What happened this week at SCOTUS? The government promised us that it could be trusted, Justice Gorsuch was on fire, and my former colleagues were back arguing for property rights.
Yes, I know. Most people were more interested in the argument happening down the street from SCOTUS than with the arguments happening at SCOTUS itself. But for those of us intimately familiar with government litigation shenanigans, it was a particularly interesting week at the Court.
Let’s recap (and you can read my preview, which goes over the facts of the cases, here).
In Campos-Chaves v. Garland, the government pinky promised that we could absolutely, without a doubt, no crossing its fingers behind its back, trust it to play fair. This the case where Congress deliberately created a mandatory one-document notice process for noncitizens scheduled for a removal hearing. Prior, the government had informed people of upcoming hearings and the allegations against them by issuing several different documents. The problem is that if you don’t show up, you can be removed in absentia. So to make sure that notice is reliable, and that the aliens are aware of their rights and the allegations against them, Congress mandated a one-step process and created a method by which people who don't receive adequate notice and then don't appear at the hearing can petition to rescind any resulting removal order.
Yet the government keeps trying to find a way to send multiple notices instead. Here, it sent a notice with the time and date of the hearing “TBA,” and then sent a second updated notice with the specific details. The government contends that notice was proper under a statutory provision that allows the government to send a subsequent notice if necessary to inform someone of a “change” in the date and time. According to the government, the second notice informs the alien that the hearing has been "changed" from TBA to something specific. But according to the plaintiff, the first notice was defective and assigning a date and time does not qualify as a valid “change” that permits a second notice.
Several of the justices seemed worried that if the government were allowed to circumvent the one-step process this way, it would go on to engage in some serious tomfoolery. For instance, it could issue a blank piece of paper as a notice to appear that fails to provide the noncitizen with any of the relevant information (right to an attorney, charges against them), and then a year later issue a notice of hearing with the date and time. Under the government’s theory, the subsequent notice cures the initially defective notice, such that the noncitizen can then be removed in absentia even if they were never informed of the charges against them, their right to an attorney, or any other important information required in the initial notice. Perhaps worse, noncitizens can be removed even if they never received the second notice because they have moved in the interim and the government never apprised them of their obligation to provide an updated address.
In response to these concerns, the government’s attorney tried to assure everyone that such a scenario is unlikely because it has (revocable) regulations in place that kinda somewhat prevent it. Justice Gorsuch wasn’t buying it.
Later he asked:
And again:
That forced the government to rely on administrative convenience arguments: you can’t possibly overturn our current practice because we’ll have to go back and undo all the damage we’ve done and that’s just way, way, way too much damage to undo.
Justice Kagan responded:
But then the gov’t said something that really irked me. Justice Jackson noted that in a previous case, the Court ruled that the government could not rely on a notice of hearing with a “changed” date to cure a initially defective notice of appearance when it comes to something called the stop time rule. She therefore asked why that holding should not carry over here. The government said Congress distinguished between the stop time rule and in absentia removal orders to “cut down on procedural gamesmanship and the abuse of loopholes by non-citizens that could be used to avoid removal.” The king of all procedural pots is calling the kettle black!
To be clear, the government is arguing that noncitizens will be incentivized not to show up, even if they actually know of the time and place of hearing, merely because they didn’t get proper initial notice, and that’s purportedly unfair. But as Justice Sotomayor noted earlier in the argument, they wouldn’t have that “advantage” if the government would just provide adequate notice.
And as Justice Jackson said:
Yet the government’s theory would allow notices to appear that lack all kinds of important information so long as the government sends a subsequent notice of hearing that contains the date and time.
Justice Alito then went on to play clean-up for the government, lobbing softball questions about what would happen if the government tried to engage in such shenanigans. Wouldn’t that lead to lawsuits, he asked? I get the sense he’s on the other side of where I land in this case, but Justice Alito continues to be a deft questioner----a true lawyer’s lawyer---who leads attorneys at oral argument as if they’re on the stand at trial (whether as a party or a hostile witness).
Justice Alito asked tough questions of the other side. For instance, he asked whether it was ordinary use of the English language for someone to say to their friend, who doesn’t yet have a wedding date, “let me know if there’s a change.” I think that gets the inquiry wrong; there is a change, but not in the actual time and date. The time and date didn’t get changed; the circumstances did. Same goes for the government's notices.
Interestingly, the next argument of the day also involved government trying to persuade the justices that it could be trusted. Fikre v. FBI involves the government’s decision to take a man off of the No Fly List after he sued to challenge his having been placed on it in the first place. Normally, a party must make it absolutely clear that the challenged behavior won’t recur again in order to moot a lawsuit. A promise alone won’t suffice; the party has to show there’s some policy or other barrier to resuming the conduct, or repudiate its prior behavior. In this case, the government relies mainly on its promise based on “currently available information” that it won’t put him on again. It therefore suggests it should get a special presumption that it’s not engaged in procedural games, such that its promise should suffice to moot the case.
You can read my tweet thread of the case here. But this sums it up:
Altogether, it was a mixed bag. Some of the justices were sympathetic to the national security concerns present if the government were forced to explain its early behavior, though of the “conservative” justices, Justice Gorsuch was least so. Others seemed to urge that what’s good for the good is good for the gander: the FBI should be held to the same standard as everybody else when arguing mootness. One idea that seemed to gain traction among the justices was Justice Kagan’s argument that the FBI should at least have to present information for in camera review, so the judge could evaluate the force of the government’s claims while also keeping sensitive information secret.
The other big argument of the week was Sheetz v. El Dorado County, which concerns exactions (demands that as a condition of using your property, you must offset a purported effect of your use). Under two earlier Supreme Court cases, Nollan and Dolan, any such demand must have a substantial nexus and rough proportionality to the harm you're supposedly causing. In Sheetz, the Ninth Circuit ruled that generally applicable exactions passed by the legislature (as opposed to one-off discretionary permit demands) are categorially exempt from Nollan and Dolan because---you guessed it---the legislature can be trusted to protect property rights. Or at least, it can be better trusted than individual bureaucrats in a permitting office.
The big surprise of this argument was that at some point, the government’s attorney agreed that legislative exactions are not categorically exempt. Instead, she said, this particular exaction is exempt because it's granular enough and was well-supported, which seems to at least resolve the question presented.
Much of the argument concerned whether the Court’s earlier ruling Koontz, which extended Nollan/Dolan to monetary exactions (as opposed to just demands for property, like easements), could be limited to its facts. There, the government was at least leveraging property (ie. give us an easement or give us your money) whereas here, the government is demanding money and money alone. Some of the justices seemed to think that without a demand for property, the Takings Clause isn’t implicated. But as Sheetz’s attorney noted, a straightforward reading of Koontz (he aruged both) (and both end in -tz!) says that what’s important is that the government is demanding money connected to a desired use of property. And, as Justice Alito brought up, you could characterize the government’s threat to prevent Sheetz from building as a “no build” easement.
Some of the justices also seemed concerned that Sheetz’s argument might implicate taxes or use fees and subject them to Nollan/Dolan scrutiny. Justice Jackson asked whether the doctrines were implicated anytime the government asks for money in connection with property. Sheetz’s attorney answered no, it applies when the government asks for money to offset some purported consequence of the use. It does not necessarily when the government is simply raising funds or asking for compensation after providing a service.
Some of the justices seemed to indicate that they thought the challenged statute satisfied Nollan/Dolan review, to which Justice Gorsuch responded the government could make that argument on remand. Justices Kagan and Sotomayor, however, seemed worried about creating a burden on the government to defend a wide array of legislative action in court.
And so, some themes emerged among the cases argued this week: 1) you can (totally) trust us, and 2) sometimes it’s simply too hard to comply with the Constitution.
This case might wind up helping to end the housing shortage, given that affordable housing mandates and other exactions drive up the price of building and disincentivize affordable housing. Big hopes that in the future, we can build, baby, build.
For more, check out this article by Sheetz’s counsel (also my former boss, Elizabeth's current boss, and one of my favorite people) Larry Salzman, or this piece by the WSJ editorial board.
Favorite things of the week:
Justice Jackson gets it:
Petitioner and respondent, strange bedfellows?
May this never happen to me:
