Good morning and welcome to Supreme Court Brief. Today marks the end of the deferred March argument session. Now what about those April arguments? The justices are sure to have some guidance soon for advocates and others on what the court will do. In the meantime, their work continues. The court has called for a response from the U.S. solicitor general in a non-delegation doctrine challenge involving President Trump's border wall. The coronavirus is the backdrop for what may be the next abortion rights case speeding towards the justices. Plus: The solicitor general seeks argument time (if there are arguments) in support of Ford Motor Co. over jurisdiction.

Thanks for reading, and your feedback is welcome and appreciated. Contact us at [email protected] and [email protected] and follow us on Twitter at @MarciaCoyle and @Tonymauro. Stay safe, and be well.

When Delegation Crosses a Constitutional Line

The Trump administration's border wall construction has spurred a number of legal challenges. The justices have asked the U.S. solicitor general to respond to one of those challenges raising two issues—separation of powers and the non-delegation doctrine.

U.S. Solicitor General Noel Francisco had waived the government's right to file a response to the petition in the case Center for Biological Diversity v. Wolf. But clearly a justice—or perhaps justices—were interested in what the government will say. Francisco must respond by April 16.

The petition, brought by lawyers with the Center, Defenders of Wildlife and the Animal Legal Defense Fund, is a constitutional challenge to waivers in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. The law gives the secretary of Homeland Security the authority to "waive all legal requirements"—including all federal, state, local, and tribal laws, regulations, and legal requirements—that, in the secretary's "sole discretion, determines necessary to ensure expeditious construction of barriers and roads" in the vicinity of the U.S. borders.

The law limits legal challenges to violations of the Constitution, and permits appellate review of district court decisions only through a petition for a writ of certiorari to the Supreme Court.

The challengers focus on six waiver decisions made in 2018 and 2019, waiving more than 40 federal laws and all state, local and tribal related regulations, affecting construction of 145-miles of steel-bollard walls along the U.S.-Mexico border in Arizona, California, New Mexico and Texas, according to the petition.

"At stake is the fraught accumulation of legislative powers in the unitary executive official, who has discretionarily swept aside a vast breadth of public and private liberties protected by federal, state, local, and tribal statutes in the name of border wall construction—all without an iota of congressional guidance," A. Jean Su of the Center for Biological Diversity wrote.

Amicus briefs supporting the petition have been filed by Deborah Sivas of Stanford Law School's environmental law clinic (three local governments near the border); Efren Olivares of the Texas Civil Rights Project (La Union Del Pueblo Entero); William Eubanks II, partner in Eubanks & Associates, Fort Collins,Colo. (coalition of archaeologists), and Katherine Meyer, Harvard Animal Law and Policy Clinic (North American Butterfly Association).

The justices wrestled with the non-delegation doctrine most recently last term in Gundy v. United States. In a 5-3 opinion by Justice Elena Kagan, the plurality ruled that a provision in the Sex Offender Registration and Notification Act delegating authority to the U.S. attorney general to apply the act to pre-act offenders did not violate the Constitution. —Marcia Coyle

Will Abortion Rights Become the Justices' First Coronavirus Case?

The abortion issue is never far from the Supreme Court's docket. The justices have pending decision a case from Louisiana involving a challenge to that state's requirement that abortion physicians have hospital admitting privileges within 30 miles of the abortion facility. Now it seems likely that the justices will face another abortion challenge sooner rather than later in the unusual context of the coronavirus epidemic.

The U.S. Court of Appeals for the Fifth Circuit could be the springboard for an emergency appeal to the justices by either Texas Republican Attorney General Ken Paxton or Texas abortion providers, who are represented in their lawsuit by the Center for Reproductive Rights (also counsel to Louisiana abortion clinics) and Planned Parenthood.

"Abortion providers who refuse to follow state law are demonstrating a clear disregard for Texans suffering from this medical crisis," Paxton said Tuesday. "For years, abortion has been touted as a 'choice' by the same groups now attempting to claim it is an essential procedure."

The Fifth Circuit on Tuesday granted a temporary administrative stay of an order issued by U.S. District Judge Lee Yeakel in the Western District of Texas. Yeakel blocked an executive order from including abortion among nonessential surgical procedures to be deferred or canceled during the public health crisis.

The George W. Bush-appointed judge indicated the case may go to the Supreme Court.

"Regarding a woman's right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly," Yeakel wrote. "There can be no outright ban on such a procedure. This court will not speculate on whether the Supreme Court included a silent 'except-in-a-national-emergency clause' in its previous writings on the issue."

The Fifth Circuit panel directed the plaintiffs to respond to Texas's emergency motion by 8 a.m. Wednesday, and Texas to reply no later than 8 p.m. the same day.

The Center for Reproductive Rights also has filed a COVID-19 related lawsuit challenging Oklahoma Gov. J. Kevin Stitt's executive order as applied to abortion.

In addition to Texas, federal judges in Ohio and Alabama on Monday ruled against state efforts to curtail reproductive rights services in those states amid the virus pandemic. Still to come may be appeals from district court orders in those states, and others that moved ahead to pause access to abortions. —Marcia Coyle

DOJ Seeks Argument Time in Ford Case

"Specific personal jurisdiction" might not resonate with the public in the same way that abortion rights, immigration or even President Donald Trump's tax returns do. But big business knows the exercise of that jurisdiction by a state court can mean untold liability in product defect and other cases. The U.S. Chamber of Commerce, pharmaceutical companies, auto manufacturers and others are watching closely the consolidated cases Ford Motor Co. v. Montana Eighth Judicial District Court and Ford Motor Co. v. Bandemer for the test of where corporate defendants can be sued.

U.S. Solicitor General Noel Francisco has asked the justices for argument time in support of Ford, but not Ford's entire argument. The argument date is April 27.

"The United States often brings claims in federal court to enforce federal statutes, and it also has an interest in ensuring that private plaintiffs have access to efficient forums in which to sue foreign and domestic companies," Francisco wrote. "At the same time, the United States often defends federal officials against claims in federal court, and it also has an interest in preventing risks to interstate and foreign commerce posed by state courts' unduly expansive assertions of jurisdiction."

Francisco argues in an amicus brief that a state court may exercise specific jurisdiction over a defendant "who makes purposeful contacts with the State by acting in the State or by directing its conduct toward the state." Ford, however, Francisco wrote, "asks the court to go further and to adopt a 'proximate-cause requirement.' That theory is unsound."

Ford is represented by Sean Marotta, partner in Hogan Lovells. Deepak Gupta, a name partner at Washington's Gupta Wessler, is counsel to Charles Lucero and Adam Bandemer. —Marcia Coyle

Supreme Court Headlines: What We're Reading

'Sanctuary' Laws Latest Immigration Battle to Draw Supreme Court's Attention. "Since his retirement from the Supreme Court in 2009, [David] Souter, 80, regularly has been designated to hear cases on the New England-centered appeals court. He and two other judges turned aside 'the DOJ's kitchen-sink-full of clever legal arguments' that the judges said obscured a bottom-line lack of power." [The Washington Post] Slate has more here. Read the First Circuit's ruling.

Spring Cases in Limbo Without Supreme Court Guidance on Arguments During Pandemic. "The justices issued an order on Monday in an April case, as if the month's schedule had not changed amid the death and turmoil of Covid-19. The Court allocated the argument time among various parties in a still-slated April 21 dispute from Oklahoma That ambiguous order and lack of public notice about how the nine justices may modify their practices for spring cases has only added to the swirl of uncertainty in difficult times. The reluctance to offer alternatives—or provide clarity about possible postponements—reinforces the secrecy around what is already one of the most insular and mysterious institutions of government. [CNN]

The Supreme Court Can't Let the Coronavirus Get in the Way of Deciding Major Cases. "These cases must be decided quickly to ensure that Trump is not able to run out the clock and that Congress and the grand jury receive the documents they need to conduct time-sensitive investigations. Supreme Court precedent is against Trump in both cases, yet if the court fails to resolve these cases in a timely manner, that would, as a practical matter, amount to a victory for the president. So what is the court to do? Fortunately, it has options." [The Washington Post]

A Supreme Court Justice Visits: A Look Behind The Scenes. "A recently compiled report shows that Supreme Court justices get neither big bucks nor valuable gifts when they speak at public universities. But public and press access granted by the justices is idiosyncratic. Two justices—Neil Gorsuch and Samuel Alito—have limited access to their appearances, even on occasion forbidding recording of their speeches for archival purposes." [NPR]

Courts and cases

Prior Salary Can Justify Gender Pay Differences, US Supreme Court Is Told. Employers can lawfully use prior salary considerations to defend paying male and female workers differently for the same work, lawyers from Jones Day, including Shay Dvoretzky (at left) asserted in a new petition at the U.S. Supreme Court testing the scope of the federal Equal Pay Act. The petition, docketed Friday in the case Fresno County Superintendent of Schools v. Rizo, challenges a ruling by the en banc U.S. Court of Appeals for the Ninth Circuit. The divided appeals court in February said employers cannot rely on prior salary to justify gender disparities for employees performing the same work. [NLJ]

Sotomayor, Bowing to Futility: 'I Will Cease Noting My Dissent' in Sentencing Dispute. Sometimes even a U.S. Supreme Court justice must acknowledge the impossible. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, reached that point Monday on an issue involving the potential liberty of more than 1,000 prisoners. [NLJ]

Justices Urged to Consider Role of 'Dreamers' in Fighting Pandemic. The coronavirus pandemic has become part of one of the U.S. Supreme Court's most important cases this term, potentially complicating its outcome. Whether and how the justices will be influenced by the crisis in their final deliberations is hard to gauge. [NLJ]

Delaware's Weird—and Constitutionally Suspect—Approach to Judicial Independence. "Corporate lawyers are quite frank that the management-friendly law of the state is a big draw, but so too is the reputation of the state's courts for fairness, honesty, and efficiency. Not everyone in Delaware, of course, is enamored of the system. Carney flows out of the efforts of two local lawyers who have devoted considerable time to changing it." [The Atlantic]

Supreme Court to Hear Case of Michigan Man Beaten by Plainclothes Police. "The mistaken seizure of King along a street in Grand Rapids, Mich., in the summer of 2014 led to a severe beating, a lawsuit and, as of Monday, a Supreme Court case. The justices will consider next term the complicated legal rules that come into play when someone seeks compensation for alleged unconstitutional behavior by law enforcement." [The Washington Post]

Thanks for reading Supreme Court Brief. Your feedback is welcome and appreciated. Contact us at [email protected] and [email protected] and follow us on Twitter at @MarciaCoyle and @Tonymauro. Stay safe, and be well.