Briefs Filed in Five U.S. Supreme Court Cases Currently Pending on Petition
February 16, 2018
(Read briefs at links below)
The Supreme Court's winter break is nearly over. Today, February 16, the Justices will meet in their first conference after the break.
Among the petitions on the agenda for upcoming conference is one case in which we filed a brief in support of a petition for certiorari.
We filed four other briefs which remain pending.
DHS v. University of California (17-1003)
On February 2, 2018, we filed an amicus brief with the Court, urging review of the recent California court's injunction against the Trump
Administration's termination of the DACA program. The Trump Administration also appealed that order to the Ninth Circuit, but wants to
avoid the delay that would be caused by obtaining Ninth Circuit review, and has asked the Supreme Court to decide the case before the end
of this session. Two days ago, on February 14, the government filed a letter with the Court, noting that another radical, left-wing federal
judge — this time from New York — had issued a "substantively identical" injunction against the ending of DACA.
Brewer v. Arizona Dream Act Coalition (No. 16-1180)
On May 1, 2017, we filed an amicus brief in the Supreme Court defending the right of the State of Arizona to refuse to issue drivers licenses
to illegal aliens who enjoy temporary protection from deportation based on President Obama's Deferred Action for Childhood Arrivals (DACA) Program.
Last June, the Court had distributed the case for conference, but then asked the federal government to weigh in with its views. Many months passed,
and yesterday, February 14, 2018, Noel Francisco, Solicitor General, filed an amicus brief, arguing that the Court should not take the Arizona case.
Francisco's brief noted that the Trump administration has attempted to rescind the DACA program which forms the basis for the Arizona statute, but
recently was blocked by a federal court in California. The brief argued that the Court should grant the government's petition in the California
case, and rule that DACA was properly rescinded. Essentially, the government argues, after resolving that question in the California case, the
Arizona driver's license issue in this case would be moot.
However, there are still important federalism issues involved in the Arizona case — such as whether the states have any ability to regulate those
within their borders based on immigration status. Francisco's brief, however, argues that those issues alone do not warrant the Court's review.
One might argue that there is no better time to bring a states' rights challenge than with the current administration. However, the administration
may feel that it already has enough fires to deal with, or may be worried how a favorable result for Arizona will affect its ability to crack down on
sanctuary cities.
Brott v. United States (17-712)
On December 14, 2017, we filed an amicus brief in the Supreme Court, supporting the Fifth Amendment rights of landowners to have their takings claims
decided by a constitutionally created Article III court, rather than an Article I tribunal. On December 22, 2017, the Court asked the United States
to file a response to the petition. Recently, the deadline for that response has been extended and now falls next week — February 21, 2018.
Graham v. United States (16-6308)
On November 3, 2016, we filed an amicus brief in the Supreme Court, following up on a January 22, 2016 amicus brief filed in the U.S. Court of Appeals
for the Fourth Circuit. At issue in this case is the ability of the federal government to track a person's movements by forcing a cellular provider to
turn over his "cell site location information" ("CSLI") records. Although the arguments in the case had centered around "reasonable expectations of
privacy," we had urged the Court to consider a person's cell phone data and location as his property even though not a physical object. Since February
of 2017, the Court has distributed the Graham petition for conference on nine separate occasions. Also on the Court's docket is Carpenter v. United
States (16-402), involving a similar issue, in which we also filed a brief. The Carpenter case was briefed and argued, and circulated to the Court in
October of last year. When the Court issues its opinion in Carpenter, we expect to see resolution of the Graham case as well.
Ulbricht v. United States (17-950)
On February 5, 2018, we filed a brief in the Supreme Court, challenging the ability of the government to tap a person's Internet connection for "metadata"
records about his communications, but which do not reveal the content of his communications. Although the case also had been argued as a "reasonable
expectation of privacy case," we noted that privacy is a poor protector of rights, and that a person's Internet traffic is his property no matter where
it is located, how "important" it is, and even if he shares it with a third party for a limited purpose. We expect that the Court will soon consider the
petition, at some point after the government files its brief in March.
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