Welcome to Supreme Court Brief and the second day of the February argument session. The justices could issue opinions this morning—we'll stay in touch. There is only one argument on tap and immigration lawyers have zeroed in on what they see as a serious threat to their clients and themselves. Plus: Justice Thomas repudiates a decision he wrote in 2005 that relied on Chevron deference. And the justices will see a new Justice department face at the lectern tomorrow when Deputy Attorney General Jeffrey Rosen makes his high court debut.

Thanks for reading, and feedback is always welcome and appreciated. Contact us at [email protected] and [email protected] and follow us on Twitter at @MarciaCoyle and @Tonymauro.

 

'Immigration Lawyers Will Not Be Able Ethically To Do Their Jobs'

 

The justices this morning hear arguments in a case that has immigration lawyers worried not only for their clients but also for their ability to practice law.

"Our concern is that the government here is trying to criminalize competent, accurate ethical advice given by immigration lawyers every day," said Matthew Vogel, senior staff attorney at the National Immigration Project.

At issue in the case United States v. Sineneng-Smith is a criminal provision of the Immigration Reform and Control Act. The provision imposes a range of criminal penalties on anyone who "encourages or induces" an alien to enter or reside in the United States, if done knowingly or in reckless disregard of the fact that entry or residency is illegal and if done for commercial or financial gain.

U.S. Solicitor General Noel Francisco argues that the U.S. Court of Appeals for the Ninth Circuit was wrong when it found the provision unconstitutionally overbroad. Deputy U.S. Solicitor General Eric Feigin will represent the government.

There are certain benefits that require presence in the United States, said Vogel, and trafficking victims, child victims of abuse or neglect and others must apply in this country. "We are very, very concerned that immigration lawyers will not be able ethically to do their jobs if they have look over their shoulders risking criminal prosecution," he said.

Evelyn Sineneng-Smith ran afoul of the criminal prohibition in her immigration consulting business. Her lawyer at the Supreme Court, Mark Fleming, partner at Wilmer Cutler Pickering Hale and Dorr, said the immigration provision is not about smuggling, trafficking, hiding or concealing people. "Those are separate crimes. This is about a very specific subsection of the statute," Fleming said. "It is amazingly overbroad and that's reinforced by the really strong outpouring we've gotten by amici."

Those filing amicus briefs include Erin Busby of the University of Texas School of Law's Supreme Court Clinic (Rutherford Institute, the ACLU and the Service Employees International Union); Arnold & Porter senior associate William Perdue (12 immigration, trafficking and civil rights organizations); Covington & Burling of counsel Elliott Schulder (National Association of Criminal Defense Lawyers); Jenner & Block partner Matthew Hellman (Amnesty International); O'Melveny & Myers partner Anton Metlitsky (21 religious organizations), and Crowell & Moring partner Emily Kuwahara (33 community advocacy and social service organizations).

The friends of the court contend the government's position will chill legitimate advocacy, social services and a broad swath of commercial speech, and could criminalize local government speech welcoming and encouraging immigrants. The provision also has been used by the government to target journalists, lawyers and others for their protected speech, one brief says.

Francisco argues that the statutory terms "encourage" and "induce" have an established meaning in criminal law, and other elements, including intent requirements, "confirm that it is a commonplace criminal law that targets complicity, not an innovatively broad ban on speech."

And the provision's potential application to attorneys is "both quite limited and consistent with the criminal law's potential application to lawyers more generally," he contends.

Fleming said the government is trying to rewrite the statute as an aiding and abetting statute in an effort to narrow it. "Overbroad, viewpoint-discriminatory, and vague, the encouragement provision cannot stand," he writes in his brief. —Marcia Coyle

 

DOJ's Jeffrey Rosen Will Make SCOTUS Debut

 

The U.S. Justice Department's second-in-command, Deputy Attorney General Jeffrey Rosen (above), will don the customary swallow-tail morning coat on Wednesday for his debut argument at the U.S. Supreme Court.

President Donald Trump tapped Rosen, a former Kirkland & Ellis senior partner, to be the department's chief operating officer in February 2019. Rosen will represent the United States as a friend of the court in Lomax v. Ortiz-Marquez, a case in which a Colorado prisoner has asked the justices whether a dismissal without prejudice for failure to state a claim counts as a strike under the Prison Litigation Reform Act.

Rosen will face Goodwin Procter partner Brian Burgess, counsel to Arthur Lomax. The deputy attorney general will share argument time with Colorado Solicitor General Eric Olson, formerly a clerk to the late Justice John Paul Stevens and a partner at Bartlit Beck LLP.

Rosen's high court argument follows a long tradition of attorneys general or their deputies making at least one appearance during their tenures. Rosen's predecessor, Rod Rosenstein, now a King & Spalding partner, went to the lectern for the first time in April 2018 in the case Chavez-Mesa v. United States, a drug sentencing dispute. Rosenstein won a 5-3 ruling for the government.

"I had the benefit of having done a lot of appellate arguments in the Fourth Circuit, particularly as U.S. attorney (for Maryland), and a number en banc," Rosenstein said in an interview. "Obviously you're in a different league in the Supreme Court, but it's the same dynamic." —Marcia Coyle

>> Rosenstein's got more to say about his experience here at the NLJ.

 

Thomas Questions One of His Own Rulings

 

Justice Clarence Thomas on Monday sharply criticized his own majority opinion in a 15-year-old telecommunications case and an underlying decision that says courts must give deference to agencies interpreting their own regulations, urging his colleagues to reconsider both rulings.

Thomas wrote alone in an 11-page dissent that said the Supreme Court should have agreed to review the tax case Baldwin v. United States. The Baldwin petition, arriving from the U.S. Court of Appeals for the Ninth Circuit, had asked the justices outright to overrule Thomas's 2005 decision in National Cable & Telecommunications Assn. v. Brand X Internet Services, a regulatory case that said a federal agency had correctly interpreted the Communications Act of 1934.

Thomas used the Baldwin case to raise and advance his concerns about his prior Brand X decision, and the underlying doctrine called "Chevron deference," a bedrock part of administrative law that says courts generally adopt agencies's views, if reasonable, of their rules. That deference has drawn criticism from conservatives members of the court, but no justice has moved to overturn the 1984 ruling.

"Even if the court is not willing to question Chevron itself, at the very least, we should consider taking a step away from the abyss by revisiting Brand X," Thomas wrote in Monday's dissent. Quoting a statement from the late Justice Robert Jackson in a 1950 ruling, Thomas said: "It is never too late to 'surrende[r] former views to a better considered position."

Thomas regularly writes solo dissents, urging his colleagues to revisit, or even strike down, earlier rulings. But it's rare for any justice to cast doubt on a prior ruling the justice had earlier written.

Appellate veteran Elbert Lin of Hunton Andrews Kurth noted that Thomas's criticism of Chevron on Monday went further than it had before. Thomas had said in the past that there could be "some unique historical justification for deferring to federal agencies." In Monday's statement, Thomas said "it now appears to me that there is no such special justification." —Marcia Coyle

 

Supreme Court Headlines: What We're Reading

 

•   U.S. Supreme Court to Hear Religious Fight Over Same-Sex Foster Care."The U.S. Supreme Court on Monday agreed to hear a major religious rights dispute involving the city of Philadelphia's refusal to place children for foster care with a Catholic agency that bars same-sex couples from serving as foster parents." [Reuters] CNN has more here, The Washington Post here and The New York Times here.

•   At Supreme Court, a Case on Abuse of the No-Fly List. "Next month, the Supreme Court will hear arguments about whether [Muhammad] Tanvir and two other men with similar stories can sue the agents for violating a federal law protecting religious freedom. The Trump administration, which in other settings has taken a broad view of the law, the Religious Freedom Restoration Act of 1993, has urged the court to dismiss the suit, saying it would interfere with 'sensitive matters of national security and law enforcement.'" [NYT]

•   Supreme Court Seems Ready to Back Atlantic Coast Pipeline Permit."A majority of U.S. Supreme Court justices seemed supportive of a crucial permit for Dominion Energy Inc.'s planned $8 billion Atlantic Coast Pipeline, suggesting the Forest Service acted lawfully by clearing the natural-gas line to cross under the Appalachian Trail." [Bloomberg]

•   'Supreme Inequality' Argues That America's Top Court Has Become Right-Wing. "In a new book, lawyer/journalist Adam Cohen makes the case that the Supreme Court has been 'a right-wing court for 50 years,' siding with corporations and the wealthy—and against the poor." [NPR] More hereat the NYT.

•   Justices Won't Take Up Rodney Reed Appeal. "The Supreme Court said Monday it will not take up an appeal from death row inmate Rodney Reed, who is challenging his sentence based in part on the fact that Texas relied on evidence that was later proven to be scientifically invalid." [CNN]