be [a] defense[] in any action involving” infringement. According to Minerva, that language “instructs that invalidity must be available as a defense in every [infringement] action,” thus “leav[ing] no room for assignor estoppel.” But to begin with, similar language, entitling a defendant to plead invalidity in any infringement action, was in the patent statute when Westinghouse was decided. And anyway, Minerva’s view is untenable because it would foreclose applying in patent cases a whole host of common-law preclusion doctrines—not just assignor estoppel, but equitable estoppel, collateral estoppel, res judicata, and law of the case. That broad result would conflict with this Court’s precedents. And it would subvert congressional design. For Congress “legislate[s] against a background of common-law adjudicatory principles,” and it “expect[s]” those principles to “apply except when a statutory purpose to the contrary is evident.” … We likewise do not accept Minerva’s view that two of our post-Westinghouse decisions have already interred assignor estoppel. According to Minerva (quoting the case’s dissent), Scott Paper Co. v. Marcalus Mfg. Co. “eliminated any justification for assignor estoppel and ‘repudiated’ the doctrine.” And if that were not enough, Minerva continues, our decision in Lear, Inc. v. Adkins, 395 U. S. 653 (1969), also “eviscerated any basis for assignor estoppel.” But we think the words “eliminated,” “repudiated,” and “eviscerated” are far off. Scott Paper and Lear in fact retained assignor estoppel; all they did was police the doctrine’s boundaries (just as Westinghouse did and we do today). Whatever a worked-up dissent charged, Scott Paper did nothing more than decline to apply assignor estoppel in a novel and extreme circumstance. The petitioner in Scott Paper made the same ask Minerva does here: to abolish the Westinghouse rule. The Court expressly declined that request. And it restated the “basic principle” animating assignor estoppel, describing it as “one of good faith, that one who has sold his invention may not, to the detriment of the purchaser, deny the existence of that which he has sold.” … Lear gives Minerva still less to work with. In that case, the Court considered and toppled a different patent estoppel doctrine. Called licensee estoppel, it barred (as its name suggests) a patent licensee from contesting the validity of the patent on a device he was paying to use. Minerva’s basic claim is that as goes one patent estoppel rule, so goes another. But Lear did not purport to decide the fate of the separate assignor estoppel doctrine. To the contrary, the Court stated that the patent holder’s “equities” in the assignment context “were far more compelling than those presented in the typical licensing arrangement.” … In sum, Scott Paper and Lear left Westinghouse right about where they found it—as a bounded doctrine designed to prevent an inventor from first selling a patent and then contending that the thing sold is worthless. Westinghouse saw that about-face as unfair; Scott Paper and Lear never questioned that view. At the same time, Westinghouse realized that assignor estoppel has limits: Even in approving the doctrine, the Court made clear that not every assignor defense in every case would fall within its scope. Scott Paper and Lear adopted a similar stance. They maintained assignor estoppel, but suggested (if in different ways) that the doctrine needed to stay attached to its equitable moorings. The three decisions together thus show not the doctrinal “eviscerat[ion]” Minerva claims, but only the kind of doctrinal evolution typical of common-law rules. Finally, we do not think, as Minerva claims, that contemporary patent policy—specifically, the need to weed out bad patents—supports overthrowing assignor estoppel. In rejecting that argument, we need not rely on stare decisis: “[C]orrect judgments have no need for that principle to prop them up.” And we continue to think the core of assignor estoppel justified on the fairness grounds that courts applying the doctrine have always given. … Still, our endorsement of assignor estoppel comes with limits—true to the doctrine’s reason for being. Just as we guarded the doctrine’s boundaries in the past, so too we do so today. Assignor estoppel should apply only when its underlying principle of fair dealing comes into play. That principle, as explained above, demands consistency in representations about a patent’s validity: What creates the unfairness is contradiction. When an assignor warrants that a patent is valid, his later denial of validity breaches norms of equitable dealing. And the original warranty need not be express; as we have explained, the assignment of specific patent claims carries with it an implied assurance. But when the assignor has made neither explicit nor implicit representations in conflict with an invalidity defense, then there is no unfairness in its assertion. And so there is no ground for applying assignor estoppel. One example of non-contradiction is when the assignment occurs before an inventor can possibly make a warranty of validity as to specific patent claims. Consider a common employment arrangement. An employee assigns to his employer patent rights in any future inventions he develops during his employment; the employer then decides which, if any, of those inventions to patent. In that scenario, the assignment contains no representation that a patent is valid. How could it? The invention itself has not come into being. And so the employee’s transfer of rights cannot estop him from alleging a patent’s invalidity in later litigation. A second example is when a later legal development renders irrelevant the warranty given at the time of assignment. Suppose an inventor conveys a patent for value, with the warranty of validity that act implies. But the governing law then changes, so that previously valid patents become invalid. The inventor may claim that the patent is invalid in light of that change in law without contradicting his earlier representation. What was valid before is invalid today, and no principle of consistency prevents the assignor from saying so. Most relevant here, another post-assignment development—a change in patent claims—can remove the rationale for applying assignor estoppel. Westinghouse itself anticipated this point, which arises most often when an inventor assigns a patent application, rather than an issued patent. As Westinghouse noted, “the scope of the right conveyed in such an assignment” is “inchoate”—“less certainly defined than that of a granted patent.” That is because the assignee, once he is the owner of the application, may return to the PTO to “enlarge[]” the patent’s claims. And the new claims resulting from that process may go beyond what “the assignor intended” to claim as patentable. Westinghouse did not need to resolve the effects of such a change, but its liberally dropped hints—and the equitable basis for assignor estoppel—point all in one direction. Assuming that the new claims are materially broader than the old claims, the assignor did not warrant to the new claims’ validity. And if he made no such representation, then he can challenge the new claims in litigation: Because there is no inconsistency in his positions, there is no estoppel. The limits of the assignor’s estoppel go only so far as, and not beyond, what he represented in assigning the patent application. The Federal Circuit, in both its opinion below and prior decisions, has failed to recognize those boundaries….We remand this case to the Federal Circuit to now address what it thought irrelevant: whether Hologic’s new claim is materially broader than the ones Truckai assigned. This Court recognized assignor estoppel a century ago, and we reaffirm that judgment today. But as the Court recognized from the beginning, the doctrine is not limitless. Its boundaries reflect its equitable basis: to prevent an assignor from warranting one thing and later alleging another. Assignor estoppel applies when an invalidity defense in an infringement suit conflicts with an explicit or implicit representation made in assigning patent rights. But absent that kind of inconsistency, an invalidity defense raises no concern of fair dealing—so assignor estoppel has no place. For these reasons, we vacate the judgment of the Federal Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Lineup: Kagan, joined by Roberts, Breyer, Sotomayor, and Kavanaugh. Dissent by Alito. Dissent by Barrett, joined by Thomas and Gorsuch. Dissent (Alito) We granted review in this case to decide whether the doctrine of assignor estoppel bars petitioner from challenging the validity of a patent indirectly assigned to respondents, and I do not see how we can answer that question without deciding whether Westinghouse Elec. & Mfg. Co. v. Formica Insulation Co., which recognized assignor estoppel, should be overruled. Both the majority and the principal dissent go to great lengths to avoid that question, but in my judgment, their efforts are unsuccessful. The majority says it has no need to invoke precedent, but without that support, the majority’s holding cannot stand. Not one word in the patent statutes supports assignor estoppel, and the majority does not claim otherwise. “[T]his Court [doesn’t] usually read into statutes words that aren’t there,” but that is just what the majority has done in this case...it adopts a text-blind method of statutory interpretation with which I cannot possibly agree. The Court’s evasion of stare decisis is fully matched by the principal dissent. That opinion sees no need to address stare decisis because, in its view, Westinghouse has not been a precedent for the past 69 years. According to the principal dissent, Westinghouse was abrogated by the Patent Act of 1952. It reasons as follows: Westinghouse interpreted the Patent Act of 1870; because that Act was superseded by the Patent Act of 1952, we must decide whether the new Act “ratified” Westinghouse; and in order to show that Westinghouse was ratified, the defenders of assignor estoppel must persuade us that “(1) the interpretation [adopted in Westinghouse was] so well settled that we can ‘presume Congress knew of and endorsed it’ at the time of the reenactment, and (2) the statute [was] reenacted without material change”. This reasoning is unprecedented and troubling. To start, it is quite misleading to suggest that Westinghouse was based on an interpretation of the 1870 Patent Act. Neither of the two statutory provisions Westinghouse mentioned said anything that supported the Court’s decision, and the Court did not claim otherwise. Instead, the decision rested on different grounds. It relied on the principle of “fair dealing,” an analogy to the doctrine of estoppel by deed (a feature of the law of real property), and perhaps most importantly, a body of lower court case law. If Westinghouse had been based on an interpretation of language in the 1870 Act and if the 1952 Act had changed that language, there might be a basis for finding abrogation. But that is not the situation here … The only modification made by the 1952 Act that the principal dissent claims has any logical connection with assignor estoppel is the addition of language saying that patents generally have the attributes of personal property. That change has a bearing on whether Westinghouse should be overruled because it undermined Westinghouse’s analogy to estoppel by deed, but it is not enough to show abrogation because Westinghouse did not rely solely on that analogy. In sum, I do not think we can decide the question that the petition in this case presents unless we decide whether Westinghouse should be overruled. Because the majority and the principal dissent refuse to decide whether Westinghouse should be overruled, I would dismiss the writ as improvidently granted. I therefore respectfully dissent. Dissent (Barrett, joined by Thomas and Gorsuch) The Patent Act of 1952 sets forth a comprehensive scheme for the creation and protection of patent rights. But it nowhere mentions the equitable doctrine of assignor estoppel, which precludes inventors who file patent applications from later saying that the patent is invalid. To the contrary, where the Act does address invalidity defenses, it states that invalidity “shall” be a defense “in any action involving the validity or infringement of a patent.” The text includes no exception for actions in which the inventor is the defendant. So why the doctrine of assignor estoppel? Because in Westinghouse Elec. & Mfg. Co. v. Formica Insulation Co., we interpreted a predecessor statute, the Patent Act of 1870, to incorporate the doctrine. The question before us is whether the doctrine carried over into the Patent Act of 1952. That could have happened in one of two ways: (1) if Congress ratified Westinghouse when it reenacted the assignment provision in 1952, or (2) if assignor estoppel was part of the well-settled common-law backdrop against which Congress legislated in 1952. The Court opts for the second theory, but in my view, neither works. I will take the possibility of congressional ratification first because it follows more naturally from Westinghouse. In that case, the Court did not present the doctrine of assignor estoppel as a well-established background principle against which Congress legislated when it enacted the Patent Act of 1870. Nor could it have: The first American case to apply the doctrine was not decided until 1880. Instead, the Westinghouse Court identified assignor estoppel as a rule that made sense in light of the Act’s assignment provision. … The question here is whether Congress embraced this [interpretation] when it reenacted that provision in 1952. Congress ratifies a judicial interpretation in a reenacted statute only if two requirements are satisfied: (1) the interpretation must be so well settled that we can “presume Congress knew of and endorsed it” at the time of the reenactment, and (2) the statute must be reenacted without material change... The rule is inapplicable when there is no settled standard Congress could have known or the reenactment makes a material change in the text” (footnote omitted)). So here, respondents must persuade us that (1) as of 1952, Westinghouse’s construction of the assignment provision in the Patent Act of 1870 was well settled, and (2) the assignment provision in the Patent Act of 1952 is materially identical to the 1870 version. Jama, They cannot clear either hurdle. Westinghouse’s construction of the assignment provision in the Patent Act of 1870 was far from well settled in 1952. Indeed, it is difficult to describe Westinghouse itself as much more than a “mild endorsement of assignor estoppel.” Brief for Petitioner 20. While accepting the doctrine, the Court simultaneously declined to apply it.…But Westinghouse was not the last word on assignor estoppel. The next time we considered the doctrine, we backpedaled... So when Congress reenacted the Patent Act in 1952, assignor estoppel was far from well settled—if anything, it was on life support. … The reenactment canon has a second requirement: The reenacted statute must be materially identical to the one previously interpreted. This poses another stumbling block for assignor estoppel, because the assignment provision of the 1952 Act contains a significant sentence that the 1870 Act did not: “Subject to the provisions of this title, patents shall have the attributes of personal property.” Given the reasoning of Westinghouse, this is a material change. Westinghouse grounded its approval of assignor estoppel in the idea that patents are like real property. … If Congress did not ratify our gloss on the assignment provision in the 1952 Act, how else might assignor estoppel be part of the statute? The Court comes at the interpretive problem from a different angle: It holds that by 1952, assignor estoppel had become “a background principle of patent adjudication” against which Congress legislated. On this theory, Westinghouse is important not for its interpretation of the assignment provision but for the equitable principle that it endorsed. In my view, this theory also fails because Westinghouse proved to be a false start for the doctrine. … Respondents insist that assignor estoppel promotes fair dealing, while petitioner protests that the supposedly equitable doctrine is actually inequitable in practice. If we had authority to develop federal common law on the subject, we could take sides in that debate. But no one contends that we do. This case turns on whether the Patent Act of 1952 incorporates the doctrine, and because it does not, I respectfully dissent. https://www.supremecourt.gov/opinions/20pdf/20-440_9ol1.pdf JOHNSON, ACTING DIRECTOR OF U. S. IMMIGRATION AND CUSTOMS ENFORCEMENT, ET AL. v. GUZMAN CHAVEZ ET AL. TLDR: If you were an alien removed from the US, reentered without authorization, got another removal order, and then are looking to have removal withheld for fear of persecution, you are not entitled to a bond hearing. Holding / Majority Opinion (Per Curiam) Federal immigration law contains various provisions authorizing the Government to detain aliens during the removal process. This case concerns two of them: 8 U. S. C. §1226 and 8 U. S. C. §1231. We are asked to decide which of those provisions applies to aliens who were removed from the United States but later reentered without authorization, were subject to reinstated orders of removal, and then sought withholding of removal based on fear of persecution in the particular countries designated by their removal orders. If the answer is §1226, which applies “pending a decision on whether the alien is to be removed from the United States,” then the alien may receive a bond hearing before an immigration judge. If the answer is §1231, which applies after the alien is “ordered removed,” then the alien is not entitled to a bond hearing. We conclude that §1231, not §1226, governs the detention of aliens subject to reinstated orders of removal, meaning those aliens are not entitled to a bond hearing while they pursue withholding of removal. The Immigration and Nationality Act (INA) establishes procedures for removing aliens living unlawfully in the United States. In the ordinary course, if the Department of Homeland Security (DHS) discovers that an alien is living in the United States without authorization, it may initiate removal proceedings against the alien by sending him a “notice to appear.” … The INA further provides that DHS may arrest and detain the alien “pending a decision on whether the alien is to be removed from the United States.” Aliens who are arrested and detained may generally apply for release on bond or conditional parole. … Once an alien is ordered removed, DHS must physically remove him from the United States within a 90-day “removal period.”...Under §1231, the removal period may be extended in at least three circumstances, such that an alien remains detained after 90 days have passed. First, the removal period may be extended if the alien fails to make a timely application for travel documents or acts to prevent his removal. Second, DHS may stay the immediate removal of certain aliens if it decides that such removal is not practicable or proper, or if the alien is needed to testify in a pending prosecution. And finally, the statute provides that an alien may be detained beyond the removal period or released under supervision if he is (1) inadmissible, (2) removable as a result of violations of status requirements, entry conditions, or the criminal law, or for national security or foreign policy reasons, or (3) a risk to the community or unlikely to comply with the removal order. ... Although the statute does not specify a time limit on how long DHS may detain an alien in the post-removal period, this Court has “read an implicit limitation” into the statute “in light of the Constitution’s demands,” and has held that an alien may be detained only for “a period reasonably necessary to bring about that alien’s removal from the United States.” And according to the Court, a period reasonably necessary to bring about the alien’s removal from the United States is presumptively six months. … Congress has created an expedited process for aliens who reenter the United States without authorization after having already been removed….DHS’s regulations set out the process for reinstating an order of removal. In short, the agency obtains the alien’s prior order of removal, confirms the alien’s identity, determines whether the alien’s reentry was unauthorized, provides the alien with written notice of its determination, allows the alien to contest that determination, and then reinstates the order. … Much of this case turns on the nature of withholding-only proceedings. There are two paths for seeking withholding of removal. First, the alien may seek statutory withholding under §1231(b)(3)(A), which provides that “the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” Second, the alien may seek withholding under regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which prohibits removal of an alien to a country where the alien is likely to be tortured. The process for applying for withholding of removal depends on whether the alien is subject to the standard removal proceedings or a reinstated order of removal. As mentioned above, an alien subject to the standard removal process typically applies for withholding during the course of his removal proceedings. But because an alien subject to a reinstated order of removal will not have any removal proceedings, the process begins for him only if he expresses a fear to DHS of returning to the country of removal. … Respondents are aliens who were removed from the United States and later reentered without authorization. When DHS discovered their presence, it reinstated their prior removal orders.Each respondent expressed a fear of returning to his or her home country and was referred to an asylum officer for a reasonable fear interview. In each case, the asylum officer determined that the respondent had a reasonable fear of persecution or torture and referred the respondent to an immigration judge for withholding-only proceedings. Although some of the respondents were initially granted supervised release, all were ultimately detained by DHS. They then sought release on bond while their withholding-only proceedings were pending. The Government opposed release, maintaining that because respondents were detained under 8 U. S. C. §1231, not §1226, they were not entitled to bond hearings. … [Thomas and Gorsuch do not join footnote 4, which is not part of the Court’s opinion, because they do not think the Court has jurisdiction to hear this case: 4We have jurisdiction to review the decision below. See Jennings v. Rodriguez, 583 U. S. ___, ___–___ (2018) (plurality opinion) (slip op., at 8–11).] We turn first to the statutory text. Section 1226 provides that “an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.” Section 1231, by contrast, authorizes detention “when an alien is ordered removed” and enters the “removal period,” which begins on “[t]he date the order of removal becomes administratively final.” … The parties agree that §1226 governs the detention of aliens until §1231’s “removal period” begins. As relevant here, the removal period begins when an alien is “ordered removed,” and the removal order becomes “administratively final.” To resolve this case, we therefore must decide two questions: whether respondents were “ordered removed” and whether their reinstated removal orders were “administratively final.” The answer to both questions is yes. First, respondents have been “ordered removed.” It is undisputed that each respondent was previously removed pursuant to a valid order of removal. And after respondents later reentered the United States without authorization, those prior orders were “reinstated from [their] original date[s]” under §1231(a)(5). Those reinstated orders are not subject to reopening or review, nor are respondents eligible for discretionary relief under the INA. Instead, they “shall be removed under the prior order at any time after the reentry.” Accordingly, respondents’ prior orders, reinstated under §1231(a)(5), show that respondents were ordered removed. Second, respondents’ reinstated removal orders are “administratively final.” Although that phrase is not defined in the statute, its meaning is clear. By using the word “administratively,” Congress focused our attention on the agency’s review proceedings, separate and apart from any judicial review proceedings that may occur in a court….once the BIA has reviewed the order (or the time for seeking the BIA’s review has expired), DHS is free to remove the alien unless a court issues a stay. That reinforces why Congress included “administratively” before the word “final” in the first provision. Respondents do not contest that their prior removal orders have long been “administratively final,” as we understand the term. Each had the opportunity to seek review in the BIA after the initial removal order was entered, and §1231(a)(5) explicitly prohibits them from seeking review or relief from the order after it is reinstated following unlawful reentry. In other words, there is nothing left for the BIA to do with respect to the removal order other than to execute it. Thus, respondents’ orders are administratively final. … For these reasons, §1231’s detention provisions are a natural fit for aliens subject to reinstated orders of removal. Respondents and the dissent appear to accept this much but nevertheless contend that even if §1231 normally governs aliens in this posture, it ceases to apply when such an alien pursues withholding-only relief. … Respondents first argue that because an immigration judge or the BIA might determine that DHS cannot remove an alien to the specific country designated in the removal order, the question whether the alien is “to be removed” remains “pending” and is therefore governed by §1226. Respondents misunderstand the nature of withholding-only proceedings. When an alien applies for withholding-only relief, he does so as to a particular country. The proceedings that result from such an application are “limited to a determination of whether the alien is eligible for withholding or deferral of removal,” and “all parties are prohibited from raising or considering any other issues, including but not limited to issues of admissibility, deportability, eligibility for waivers, and eligibility for any other form of relief.” If an immigration judge grants an application for withholding of removal, he prohibits DHS from removing the alien to that particular country, not from the United States. The removal order is not vacated or otherwise set aside. It remains in full force, and DHS retains the authority to remove the alien to any other country authorized by the statute. And the statute provides numerous options: a country designated by the alien; the alien’s country of citizenship; the alien’s previous country of residence; the alien’s country of birth; the country from which the alien departed for the United States; and finally, any country willing to accept the alien. … Respondents next argue that a removal order does not become “administratively final” until the withholding-only proceedings conclude. That is so, they say, even if a reinstated order of removal is “administratively final” at the time of its reinstatement; according to their submission, when the alien initiates withholding-only proceedings, the reinstated order loses its prior finality. See Brief for Respondents 24–25. In a similar vein, the dissent contends that respondents’ removal orders are not “administratively final” because, by seeking withholding-only relief, respondents are “in effect” seeking “a modification of, a change in, or a withholding of, the ‘prior order of removal.’” These related arguments suffer from the same flaw as the one just discussed: They ignore that removal orders and withholding-only proceedings address two distinct questions. As a result, they end in two separate orders, and the finality of the order of removal does not depend in any way on the outcome of the withholding-only proceedings. … At oral argument, respondents offered a new textual argument in support of their position that §1231 does not govern their detention. They point to the opening clause of §1231(a)(1)(A), which states in full: “Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days.” Respondents submit that because withholding-only relief is provided for in §1231, DHS cannot remove an alien who seeks such relief, and the removal period cannot begin under §1231(a)(1)(B). Stated differently, respondents read the “[e]xcept as” language as another limit on when the removal period is triggered, a reading that the dissent endorses. Even assuming that respondents did not forfeit this argument by failing to raise it in their brief, it fails on the merits. Section 1231(a)(1)(A) relates to the length of the removal period, and it sets the default for that period at 90 days. It does not, as respondents suggest, serve as the “gateway” for when the removal period begins. Those triggers appear in §1231(a)(1)(B). Nor does it simply offer “basic operative language” regarding what DHS must do. The provision’s focus is the length of time that DHS has to remove an alien once the alien is ordered removed. And the most natural reading of the “except as otherwise provided” clause is that DHS must remove an alien within 90 days unless another subsection of §1231 specifically contemplates that the removal period can exceed 90 days. … The statutory structure confirms the textual reading. Consider first the structure of §1231 itself, which is titled “Detention and removal of aliens ordered removed.” Every provision applicable to respondents is located in §1231. Respondents’ orders of removal are reinstated against them under §1231(a)(5). The bar on reopening or reviewing those removal orders, as well as the requirement that DHS remove aliens subject to reinstated orders, also appears in §1231(a)(5). And the provision allowing respondents to seek withholding-only relief comes from §1231(b)(3)(A). It would thus be odd if the provision governing respondents’ detention was located in §1226, rather than §1231, which contains its own detention provision. Moreover, the inclusion of the statutory-withholding provision in §1231, grouped with other provisions that relate to where DHS may remove an alien, illustrates how withholding-only relief fits within the removal process generally. … Respondents’ contrary reading would undermine Congress’s judgment regarding the detention of different groups of aliens who posed different risks of flight: aliens detained under §1226 before having been ordered removed and those held under §1231 after already having been ordered removed. We reverse the judgment of the U. S. Court of Appeals for the Fourth Circuit. It is so ordered. Lineup: Alito, joined by Roberts, Kavanaugh, and Barrett. Concurrence except as to footnote 4 and concurrence in the judgment by Thomas, joined by Gorsuch. Dissent by Breyer, joined by Sotomayor and Kagan. Concurrence except as to footnote 4 and concurrence in the judgment (Thomas, joined by Gorsuch) This Court has an “independent obligation” to assess whether it has jurisdiction. We do not have it here. Congress has restricted our jurisdiction in removal cases. Under §1252(b)(9), we can exercise judicial review of “questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien” in only two circumstances. One is to review a final order of removal. §1252(b)(9). The other is to exercise an express grant of jurisdiction elsewhere in §1252. Neither circumstance is present here. Therefore, if respondents’ claims “aris[e] from any action taken or proceeding brought to remove an alien,” the jurisdictional bar in §1252(b)(9) applies. And for all the reasons I discussed in Jennings, challenges to detention during the removal process, such as this one, “fall within the heartland of §1252(b)(9).” Although Jennings concerned aliens whom the Government had not yet ordered removed whereas the aliens here have removal orders reinstated against them, the result does not change. Section 1252(b)(9) “cover[s] all claims related to removal proceedings.” That includes claims arising after final orders of removal are issued, such as withholding-of-removal claims. And it includes claims like the ones here, which involve a part “of the deportation process that necessarily serve[s] the purpose of ensuring an alien’s removal.” In light of this jurisdictional problem, the Court should vacate and remand with instructions to dismiss for lack of jurisdiction. But “because the Court has held that we have jurisdiction in cases like these” and the Court’s opinion is otherwise correct, I join it except for footnote four. Dissent (Breyer, joined by Sotomayor and Kagan) Respondents in this case are noncitizens previously ordered removed from the United States. After leaving the United States, each of them later returned (illegally). The Government then reinstated their original removal orders. Each of the respondents argued to immigration authorities that the Government could not remove them because they reasonably feared persecution or torture in the country to which the Government sought to send them. And pursuant to the United States’ international commitments, the immigration authorities began the process of determining whether the Government should grant withholding-only relief (the withholding or deferral of removal). The question in this case is whether respondents are entitled to a bond hearing while immigration authorities engage in the lengthy process of determining whether respondents have the legal right (because of their fear of persecution or torture) to have their removal withheld. The Court points to two statutory provisions that might answer that question. The first, §1226, is a more general provision governing detention, and favors respondents. It says that “pending a decision on whether the alien is to be removed from the United States,” 8 U. S. C. §1226(a), the Government “may release the alien on . . . bond” or “conditional parole.” The second, §1231, is a provision that more specifically applies to “aliens ordered removed,” and can be read to favor the Government because it does not expressly provide for a bond hearing during what it calls the 90-day “removal period.” The Government claims that §1231 applies to respondents and allows the Government to deny them bond hearings while their withholding-only relief proceedings take place. The Court agrees with the Government. In its view, respondents’ circumstances fall within the scope of what §1231 calls a “removal period.” And it believes that section implicitly allows the Government to deny bond hearings during the 90-day removal period. I agree that we have jurisdiction to review the decision below. In my view, however, respondents do not fall within the scope of §1231. Hence, §1231 does not apply. Rather, respondents’ circumstances are governed by the more general section that concerns the conditions of detention pending a final determination on removal. And they are entitled to the bond hearings for which that general section provides. ... The procedures to determine whether an alien qualifies for withholding-only relief are complex. Any alien, including one “whose removal is reinstated” under 8 U. S. C. §1231(a)(5), must be afforded the opportunity to “expres[s] a fear of returning to the country of removal” specified in the order of removal. An asylum officer will then interview the individual to determine whether that individual “has a reasonable fear of persecution or torture.” If so, an immigration judge will “full[y] conside[r] . . . the request for withholding of removal only.” If the immigration judge denies the claim, the alien can appeal to the Board of Immigration Appeals (BIA) and, as applicable, seek judicial review. Studies have found that this procedure often takes over a year, with some proceedings lasting well over two years before eligibility for withholding-only relief is resolved. … Studies have also found that, once withholding-only relief is granted, the alien is ordinarily not sent to another, less dangerous country. Rather, the alien typically remains in the United States for the foreseeable future. … These figures—particularly the length of time needed to complete the related administrative proceedings—raise an obvious question. Typically, Congress permits aliens initially placed in removal proceedings to apply for bond (while such proceedings transpire). See 8 U. S. C. §1226(a)(2). That makes sense. A bond hearing does not mean an alien will run away. Bond is normally granted only if the immigration judge has assurance that the alien will not abscond and is instead “likely to appear for any future proceeding.” And an alien’s release from detention during such proceedings may have collateral effects. I can understand why Congress might not want to grant a bond hearing to an alien whose circumstances fall within the removal period. That period, after all, should normally be brief. The statute says “90 days.” But why would Congress want to deny a bond hearing to individuals who reasonably fear persecution or torture, and who, as a result, face proceedings that may last for many months or years (while their withholding-only proceedings wend their way toward completion)? I can find no satisfactory answer to this question. … Does the statutory provision’s language nonetheless require the majority’s result? In my view, it does not. Reread the first seven words of that provision’s general rule. They say that the provision’s removal rules apply “[e]xcept as otherwise provided in this section.” And later in the same section, following that “except clause,” the restriction-on-removal provision says that “the Attorney General may not remove” an alien who falls within its terms. Why does that provision, then, not count as what the general statutory rule calls an “except[ion]?” … The majority believes we must read the statute differently. It reads the “except clause” as serving only to extend the “length of the removal period,” ante, at 16–17, not to exempt the removal procedures altogether. In its view, the time during which respondents seek administrative relief from the order of removal due to a reasonable fear of persecution or torture nevertheless remains within the “removal period,” which the restriction-on-removal provision simply extends. While this is a possible reading, it is not what the statute actually says. The statute begins with the phrase “except as otherwise provided in this section,” and it follows that clause with basic operative language, namely, “the Attorney General shall remove the alien.” §1231(a)(1)(A). It does not say, “within a period of 90 days except if this section provides for a longer period.” The majority’s interpretation is an awkward way to read that sentence. … I can find no good reason why Congress would have wanted categorically to deny bond hearings to those who, like respondents, seek to have removal withheld or deferred due to a reasonable fear of persecution or torture. And I do not agree with the majority’s reading of the statute’s language as denying them that opportunity. If, as I believe, §1231 does not apply to the withholding-only relief proceedings before us, then, as the majority concedes, §1226 applies, and grants them bond hearings. I would apply that provision and afford respondents bond hearings. With respect, I dissent https://www.supremecourt.gov/opinions/20pdf/19-897_c07d.pdf
|
|
#
?
Jun 29, 2021 16:03
|
|
|
curious to see how the FTC got to the conclusion of Facebook controlling 60% of the market of "personal social networks"
|
|
#
?
Jun 29, 2021 16:47
|
|
|
Opinions! 3 of 3 for June 29. 2 opinions left after today (they will come on Thursday, July 1). PENNEAST PIPELINE CO., LLC v. NEW JERSEY ET AL. TLDR: The federal government can use eminent domain against property owned by a state. And it can delegate that power down to private parties. So PennEast can condemn property owned by New Jersey for a natural gas pipeline. Holding / Majority Opinion (Roberts) Eminent domain is the power of the government to take property for public use without the consent of the owner. It can be exercised either by public officials or by private parties to whom the power has been delegated. And it can be exercised either through the initiation of legal proceedings or simply by taking possession up front, with compensation to follow. Since the founding, the United States has used its eminent domain authority to build a variety of infrastructure projects. It has done so on its own and through private delegatees, and it has relied on legal proceedings and upfront takings. It has also used its power against both private property and property owned by the States. This case involves one of the ways the federal eminent domain power can be exercised: through legal proceedings initiated by private delegatees against state-owned property. Specifically, we are asked to decide whether the Federal Government can constitutionally confer on pipeline companies the authority to condemn necessary rights-of-way in which a State has an interest. We hold that it can. Although nonconsenting States are generally immune from suit, they surrendered their immunity from the exercise of the federal eminent domain power when they ratified the Constitution. That power carries with it the ability to condemn property in court. Because the Natural Gas Act delegates the federal eminent domain power to private parties, those parties can initiate condemnation proceedings, including against state-owned property. … In 1938 Congress passed the Natural Gas Act to regulate the transportation and sale of natural gas in interstate commerce. Congress vested the Federal Power Commission (now the Federal Energy Regulatory Commission) with the authority to administer the NGA, including by approving the construction and extension of interstate pipelines. The NGA provides that in order to build an interstate pipeline, a natural gas company must obtain from FERC a certificate reflecting that such construction “is or will be required by the present or future public convenience and necessity.”...In 1947, [Congress] amended the NGA to authorize certificate holders to exercise the federal eminent domain power. … By enabling FERC to vest natural gas companies with the federal eminent domain power, the 1947 amendment ensured that certificates of public convenience and necessity could be given effect. Petitioner PennEast Pipeline Co. is a joint venture owned by several energy companies. In 2015, PennEast applied to FERC for a certificate of public convenience and necessity authorizing the construction of a 116-mile pipeline from Luzerne County, Pennsylvania, to Mercer County, New Jersey. … In January 2018, FERC granted PennEast a certificate of public convenience and necessity. FERC later denied rehearing of this decision, and several parties, including respondent New Jersey, petitioned for review in the D. C. Circuit. The D. C. Circuit has held those proceedings in abeyance pending resolution of this case. Weeks after FERC granted its application, PennEast filed various complaints in Federal District Court in New Jersey. PennEast sought to exercise the federal eminent domain power under §717f(h) to obtain rights-of-way along the pipeline route approved by FERC, and to establish just compensation for affected owners. PennEast also sought preliminary and permanent injunctive relief allowing it [to] take immediate possession of each property in advance of any award of just compensation. As relevant here, PennEast sought to condemn two parcels in which New Jersey asserts a possessory interest, and 40 parcels in which the State claims nonpossessory interests, such as conservation easements. PennEast also sought to condemn parcels in which respondent New Jersey Conservation Foundation holds an interest. New Jersey moved to dismiss PennEast’s complaints on sovereign immunity grounds. … We begin by addressing a jurisdictional issue raised by the United States….The United States now argues that the Third Circuit lacked jurisdiction to decide that question under 15 U. S. C. §717r(b), which gives the court of appeals reviewing FERC’s certificate order (here, the D. C. Circuit) “exclusive” jurisdiction to “affirm, modify, or set aside such order.” According to the United States, New Jersey’s statutory argument, if accepted, would modify FERC’s order because FERC “expressly stated” in the order that PennEast “would have authority to acquire the necessary land or property to construct the approved facilities by exercising the right of eminent domain.” PennEast and the respondents both argue that the United States is wrong. We agree. New Jersey does not seek to modify FERC’s order; it asserts a defense against the condemnation proceedings initiated by PennEast. To determine whether the District Court correctly rejected New Jersey’s defense, the Third Circuit needed to decide whether §717f(h) grants natural gas companies the right to bring condemnation suits against States. Its conclusion that §717f(h) does not authorize such suits did not “modify” or “set aside” FERC’s order, which neither purports to grant PennEast the right to file a condemnation suit against States nor addresses whether §717f(h) grants that right. … Turning to New Jersey’s sovereign immunity defense, we begin by discussing the federal eminent domain power. Since the founding, the Federal Government has exercised its eminent domain authority through both its own officers and private delegatees. And it has used that power to take property interests held by both individuals and States. Section 717f(h) is an unexceptional instance of this established practice. Governments have long taken property for public use without the owner’s consent. Although the term “eminent domain” appears to have been coined by Grotius, the history of the power may stretch back to biblical times. … When the Constitution and Bill of Rights were ratified, they did not include the words “eminent domain.” The Takings Clause of the Fifth Amendment (“nor shall private property be taken for public use, without just compensation”) nevertheless recognized the existence of such a power. Shortly after the founding, the Federal Government began exercising its eminent domain authority in areas subject to exclusive federal jurisdiction. ... By the second half of the 19th century, however, this Court confirmed that federal eminent domain extended to property within state boundaries as well. In Kohl v. United States, we held that the United States could condemn land in Ohio to construct a federal building. While Kohl involved the condemnation of private land, we have since explained that federal eminent domain applies to state property interests as well. In Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., we upheld an Act of Congress authorizing construction of a dam and a reservoir that would inundate thousands of acres of state-owned land. There, we made explicit a point that was implicit in Kohl’s reasoning: “The fact that land is owned by a state is no barrier to its condemnation by the United States.” For as long as the eminent domain power has been exercised by the United States, it has also been delegated to private parties. It was commonplace before and after the founding for the Colonies and then the States to authorize the private condemnation of land for a variety of public works. The Federal Government was no different. As early as 1809, Congress authorized private parties to exercise the eminent domain power—including through the initiation of direct condemnation proceedings—within areas subject to federal jurisdiction. In the years following Kohl, the Court confirmed that private delegatees can exercise the federal eminent domain power within the States as well. Our decision in Luxton v. North River Bridge Co., is clear on this point. Congress authorized a corporation to build a bridge between New York and New Jersey, and to condemn property as necessary along the way. Luxton—who owned land in Hoboken against which the corporation had brought condemnation proceedings—objected on the ground that Congress had unconstitutionally delegated its eminent domain power to the corporation. We rejected Luxton’s challenge, explaining that Congress “may, at its discretion, use its sovereign powers, directly or through a corporation created for that object, to construct bridges for the accommodation of interstate commerce.” Id., at 530. These powers, we noted, could be exercised “with or without a concurrent act of the State in which the lands lie.” State property was not immune from the exercise of delegated eminent domain power. In fact, this is not the first time New Jersey has tried to thwart such a delegation. In Stockton v. Baltimore & N. Y. R. Co., [circuit Justice Bradley] considered a challenge by New Jersey to an Act of Congress authorizing a New York corporation to build a bridge on state-owned land. The Secretary of War had approved the plans for the bridge, as required by the Act, and the corporation had begun preparing for construction. New Jersey sought an injunction, arguing among other things that an out-of-state corporation could not operate within its borders, and that the corporation could not take its land without its consent. Justice Bradley dismissed these arguments, reasoning that “if congress, in the execution of its powers, chooses to employ the intervention of a proper corporation, whether of the state, or out of the state, we see no reason why it should not do so.”...Just a few years after Stockton, Justice Bradley’s views were adopted by the full Court. … The cases above paint a clear picture: Since its inception, the Federal Government has wielded the power of eminent domain, and it has delegated that power to private parties. We have observed and approved of that practice. The eminent domain power may be exercised—whether by the Government or its delegatees—within state boundaries, including against state property. ... The respondents and the principal dissent do not dispute that the NGA empowers certificate holders to condemn private property. They argue instead that sovereign immunity bars condemnation actions against nonconsenting States. … “States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution.” When “the States entered the federal system,” they did so “with their sovereignty intact.” Although the Court initially held that States could be subject to suit by citizens of other States, the ratification of the Eleventh Amendment soon corrected this error. That Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Our decision in Hans v. Louisiana, clarified that States retain their immunity from suit regardless of the citizenship of the plaintiff. Since Hans, “we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms.” Under our precedents, a State may be subject to suit only in limited circumstances. A State may of course consent to suit, although such consent must be “unequivocally expressed.” Congress may also abrogate state sovereign immunity under the Fourteenth Amendment, again assuming it does so with the requisite clarity . And a State may be sued if it has agreed to suit in the “plan of the Convention,” which is shorthand for “the structure of the original Constitution itself.” The “plan of the Convention” includes certain waivers of sovereign immunity to which all States implicitly consented at the founding. We have recognized such waivers in the context of bankruptcy proceedings, suits by other States, and suits by the Federal Government. The respondents and the dissent argue that private parties cannot condemn state-owned property under §717f(h) because there is no applicable exception to sovereign immunity. … Beginning with the argument that Congress cannot subject States to suit pursuant to its commerce power, it is undoubtedly true under our precedents that—with the exception of the Bankruptcy Clause, “Article I cannot justify haling a State into federal court” In Seminole Tribe of Fla. v. Florida, we held that state sovereign immunity “restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.” ... But congressional abrogation is not the only means of subjecting States to suit. As noted above, States can also be sued if they have consented to suit in the plan of the Convention. And where the States “agreed in the plan of the Convention not to assert any sovereign immunity defense,” “no congressional abrogation [is] needed.” ... the States consented in the plan of the Convention to the exercise of federal eminent domain power, including in condemnation proceedings brought by private delegatees. The plan of the Convention reflects the “fundamental postulates implicit in the constitutional design.” And we have said regarding the exercise of federal eminent domain within the States that one “postulate of the Constitution [is] that the government of the United States is invested with full and complete power to execute and carry out its purposes.” Put another way, when the States entered the federal system, they renounced their right to the “highest dominion in the lands comprised within their limits.” The plan of the Convention contemplated that States’ eminent domain power would yield to that of the Federal Government “so far as is necessary to the enjoyment of the powers conferred upon it by the Constitution.” … The respondents and the dissent do not dispute that the Federal Government enjoys a power of eminent domain superior to that of the States. Nor do they dispute that the Federal Government can delegate that power to private parties. They instead assert that the only “question is whether Congress can authorize a private party to bring a condemnation suit against a State.” And they argue that because there is no founding-era evidence of such suits, States did not consent to them when they entered the federal system. The flaw in this reasoning is that it attempts to divorce the eminent domain power from the power to bring condemnation actions—and then argue that the latter, so carved out, cannot be delegated to private parties with respect to state-owned lands. But the eminent domain power is inextricably intertwined with the ability to condemn. We have even at times equated the eminent domain power with the power to bring condemnation proceedings. Separating the eminent domain power from the power to condemn—when exercised by a delegatee of the Federal Government—would violate the basic principle that a State may not diminish the eminent domain authority of the federal sovereign. If private parties authorized by the Federal Government were unable to condemn States’ property interests, then that would leave delegatees with only one constitutionally permissible way of exercising the federal eminent domain power: Take property now and require States to sue for compensation later. [*In addition, all agree that Congress could authorize FERC itself to condemn the exact same property interests, pursuant to the exact same certificate of public convenience and necessity, and then transfer those interests to PennEast following a legal proceeding in which the Government would presumably act in concert with PennEast.] It is difficult to see how such an arrangement would vindicate the principles underlying state sovereign immunity. … Perhaps sensing the incongruity of such a result, New Jersey has taken the extreme stance that there is no constitutional mechanism for Federal Government delegatees to exercise the eminent domain power against the States. This position is untenable. “[J]ust as permission to harvest the wheat on one’s land implies permission to enter on the land for that purpose,” so too does authorization to take property interests imply a means through which those interests can be peaceably transferred. An eminent domain power that is incapable of being exercised amounts to no eminent domain power at all. And that is contrary to the plan of the Convention for the reasons discussed in Kohl, Stockton, Cherokee Nation, and Luxton. … We conclude by addressing the respondents’ argument (which the dissent does not join) that even if States agreed in the plan of the Convention to condemnation suits by Federal Government delegatees, the NGA does not authorize such suits with the requisite clarity. The Third Circuit adopted this position below, concluding that §717f(h) did not use the “unmistakably clear” language necessary to delegate the Federal Government’s ability to sue nonconsenting States. … The respondents are certainly correct that a clear statement is required to subject States to suit in the waiver and abrogation contexts. But they have again misconstrued the issue in this case as whether the United States can delegate its ability to sue States. The issue is instead whether the United States can delegate its eminent domain power to private parties. Regardless whether the Federal Government must speak with unmistakable clarity when delegating its freestanding exemption from state sovereign immunity, there is no similar requirement when the Federal Government authorizes a private party to exercise its eminent domain power. The respondents do not dispute that the federal eminent domain power can be delegated, or that §717f(h) speaks with sufficient clarity to delegate the power to condemn privately owned land. They argue only that §717f(h) fails to delegate the power to condemn States’ property interests. But the federal eminent domain power is “complete in itself,” and the States consented to the exercise of that power—in its entirety—in the plan of the Convention. The States thus have no immunity left to waive or abrogate when it comes to condemnation suits by the Federal Government and its delegatees. … [These] condemnation actions do not offend state sovereignty, because the States consented at the founding to the exercise of the federal eminent domain power, whether by public officials or private delegatees. Because the Third Circuit reached a contrary conclusion, we reverse the judgment below and remand the case for further proceedings consistent with this opinion. It is so ordered. Lineup: Roberts, joined by Breyer, Alito, Sotomayor, and Kavanaugh. Dissent by Gorsuch, joined by Thomas. Dissent by Barrett, joined by Thomas, Kagan, and Gorsuch. Dissent (Gorsuch, joined by Thomas) I join JUSTICE BARRETT’s dissenting opinion in full, which ably explains why this case implicates New Jersey’s structural immunity and how New Jersey never waived that immunity in the summer months of 1787. I write only to address one recurring source of confusion in this area and which the Court does not address. In the same breath, the district court said an Eleventh Amendment objection “is a challenge to a district court’s subject matter jurisdiction” and yet “it does not implicate federal subject matter jurisdiction.” Both statements cannot be true. This Court, it seems, has contributed to the confusion. It has “sometimes referred to the States’ immunity from suit as ‘Eleventh Amendment immunity.’” Though it might be a “convenient shorthand,” the phrase is “a misnomer.” States have two distinct federal-law immunities from suit. The first—“structural immunity”—derives from the structure of the Constitution. Because structural immunity is a constitutional entitlement of a sovereign State, it applies in both federal tribunals, and in state tribunals. And it applies regardless of whether the plaintiff is a citizen of the same State, a citizen of a different State, or a non-citizen—like a foreign nation, or an Indian tribe. Structural immunity sounds in personal jurisdiction, so the sovereign can waive that immunity by “consent” if it wishes. The second—what is properly termed “Eleventh Amendment immunity”—derives from the text of the Eleventh Amendment. In light of its swift adoption in response to Chisholm v. Georgia, this Court has read the Eleventh Amendment as pointing to the structural principle just discussed. But the Eleventh Amendment can do two things at once. In addition to pointing us back to the States’ structural immunity, it also provides an ironclad rule for a particular category of diversity suits: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” This text “means what it says. It eliminates federal judicial power over one set of cases: suits filed against states, in law or equity, by diverse plaintiffs.” The Eleventh Amendment sometimes does less than structural immunity: It applies only in federal court (“the Judicial power of the United States”). And it applies only to diversity suits (“by Citizens of another State”). But sometimes the Amendment does more: It imposes an Article III subject-matter jurisdiction barrier (“The judicial Power . . . shall not be construed to extend”), not a mere privilege of personal jurisdiction. And it admits of no waivers, abrogations, or exceptions (“to any suit in law or equity”). This case appears to present “the rare scenario” that comes within the Eleventh Amendment’s text. Because PennEast sued New Jersey in federal court, this suit implicates “the Judicial power of the United States.” This condemnation suit, by any stretch, is “a[ ] suit in law or equity.” PennEast “commenced” this suit “against” New Jersey. It named the State in its complaint as a defendant as required by the Civil Rules….Because the parties agree that PennEast is a citizen of Delaware, this suit is brought “by [a] Citizen[ ] of another State.” If that’s all true, then a federal court “shall not” entertain this suit. The Eleventh Amendment’s text, no less than the Constitution’s structure, may bar it. This Court, understandably, does not address that issue today because the parties have not addressed it themselves and “there is no mandatory ‘sequencing of jurisdictional issues.’” The lower courts, however, have an obligation to consider this issue on remand before proceeding to the merits. Dissent (Barrett, joined by Thomas, Kagan, and Gorsuch) A straightforward application of our precedent resolves this case. Congress passed the Natural Gas Act in reliance on its power to regulate interstate commerce, and we have repeatedly held that the Commerce Clause does not permit Congress to strip the States of their sovereign immunity. Recognizing that barrier, the Court insists that eminent domain is a special case. New Jersey has no sovereign immunity to assert, it says, because the States surrendered to private condemnation suits in the plan of the Convention. This argument has no textual, structural, or historical support. Because there is no reason to treat private condemnation suits differently from any other cause of action created pursuant to the Commerce Clause, I respectfully dissent. As a “general rule,” Congress cannot circumvent state sovereign immunity’s limitations on the judicial power through its Article I powers. Thus, even in areas where Article I grants it “complete lawmaking authority,” Congress lacks a tool that it could otherwise use to implement its power: “authorization of suits by private parties against unconsenting States.” Consistent with this principle, we have rejected arguments that the Indian Commerce Clause, the Interstate Commerce Clause, or the Intellectual Property Clause allows Congress to abrogate a State’s immunity from suit. We have recognized but one exception to this general limit on Congress’ Article I powers: the Bankruptcy Clause. Based on the “principally in rem” nature of bankruptcy jurisdiction and the “‘unique history’” of that clause, we reasoned that States “already ‘agreed in the plan of the Convention not to assert any sovereign immunity defense’ in bankruptcy proceedings.” Other than this “good-for-one-clause-only holding,” we have not held that Article I trumps state sovereign immunity. State surrender of immunity to private suits is therefore rare in our constitutional system. Nonetheless, the Court insists that private condemnation suits are one of the rare exceptions. According to the Court, the States surrendered their immunity to private condemnation suits in the “plan of the Convention.” Ante, at 15. Making this showing is no easy task. We will not conclude that States relinquished their sovereign immunity absent “compelling evidence that the Founders thought such a surrender inherent in the constitutional compact.” The Court accepts PennEast’s argument that there is such compelling evidence here. The reasoning goes like this: States “surrendered any immunity from the federal government’s eminent-domain power in the plan of the convention”; when they did so, “they were consenting to that power as it was then ‘known’”; and “[a]t the Founding, eminent domain was universally known as a power that could be delegated to private parties.” So, the argument concludes, the States “were consenting to a power that the federal government could exercise either itself or through delegations to private parties.” The States “simply do not have any immunity to invoke in this context.” These premises warrant clarification. First, the Constitution enumerates no stand-alone “eminent-domain power.” The Court recognizes—as does our precedent— that the Federal Government may exercise the right of eminent domain only “so far as is necessary to the enjoyment of the powers conferred upon it by the Constitution.” Any taking of property provided for by Congress is thus an exercise of another constitutional power—in the case of the Natural Gas Act, the Commerce Clause—augmented by the Necessary and Proper Clause. So when Congress allows a private party to take property in service of a federally authorized project, it is choosing a means by which to carry an enumerated power into effect. Second, the assertion that the States “surrendered any immunity from the federal government’s eminent-domain power in the plan of the convention” implies that eminent domain occupies a unique place in the constitutional structure. But as just explained, a taking is a garden-variety exercise of an enumerated power like the Commerce Clause. The Federal Government can exercise that power to take state land. And it can take that land via a condemnation action against a nonconsenting State not because eminent domain is special, but for the same reason it can sue a nonconsenting State in any other proceeding: “States have no sovereign immunity as against the Federal Government.” … So while the Court casts the inquiry as one about the scope of the States’ consent to the Federal Government’s “eminent-domain power,” that is the wrong way to think about the problem. Here is the right way: Title 15 U. S. C. §717f(h) is an exercise of Congress’ power to regulate interstate commerce. Congress cannot authorize private suits against a nonconsenting State pursuant to its Commerce Clause power. Nor does the Commerce Clause itself abrogate state sovereign immunity. Therefore, Congress cannot enable a private party like PennEast to institute a condemnation action against a nonconsenting State like New Jersey. The Court’s proposed escape route from this analysis— that the States relinquished their immunity from private condemnation suits in the plan of the Convention—is a dead end. There is no “Eminent Domain Clause” on which the Court can rely. … The Court relies exclusively on the fact that Congress and the States, like the Colonies before them, have consistently authorized private parties to exercise the right of eminent domain to obtain property for mills, roads, and other public improvements. As the Court notes, Congress did so in the early days of the Republic only within “areas subject to exclusive federal jurisdiction,” though we later held that Congress could take property within state boundaries as well. This history is long and undisputed, and the Court presents it as conclusive evidence on PennEast’s side of the ledger. But the question before us is not whether Congress can authorize a private party to exercise the right of eminent domain against another private party, which is the proposition this history supports. Nor is it whether Congress can authorize a private entity to take state property through means other than a condemnation suit. The question is whether Congress can authorize a private party to bring a condemnation suit against a State. And on that score, the Court comes up dry. … The Court cannot muster even a single decision involving a private condemnation suit against a State, let alone any decision holding that the States lack immunity from such suits. It relies exclusively on suits brought by States, suits brought by the United States, suits brought by private parties against other private parties, and suits brought by Indian tribes against private parties—none of which implicate state sovereign immunity. … Moreover, no one disputes that for 75 years after the founding, it was unsettled whether the Federal Government could even exercise eminent domain over private land within a State. It was then 77 years more before we held that “[t]he fact that land is owned by a state is no barrier to its condemnation by the United States.” Given the length of time that these questions lingered, it strains credulity to say that history unequivocally establishes that States surrendered their immunity to private condemnation suits in the plan of the Convention. … The Court rejects this conclusion on the ground that state immunity from private condemnation suits would render the federal eminent domain power incomplete. The Court is wrong. To begin with, sovereign immunity would not permit States to obstruct construction of a federally approved pipeline. … State sovereign immunity indisputably makes it harder for Congress to accomplish its goals, as we have recognized many times before. For example, Congress cannot abrogate state sovereign immunity to pursue the “proper Article I concerns” of “provid[ing] a uniform remedy for patent infringement and [placing] States on the same footing as private parties under that regime.” Nor can it authorize private suits against States to “‘secur[e]’ a copyright holder’s ‘exclusive Right[s]’ as against a Stat[e],” or to ensure that States negotiate in good faith with Indian tribes. The same is true here: Sovereign immunity limits how Congress can obtain state property for pipelines [the dissent agrees that there are several indirect methods available]. This inhibition of Congress is not, however, a reason to set sovereign immunity aside. It is instead a deliberately chosen feature of the constitutional design. While the Court cloaks its analysis in the “plan of the Convention,” it seems to be animated by pragmatic concerns. Congress judged private condemnation suits to be the most efficient way to construct natural gas pipelines, and to this point, States have cooperated. But now that New Jersey has chosen to object, it threatens to “thwart” federal policy. If the Court sided with New Jersey and Congress did not amend §717f(h), New Jersey (not to mention other States) could hold up construction of the pipeline indefinitely. And even if §717f(h) were amended, a new statutory procedure might be less efficient than permitting PennEast to sue New Jersey directly. Holding New Jersey immune from suit thus would reward its intransigence. Our precedents provide a ready response: The defense of sovereign immunity always has the potential of making it easier for States to get away with bad behavior—like copyright infringement, patent infringement, and even reneging on debts. Indeed, concern about States using sovereign immunity to thwart federal policy is precisely why many Justices of this Court have dissented from our sovereign immunity jurisprudence. … It would be very odd for the government’s right to take property for public use to exist only if private parties can exercise it. That, however, is the Court’s position. And by adopting it, the Court is able to make a §717f(h) action sound like something other than what it is: a private suit against a State that Congress has authorized pursuant to its commerce power. This Court has long held that States did not surrender their sovereign immunity to suits authorized pursuant to Congress’ power to regulate interstate commerce, and no historical evidence suggests a different result obtains for condemnation suits brought by private parties against nonconsenting States. Because state sovereign immunity bars these suits, I respectfully dissent. https://www.supremecourt.gov/opinions/20pdf/19-1039_8n5a.pdf
|
|
#
?
Jun 29, 2021 17:18
|
|
|
ulmont posted:...  Could someone explain the significance of the 9th circuit RICO thing, or why it's lol?
|
|
#
?
Jun 29, 2021 21:10
|
|
|
lmao so private companies can just seize land from states for whatever they want so long as the Federal government gives them the thumbs up. What a shitshow.
|
|
#
?
Jun 29, 2021 21:12
|
|
|
Sydin posted:lmao so private companies can just seize land from states for whatever they want so long as the Federal government gives them the thumbs up. What a shitshow. As always, states have the right to suck it.
|
|
#
?
Jun 29, 2021 21:23
|
|
|
Sydin posted:lmao so private companies can just seize land from states for whatever they want so long as the Federal government gives them the thumbs up. What a shitshow. waiting for someone to weaponize this to keep a park from becoming a gentrified mixed-use boomerplex
|
|
#
?
Jun 29, 2021 21:24
|
|
|
In this particular instance NJ was trying to block the construction of an oil pipeline and the immediate beneficiary of the ruling was a privately held oil company, which seems not great? Perhaps I'm a pessimist but my worry is an eventual GOP controlled executive using this as one weird trick to force blue states with stronger environmental protections into handing land over to oil and gas firms. 
|
|
#
?
Jun 29, 2021 21:26
|
|
|
Sydin posted:In this particular instance NJ was trying to block the construction of an oil pipeline and the immediate beneficiary of the ruling was a privately held oil company, which seems not great? Perhaps I'm a pessimist but my worry is an eventual GOP controlled executive using this as one weird trick to force blue states with stronger environmental protections into handing land over to oil and gas firms. yes which is why I'm waiting for someone to do a church of satan kind of thing and force the issue
|
|
#
?
Jun 29, 2021 21:29
|
|
|
Platystemon posted:Strip the court of all appellate jurisdiction. So, parking tickets then? Occasional DUIs and hit and runs?
|
|
#
?
Jun 29, 2021 21:50
|
|
|
The private company thing seems mostly irrelevant to the outcome. Even without that, federal government could eminent domain State land, then lease it to the pipeline company. It seems mostly about what happens when federal eminent domain meets State owned landSolkanar512 posted:So, parking tickets then? Occasional DUIs and hit and runs? Foxfire_ fucked around with this message at 21:56 on Jun 29, 2021 |
|
#
?
Jun 29, 2021 21:53
|
|
|
Solkanar512 posted:So, parking tickets then? Occasional DUIs and hit and runs? People suing a state or two states suing each other does happen pretty often. for example, PENNEAST PIPELINE CO., LLC v. NEW JERSEY ET AL. in a lot of those cases SCOTUS has original jurisdiction at the same time lower courts do. this is notionally a little weird and i'm sure there are some interesting ramifications i don't understand I feel like scotus not having original jurisdiction when the federal government is a party has to be an oversight by the framers, but it's right thar in black and white. Goatse James Bond fucked around with this message at 22:01 on Jun 29, 2021 |
|
#
?
Jun 29, 2021 21:59
|
|
|
Sydin posted:lmao so private companies can just seize land from states for whatever they want so long as the Federal government gives them the thumbs up. What a shitshow. No. The federal government's power of eminent domain is not unlimited (but see Kelo). This just says that if the federal government could take a state's land in a federal court, then the federal government can also delegate that taking power to a private entity (railroads and power companies already have very similar powers). Mr. Nice! posted:As always, states have the right to suck it. Eh. I think this case should have been 7-2 rather than 5-4. Sydin posted:In this particular instance NJ was trying to block the construction of an oil pipeline and the immediate beneficiary of the ruling was a privately held oil company, which seems not great? It's not amazing, but (a) the pipeline company clearly could have done this to condemn privately owned land in New Jersey based on the federal authorization and (b) the federal government clearly could have done this to condemn state owned land in New Jersey, so it was more like the state's "one weird trick to avoid the federal eminent domain power" not working. Foxfire_ posted:The private company thing seems mostly irrelevant to the outcome. Even without that, federal government could eminent domain State land, then lease it to the pipeline company. It seems mostly about what happens when federal eminent domain meets State owned land Not really. The dissents agree that the federal government could take the land, and the debate is just if the federal government could allow the pipeline company to take the land through forcing a state into federal court or not. GreyjoyBastard posted:in a lot of those cases SCOTUS has original jurisdiction at the same time lower courts do. this is notionally a little weird and i'm sure there are some interesting ramifications i don't understand The overlaps are codified. Article III, Section 2 posted:In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. 28 U.S. Code § 1251 posted:Original jurisdiction
|
|
#
?
Jun 29, 2021 22:11
|
|
|
https://mobile.twitter.com/Breaking911/status/1409888670853873669
|
|
#
?
Jun 30, 2021 02:33
|
|
|
I wonder if ginny is lobbying the house/senate
|
|
#
?
Jun 30, 2021 02:38
|
|
|
https://mobile.twitter.com/SCOTUSblog/status/1410007670053117953
|
|
#
?
Jun 30, 2021 02:39
|
|
|
I'm no lawyer but I thought that rational basis (as this would be) basically ensured that there is no law stupid enough for the courts to overturn just for being stupid.
|
|
#
?
Jun 30, 2021 02:44
|
|
|
FAUXTON posted:I wonder if ginny is lobbying the house/senate His position is so sensible that I'm basically squinting at it and tilting my head to figure out what foul end it would truly serve for him to advocate such a position publicly all I can come up with is that he wants to be remembered for better reasons than being a sex pest + sleeping during arguments
|
|
#
?
Jun 30, 2021 02:49
|
|
|
Javid posted:His position is so sensible that I'm basically squinting at it and tilting my head to figure out what foul end it would truly serve for him to advocate such a position publicly It’s part of his belief the commerce clause doesn’t do much and most congressional power should be taken away (he said the same thing in 2005 w/r/t weed).
|
|
#
?
Jun 30, 2021 02:54
|
|
|
lmao Kav's concurrence straight up calling out the realtors association like "yeah it's illegal but it ends in a loving month anyway and during that time the government is going to get aid to people so they can actually pay you the rent they owe, gently caress off you don't need an emergency stay."
|
|
#
?
Jun 30, 2021 03:20
|
|
|
Boy the hate in the replies because the supreme court decided to not kick people out into the streets.
|
|
#
?
Jun 30, 2021 04:55
|
|
|
Javid posted:His position is so sensible that I'm basically squinting at it and tilting my head to figure out what foul end it would truly serve for him to advocate such a position publicly Honestly my guess is that it's meant to be a rueful tone rather than a baffled one, like "why even have a law if you can't kick down a door in berkeley under it anymore" either that or he's seeing recruits flee his favorite NCAA team the huskers and wants to have one recruiting advantage taken away from the pac 12.
|
|
#
?
Jun 30, 2021 05:08
|
|
|
Generally when Thomas has a good take it's because his bizarre reasoning got him there because the stars aligned. Like how textualism is a very stupid interpretative framework but it got Gorsuch to the correct decision in Bostock. Biden's commission seems like it's gonna be a waste if Harvard law professors are this loving stupid: quote:Although people on both sides of the political spectrum would like the Court to interpret the Constitution only as they believe to be correct, that possibility is not available to either side over the long term. He also makes the stupid argument that court packing will end with each side just making the court bigger and bigger that contains this amazing line: quote:The likely consequences of this process would be for the Supreme Court to come to be – and to be seen -- as a kind of legislature in itself, albeit one whose members were selected by the political branches rather than elected. https://www.whitehouse.gov/wp-content/uploads/2021/06/Feldman-Presidential-Commission-6-25-21.pdf Groovelord Neato fucked around with this message at 16:02 on Jun 30, 2021 |
|
#
?
Jun 30, 2021 15:22
|
|
|
Groovelord Neato posted:Generally when Thomas has a good take it's because his bizarre reasoning got him there because the stars aligned. Like how textualism is a very stupid interpretative framework but it got Gorsuch to the correct decision in Bostock. I notice he sidesteps the bad faith acting of the Senate which has rigged the court in their favor. Also, there are other reforms that could be made. Like, a random selection of higher level federal judges.
|
|
#
?
Jun 30, 2021 15:38
|
|
|
I can easily believe Harvard professors are that stupid and/or too stubborn to acknowledge reality since that risks someone then pointing out that ivies aren’t actually amazing schools they’re just social circlejerking for the ruling class.
|
|
#
?
Jun 30, 2021 15:51
|
|
|
Four of the sitting Justices attended Harvard Law School. Four of the remaining five went to Yale Law. I can easily believe that a Harvard Law professor might have a teensy bias toward defending the current setup.
|
|
#
?
Jun 30, 2021 16:01
|
|
|
|
| # ? May 28, 2024 19:37 |
|
|
Looks like the PA Supreme Court just freed Bill Cosby https://mobile.twitter.com/nytimes/status/1410282926969921537
|
|
#
?
Jun 30, 2021 18:10
|
|
