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PIZZA.BAT posted:So how can you not read that outcome as, 'violate away to your hearts content, stymie any investigations by claiming executive privilege, and then get off scot-free once your term has ended'? You have an imperial presidency. Its not illegal when the president does it. This is US civics 101 And nobody gives nor should give a single solitary gently caress about the founding fathers.
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Jan 25, 2021 19:43
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Platystemon posted:Has there never been a lesser official who lost their office while litigation continued? The supreme court doesn't want to really rule on it, because congress stupidly never passed any law spelling out what the penalty would be. A decision of "yeah this probably isn't legal, but there's gently caress-all anyone can do if you decide to ignore it" would not be pleasant for them to write.
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Jan 25, 2021 19:47
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Hieronymous Alloy posted:Apparently "moot" means "it's easier to pretend this is all over than to deal with something that might be embarrassing or difficult." Look if we let this proceed there's a risk that we might have to hold someone accountable when they're in a position of power and that's just not how America works.
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Jan 25, 2021 19:50
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Rigel posted:The supreme court doesn't want to really rule on it, because congress stupidly never passed any law spelling out what the penalty would be.
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Jan 26, 2021 07:34
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If the only remedy sought was to force Trump to stop violating the Emoluments Clause, well, he has, I guess. The Court cannot now grant the relief sought, which does render the case moot, doesn't it? I will try and find the decision later.
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Jan 26, 2021 08:22
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Can congress pass a law spelling out a specific penalty for violating the emoluments clause, or would that be considered overstepping their powers?
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Jan 26, 2021 08:24
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Mr. Nice! posted:I think it's because the relief sought in the underlying litigation was to force the president to divest and cease violating the clause. Since he's not in office anymore, that relief is moot. Honestly from a court perspective I'd guess this is unanimous as much as the take away is definitely break the law because it's very unlikely the courts will want to get involved. I don't know if Barret Tillman could have tried for returning some of the money, in which case there would still be a justification to hear it. Definitely sucks in terms of lessons to learn though.
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Jan 26, 2021 09:00
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Rust Martialis posted:If the only remedy sought was to force Trump to stop violating the Emoluments Clause, well, he has, I guess. The Court cannot now grant the relief sought, which does render the case moot, doesn't it? There literally is no decision. I quoted everything that was in the Court’s order above. quote:20-330 TRUMP, PRESIDENT OF U.S. V. CREW, ET AL.
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Jan 26, 2021 13:55
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ulmont posted:There literally is no decision. I quoted everything that was in the Court’s order above. If you look at the petition for cert, the question presented was: "Whether plaintiffs who claim to compete with businesses in which the President of the United States has a financial interest can seek redress in an Article III court to enforce the Foreign and Domestic Emoluments Clauses of the U.S. Constitution against the President. " They were suing to get him to stop violating the constitution, which he cannot violate any longer. Dismissing this as moot is correct because there is no live controversy based upon that action. While I agree an advisory opinion would be great, our SCOTUS doesn't do that.
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Jan 26, 2021 14:17
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Mr. Nice! posted:Dismissing this as moot is correct because there is no live controversy based upon that action. While I agree an advisory opinion would be great, our SCOTUS doesn't do that. “Capable of repetition, yet evading review...” ...it’s no more moot than Roe v. Wade was.
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Jan 26, 2021 14:38
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ulmont posted:“Capable of repetition, yet evading review...” The current law in the second circuit is the president can be sued for violating the emoluments clause. I don’t see how that’s a negative outcome. If there were damages sought, that would be a different story. I think that is a lawsuit that should be filed now.
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Jan 26, 2021 14:56
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Seems kind of repetitive to render a judgement with the impeachment going on, which could render the case moot.
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Jan 26, 2021 21:03
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ShadowHawk posted:Is this something on "the Democratic agenda" these days? There's been talk about putting bounds on the pardon power, for instance, but that's happened many times before and there's still no relevant law We can't put bounds on the pardon power with mere legislation. The constitution pretty much states that it is unlimited for Federal crimes (aside from not being able to use it to avoid impeachment). Our belief that the president cant self-pardon is mostly based on the "oh come on! He CAN'T be allowed to do that!!!" legal doctrine.
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Jan 26, 2021 21:57
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Legal Eagle has posted a video pointing our the pardons to Bannon and others of recent vintage are rather narrow in scope, and leaves the possibility of charging them with other offenses, as the pardons were apparently only covering the specific charges filed?
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Jan 26, 2021 22:18
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Rigel posted:We can't put bounds on the pardon power with mere legislation. The constitution pretty much states that it is unlimited for Federal crimes (aside from not being able to use it to avoid impeachment). Our belief that the president cant self-pardon is mostly based on the "oh come on! He CAN'T be allowed to do that!!!" legal doctrine. Can't we? All sorts of broad federal and executive powers are given scope and definition by Congress and enabling legislation. I don't see any reason why Congress couldn't pass reasonably framed regulations on the pardon power, including "csnt pardon yourself" and "corrupt or self dealing pardons are invalid."
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Jan 26, 2021 22:49
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Rust Martialis posted:Legal Eagle has posted a video pointing our the pardons to Bannon and others of recent vintage are rather narrow in scope, and leaves the possibility of charging them with other offenses, as the pardons were apparently only covering the specific charges filed? that's what it looks like manafort's, for example: https://www.justice.gov/file/1349071/download can't find a proper gov copy of the bannon pardon itself (as opposed to "i direct clemency for all these dudes) and don't know if justsecurity is a reliable source but whatever here's their link, https://www.justsecurity.org/wp-content/uploads/2021/01/department-of-justice-pardon-for-stephen-bannon-by-president-donald-j-trump.pdf the justsecurity article author was one of mueller's dudes so i assume he's not a total crank, and it appears that he's right about the pardon not covering all bannon's underlying conduct
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Jan 26, 2021 22:58
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I guess the real legal chaos was the trump we made along the way.
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Jan 26, 2021 23:01
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 Opinions! Only the last 3 came out today, but the first 2 (from before) were boring as hell. In fact, 2 of today’s 3 are also boring.CITY OF CHICAGO, ILLINOIS v. FULTON ET AL TLDR: When you file bankruptcy, that automatically, with a few exceptions, stays the collection of all pre-bankruptcy filing debts. It turns out the city of Chicago can still keep your car if it’s been impounded for failure to pay parking tickets even if you file bankruptcy after they impound it. Majority Opinion (Alito): When a debtor files a petition for bankruptcy, the Bankruptcy Code protects the debtor’s interests by imposing an automatic stay on efforts to collect prepetition debts outside the bankruptcy forum. Those prohibited efforts include “any act . . . to exercise control over property” of the bankruptcy estate. The question in this case is whether an entity violates that prohibition by retaining possession of a debtor’s property after a bankruptcy petition is filed. We hold that mere retention of property does not violate §362(a)(3). … In the case before us, the city of Chicago (City) impounded each respondent’s vehicle for failure to pay fines for motor vehicle infractions. Each respondent filed a Chapter 13 bankruptcy petition and requested that the City return his or her vehicle. The City refused, and in each case a bankruptcy court held that the City’s refusal violated the automatic stay. The Court of Appeals affirmed all of the judgments in a consolidated opinion. … The language used in §362(a)(3) suggests that merely retaining possession of estate property does not violate the automatic stay. Under that provision, the filing of a bankruptcy petition operates as a “stay” of “any act” to “exercise control” over the property of the estate. Taken together, the most natural reading of these terms—“stay,” “act,” and “exercise control”—is that §362(a)(3) prohibits affirmative acts that would disturb the status quo of estate property as of the time when the bankruptcy petition was filed. Taking the provision’s operative words in turn, the term “stay” is commonly used to describe an order that “suspend[s] judicial alteration of the status quo.” An “act” is “[s]omething done or performed . . . ; a deed.” To “exercise” in the sense relevant here means “to bring into play” or “make effective in action.” And to “exercise” something like control is “to put in practice or carry out in action.” The suggestion conveyed by the combination of these terms is that §362(a)(3) halts any affirmative act that would alter the status quo as of the time of the filing of a bankruptcy petition. Any ambiguity in the text of §362(a)(3) is resolved decidedly in the City’s favor by the existence of a separate provision, §542, that expressly governs the turnover of estate property. … Reading §362(a)(3) to cover mere retention of property, as respondents advocate, would create at least two serious problems. First, it would render the central command of §542 largely superfluous. Second, respondents’ reading would render the commands of §362(a)(3) and §542 contradictory. Section 542 carves out exceptions to the turnover command, and §542(a) by its terms does not mandate turnover of property that is “of inconsequential value or benefit to the estate.” Under respondents’ reading, in cases where those exceptions to turnover under §542 would apply, §362(a)(3) would command turnover all the same. But it would be “an odd construction” of §362(a)(3) to require a creditor to do immediately what §542 specifically excuses. Respondents would have us resolve the conflicting commands by engrafting §542’s exceptions onto §362(a)(3), but there is no textual basis for doing so. Though the parties debate the issue at some length, we need not decide how the turnover obligation in §542 operates. Nor do we settle the meaning of other subsections of §362(a).2 We hold only that mere retention of estate property after the filing of a bankruptcy petition does not violate §362(a)(3) of the Bankruptcy Code. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Alito, Unanimous (Barrett not participating). Concurrence by Sotomayor. Concurrence (Sotomayor): Section 362(a)(3) of the Bankruptcy Code provides that the filing of a bankruptcy petition “operates as a stay” of “any act . . . to exercise control over property of the [bankruptcy] estate.” I join the Court’s opinion because I agree that, as used in §362(a)(3), the phrase “exercise control over” does not cover a creditor’s passive retention of property lawfully seized pre-bankruptcy. Hence, when a creditor has taken possession of a debtor’s property, §362(a)(3) does not require the creditor to return the property upon the filing of a bankruptcy petition. I write separately to emphasize that the Court has not decided whether and when §362(a)’s other provisions may require a creditor to return a debtor’s property. Those provisions stay, among other things, “any act to create, perfect, or enforce any lien against property of the estate” and “any act to collect, assess, or recover a claim against [a] debtor” that arose prior to bankruptcy proceedings. Nor has the Court addressed how bankruptcy courts should go about enforcing creditors’ separate obligation to “deliver” estate property to the trustee or debtor under §542(a). The City’s conduct may very well violate one or both of these other provisions. The Court does not decide one way or the other. Regardless of whether the City’s policy of refusing to return impounded vehicles satisfies the letter of the Code, it hardly comports with its spirit. “The principal purpose of the Bankruptcy Code is to grant a ‘“fresh start” ’” to debtors. When a debtor files for Chapter 13 bankruptcy, as respondents did here, “the debtor retains possession of his property” and works toward completing a court-approved repayment plan. 549 U. S., at 367. For a Chapter 13 bankruptcy to succeed, therefore, the debtor must continue earning an income so he can pay his creditors. Indeed, Chapter 13 bankruptcy is available only to “individual[s] with regular income.” For many, having a car is essential to maintaining employment. … Ultimately, however, any gap left by the Court’s ruling today is best addressed by rule drafters and policymakers, not bankruptcy judges. It is up to the Advisory Committee on Rules of Bankruptcy Procedure to consider amendments to the Rules that ensure prompt resolution of debtors’ requests for turnover under §542(a), especially where debtors’ vehicles are concerned. Congress, too, could offer a statutory fix, either by ensuring that expedited review is available for §542(a) proceedings seeking turnover of a vehicle or by enacting entirely new statutory mechanisms that require creditors to return cars to debtors in a timely manner. Nothing in today’s opinion forecloses these alternative solutions. With that understanding, I concur. https://www.supremecourt.gov/opinions/20pdf/19-357_6k47.pdf HENRY SCHEIN, INC., PETITIONER v. ARCHER AND WHITE SALES, INC. TLDR: Whoops, our bad. Holding / Majority Opinion (Per Curiam) The writ of certiorari is dismissed as improvidently granted. It is so ordered. Lineup: Unknown. https://www.supremecourt.gov/opinions/20pdf/19-963_2c8f.pdf FEDERAL REPUBLIC OF GERMANY ET AL. v. PHILIPP ET AL. TLDR: It’s not an international human rights violation for a nation to take property from its own nationals, and so you can’t sue a nation that does that in US courts. No, not even if you’re suing to recover art the Nazis essentially stole from Jewish art dealers in Germany. Majority Opinion (Roberts): The Foreign Sovereign Immunities Act provides that foreign nations are presumptively immune from the jurisdiction of United States courts. The statute, however, sets forth several specific exceptions. One such exception provides that a sovereign does not enjoy immunity in any case “in which rights in property taken in violation of international law are in issue.” The question presented is whether a country’s alleged taking of property from its own nationals falls within this exception. This case concerns several dozen medieval relics and devotional objects known as the Welfenschatz. The treasure (“schatz”) of the German Welf dynasty, the pieces date back to the early days of the Holy Roman Empire and occupy a unique position in German history and culture….During the waning years of the Weimar Republic, a consortium of three art firms owned by Jewish residents of Frankfurt purchased the Welfenschatz from the Duke of Brunswick….Conditions facing the consortium changed dramatically after the collapse of the German economy and the rise of the Nazi government. After ascending to power, Hermann Goering—Adolf Hitler’s deputy and the Prime Minister of Prussia—became interested in the remainder of the Welfenschatz. The complaint alleges that he employed a combination of political persecution and physical threats to coerce the consortium into selling the remaining pieces to Prussia in 1935 for approximately one-third of their value. … For nearly 60 years, the treasure has been maintained by Stiftung Preussischer Kulturbesitz (SPK)—the Prussian Cultural Heritage Foundation—and it is now displayed at a museum in Berlin. SPK is an instrumentality of the Federal Republic. Respondents are two United States citizens and a citizen of the United Kingdom who trace their lineages back to the three members of the consortium. The heirs first approached SPK claiming that the sale of the Welfenschatz to the Prussian Government was unlawful. SPK conducted its own investigation of the sale and determined that the transaction occurred at a fair market price without coercion. [Respondents tried to get it back from Germany in Germany and failed, then sued in the US.] … Enacted in 1976, the Foreign Sovereign Immunities Act supplies the ground rules for “obtaining jurisdiction over a foreign state in the courts of this country.” The Act creates a baseline presumption of immunity from suit. “[U]nless a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state.” The heirs contend that their claims fall within the exception for “property taken in violation of international law,” §1605(a)(3), because the coerced sale of the Welfenschatz, their property, constituted an act of genocide, and genocide is a violation of international human rights law. Germany argues that the exception is inapplicable because the relevant international law is the international law of property—not the law of genocide—and under the international law of property a foreign sovereign’s taking of its own nationals’ property remains a domestic affair. This “domestic takings rule” assumes that what a country does to property belonging to its own citizens within its own borders is not the subject of international law. Known at the founding as the “law of nations,” what we now refer to as international law customarily concerns relations among sovereign states, not relations between states and individuals. The domestic takings rule invoked by Germany derives from this premise. Historically, a sovereign’s taking of a foreigner’s property, like any injury of a foreign national, implicated the international legal system because it “constituted an injury to the state of the alien’s nationality.” Such mistreatment was an affront to the sovereign, and “therefore the alien’s state alone, and not the individual, could invoke the remedies of international law.” A domestic taking by contrast did not interfere with relations among states. … The domestic takings rule has deep roots not only in international law but also in United States foreign policy. Secretary of State Cordell Hull most famously expressed the principle in a 1938 letter to the Mexican Ambassador following that country’s nationalization of American oil fields. The Secretary conceded “the right of a foreign government to treat its own nationals in this fashion if it so desires. This is a matter of domestic concern.” The United States, however, could not “accept the idea” that “these plans can be carried forward at the expense of our citizens.” The domestic takings rule endured even as international law increasingly came to be seen as constraining how states interacted not just with other states but also with individuals, including their own citizens. ... As noted, [the FISA’s expropriation exception] provides that United States courts may exercise jurisdiction over a foreign sovereign in any case “in which rights in property taken in violation of international law are in issue.” Based on this historical and legal background, courts arrived at a “consensus” that the expropriation exception’s “reference to ‘violation of international law’ does not cover expropriations of property belonging to a country’s own nationals.” … We need not decide whether the sale of the consortium’s property was an act of genocide, because the expropriation exception is best read as referencing the international law of expropriation rather than of human rights. We do not look to the law of genocide to determine if we have jurisdiction over the heirs’ common law property claims. We look to the law of property. And in 1976, the state of that body of law was clear: A “taking of property” could be “wrongful under international law” only where a state deprived “an alien” of property. … The heirs concede that at the time of the FSIA’s enactment the international law of expropriation retained the domestic takings rule. But they argue that Congress captured all of international law in the exception—not just the international law of expropriation—and that other areas of international law do not shield a sovereign’s actions against its own nationals. In support of that assertion, they note that the exception concerns “property taken in violation of international law”— not “property takings in violation of international law.” This distinction between “takings” and “taken,” they say, is the difference between incorporating the specific international law governing takings of property and incorporating international law writ large. We would not place so much weight on a gerund. The exception places repeated emphasis on property and property-related rights, while injuries and acts we might associate with genocide are notably lacking. That would be remarkable if the provision were intended to provide relief for atrocities such as the Holocaust. A statutory phrase concerning property rights most sensibly references the international law governing property rights, rather than the law of genocide. What is more, the heirs’ interpretation of the phrase “taken in violation of international law” is not limited to violations of the law of genocide but extends to any human rights abuse. … The heirs’ approach, for example, would circumvent the reticulated boundaries Congress placed in the FSIA with regard to human rights violations. Where Congress did target injuries associated with such acts, including torture or death, it did so explicitly and with precision. The noncommercial tort exception provides jurisdiction over claims “in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property,” but only where the relevant conduct “occurr[ed] in the United States.” Similarly, the terrorism exception eliminates sovereign immunity for state sponsors of terrorism but only for certain human rights claims, brought by certain victims, against certain defendants. These restrictions would be of little consequence if human rights abuses could be packaged as violations of property rights and thereby brought within the expropriation exception to sovereign immunity. … The heirs offer several counterarguments, but none can overcome the text, context, and history of the expropriation exception. First, the heirs rely on the 2016 Foreign Cultural Exchange Jurisdictional Immunity Clarification Act. The Act amends the FSIA to explain that participation in specified “art exhibition activities” does not qualify as “commercial activity” within the meaning of the expropriation exception....According to the heirs, this clarification of the expropriation exception shows that Congress anticipated Nazi-era claims could be adjudicated by way of that exception. We agree with the heirs, but only to a limited extent. Claims concerning Nazi-era art takings could be brought under the expropriation exception where the claims involve the taking of a foreign national’s property. … The heirs also rely on other statutes aimed at promoting restitution to the victims of the Holocaust. These laws, the heirs suggest, demonstrate Congress’s desire for American courts to hear disputes about Holocaust-era property claims. The statutes do promote restitution for the victims of the Holocaust, but they generally encourage redressing those injuries outside of public court systems. These laws do not speak to sovereign immunity. We hold that the phrase “rights in property taken in violation of international law,” as used in the FSIA’s expropriation exception, refers to violations of the international law of expropriation and thereby incorporates the domestic takings rule. We do not address Germany’s argument that the District Court was obligated to abstain from deciding the case on international comity grounds. Nor do we consider an alternative argument noted by the heirs: that the sale of the Welfenschatz is not subject to the domestic takings rule because the consortium members were not German nationals at the time of the transaction. The Court of Appeals should direct the District Court to consider this argument, including whether it was adequately preserved below. The judgment of the Court of Appeals for the D. C. Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Unanimous. https://www.supremecourt.gov/opinions/20pdf/19-351_o7jp.pdf REPUBLIC OF HUNGARY, ET AL., PETITIONERS v. ROSALIE SIMON, ET AL. TLDR: What we just said about Germany also applies to Hungary. Holding / Majority Opinion (Per Curiam) The judgment of the United States Court of Appeals for the D. C. Circuit is vacated, and the case is remanded for further proceedings consistent with the decision in Federal Republic of Germany v. Philipp, ante, p. ___. It is so ordered. Lineup: Unknown but presumably unanimous based on the Germany case. https://www.supremecourt.gov/opinions/20pdf/18-1447_igkn.pdf SALINAS v. UNITED STATES RAILROAD RETIREMENT BOARD TLDR: If the U.S. Railroad Retirement Board refuses to hear a request to reopen a benefits determination, you can sue to get a court to look at it. Holding / Majority Opinion (Sotomayor): The Railroad Retirement Act of 1974 (RRA) establishes a system of disability, retirement, and survivor benefits for railroad employees [parallel Social Security, basically.]. That system is administered by the U. S. Railroad Retirement Board (Board). The Board denied benefits to petitioner Manfredo M. Salinas, a former railroad employee, when he applied in 2006, but it later granted him benefits when he reapplied in 2013. Salinas then requested that the Board reopen its decision to deny his 2006 application, but the Board declined. This case asks whether the Board’s refusal to reopen the prior denial of benefits is subject to judicial review. The Court holds that it is. The RRA provides long-term benefits to railroad employees who have accrued enough years of service and who have either reached a certain age or become disabled. It also provides benefits for eligible employees’ spouses and survivors under certain conditions. These benefits complement those provided by another statute, the Railroad Unemployment Insurance Act (RUIA), which covers short-term periods of unemployment and sickness. … To administer benefits under the RRA, the Board has implemented a multistep system of administrative review. First, an individual applies for benefits and receives an initial decision from the appropriate division of the Board, such as the Disability Benefits Division. If the individual is dissatisfied, she may seek reconsideration from the Board’s Reconsideration Section. If denied again, she may appeal to the Board’s Bureau of Hearings and Appeals (Bureau). Lastly, the applicant may take a final appeal to the Board itself. This four-step sequence is the primary form of administrative review for benefits determinations. Applicants have a right to seek each of the above levels of review within 60 days. Once an applicant completes the review process, or the deadline for seeking further review passes, the benefits determination becomes “final” under the Board’s regulations. After a determination becomes final, an applicant can request that the Board reopen it. Whether to grant reopening is ultimately discretionary. The Board, however, has established substantive criteria to guide its discretion. For example, as relevant here, a decision may be reopened “[w]ithin four years of the date of the notice of such decision, if there is new and material evidence.” … Salinas is a former carpenter and assistant foreman for the Union Pacific Railroad. During his 15-year railroad career, he suffered two serious injuries on the job...After receiving treatment, Salinas continued to experience pain, anxiety, and depression. He began seeking RRA disability benefits in 1992. His first two applications were denied, and he did not seek reconsideration of either. On February 28, 2006, Salinas filed his third application for RRA benefits. The Board denied Salinas’ application on August 28, 2006, concluding that his impairments were not severe enough to qualify for relief. After missing the deadline for seeking reconsideration, Salinas sent a letter to the Board requesting that it reconsider its decision “even though the 60 days had passed.” Salinas noted, among other things, that he had “more medical records to provide.” The Reconsideration Section denied Salinas’ request, finding that he had failed to demonstrate good cause for his late filing. Salinas did not appeal. Seven years later, on December 26, 2013, Salinas filed his fourth application for RRA benefits. This time, his application was granted. Although Salinas was deemed disabled as of October 9, 2010, his benefits began on December 1, 2012, 12 months prior to the date on which he filed his successful application. Salinas timely sought reconsideration of the amount and start date of his benefits. The Reconsideration Section denied relief, and Salinas appealed to the Bureau. On appeal, Salinas argued that his 2006 application should be reopened because the Board had not considered certain medical records in existence at the time when it denied him benefits. Salinas submitted the records as part of his appeal. On August 26, 2016, the Bureau denied Salinas’ request to reopen the 2006 decision. The Bureau concluded that Salinas had failed to seek reopening based on “new and material evidence” within four years of the decision at issue, as required by regulation. Salinas appealed to the Board, which affirmed the Bureau’s decision on the ground that Salinas had not met the criteria for reopening under §261.2. The Board notified Salinas that he could seek judicial review of the Board’s decision within one year. Salinas filed a timely pro se petition for review with the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit dismissed the petition for lack of jurisdiction. In a previous decision, the Fifth Circuit had joined the majority of Circuits in holding that federal courts cannot review the Board’s refusal to reopen a prior benefits determination. ... Section 231g of the RRA provides that, except for the deadline for seeking review, “[d]ecisions of the Board determining the rights or liabilities of any person” under the RRA “shall be subject to judicial review in the same manner, subject to the same limitations, and all provisions of law shall apply in the same manner as though the decision were a determination of corresponding rights or liabilities under the Railroad Unemployment Insurance Act.” … Section 355(f) [of the RUIA] provides: “Any claimant, or any railway labor organization organized in accordance with the provisions of the Railway Labor Act . . . , of which claimant is a member, or any base-year employer of the claimant, or any other party aggrieved by a final decision under subsection (c) of this section, may . . . obtain a review of any final decision of the Board.” To qualify for judicial review under this provision, the Board’s refusal to reopen its denial of Salinas’ 2006 application must constitute “any final decision of the Board.” It does. … The text of §355(f) starts our analysis. The phrase “any final decision” is broad, and it reflects Congress’ intent to define the scope of review “expansively.” The phrase “denotes some kind of terminal event,” such as the “final stage of review.” Similar language in the Administrative Procedure Act has been interpreted to refer to an agency action that “both (1) mark[s] the consummation of the agency’s decisionmaking process and (2) is one by which rights or obligations have been determined, or from which legal consequences will flow.” The Board’s refusal to reopen the prior denial of benefits satisfies these criteria. First, the decision was the “terminal event” in the Board’s administrative review process….Second, the Board’s decision was one “‘by which rights or obligations have been determined, or from which legal consequences will flow.’ … The Board disagrees because it interprets the phrase “any final decision” to mean “any final decision under §355(c).” The Board’s argument goes like this: Section 355(f) authorizes four parties to seek judicial review: (1) a claimant for benefits, (2) a claimant’s railway labor organization, (3) a claimant’s base-year employer, and (4) “any other party aggrieved by a final decision under subsection (c) of this section.” The phrase “any other” means that, in order to obtain judicial review, each of the enumerated parties must be “aggrieved by a final decision under subsection (c).” This implies, in turn, that each party may seek judicial review of only the decision “under subsection (c)” by which it was aggrieved. A denial of reopening is not a decision “under subsection (c)” because it is not a determination granting or denying benefits. Thus, the Board argues, reopening decisions are not subject to judicial review. The Board’s interpretation is inconsistent with the text of §355(f). Congress conspicuously chose the broad language “any final decision,” without tying that phrase to the earlier reference to “a final decision under subsection (c).” This omission is especially notable because Congress used such limiting references elsewhere in §355. … To the extent there is ambiguity in the meaning of “any final decision,” it must be resolved in Salinas’ favor under the “strong presumption favoring judicial review of administrative action.” The Board’s remaining arguments also fall short. We hold that the Board’s refusal to reopen a prior benefits determination is a “final decision” within the meaning of §355(f ), and therefore subject to judicial review. The judgment of the United States Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Sotomayor, joined by Roberts, Breyer, Kagan and Kavanaugh [the new “liberal” lineup, although Gorsuch may swap for one of the other two periodically]. Dissent by Thomas, joined by Alito, Gorsuch and Barrett. Dissent (Thomas): The Court may well correctly interpret the judicial review provision located in the Railroad Unemployment Insurance Act (RUIA). But this case concerns the judicial review provision located in the Railroad Retirement Act (RRA). And though the RRA references the RUIA to explain how to obtain judicial review, it defines separately what may be reviewed—the key issue here. The RRA provides that “[d]ecisions of the Board determining the rights or liabilities of any person under this subchapter shall be subject to judicial review in the same manner, subject to the same limitations, and all provisions of law shall apply in the same manner as though the decision were a determination of corresponding rights or liabilities under the [RUIA].” Ibid. This language directs courts to assess questions about reviewability in three steps. First, resolve whether the Board’s decision determined rights or liabilities. Second, locate the rights or liabilities under the RUIA, if any, that correspond to the ones determined by the Board. And third, decide whether and how a determination of those parallel rights or liabilities would be reviewed under the RUIA. The majority bypasses this structure entirely by overlooking the question whether the Board’s decision here determined any right or liability at all. It did not. A “right” is “[a] power, privilege, or immunity guaranteed under a constitution, statutes or decisional laws, or claimed as a result of long usage.” Similarly, a “liability” is “an obligation one is bound in law or justice to perform.”The Board here did not assess a legal obligation or claim. As the majority points out, the Board decided only the “ultimately discretionary” matter of whether to reopen the 2006 decision. Neither the RRA nor the RUIA provides any statutory right to reopen a proceeding. And the regulations that create reopening procedures make clear that no one has a right to that proceeding; the Board has plenary authority to “direct that any decision, which is otherwise subject to reopening under this part, shall not be reopened.” “the majority interprets §231g to say nothing more than that the RUIA’s judicial review provision applies. But that interpretive gloss ignores the words Congress chose. Only Board decisions “determining the rights or liabilities of any person” under the RRA are subject to judicial review. Because the Board’s decision below did not determine any right or liability, the RRA does not provide for judicial review. I respectfully dissent. https://www.supremecourt.gov/opinions/20pdf/19-199_o7jq.pdf
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Feb 4, 2021 00:39
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ulmont posted:
Well they can't all be landmarks. This is a great post, thank you.
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Feb 4, 2021 01:04
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ulmont posted:Lineup: 
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Feb 4, 2021 01:14
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When have both Gorsuch and Kavanaugh joined against Roberts?
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Feb 4, 2021 02:27
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Platystemon posted:When have both Gorsuch and Kavanaugh joined against Roberts? Not sure. This set of visualizations suggests it must have happened at least once: https://harvardlawreview.org/supreme-court-statistics/ Since Gorsuch joined Kavanaugh 72.1% but Roberts 69.8%.
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Feb 4, 2021 03:59
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Now we get to see if Breyer retires while Biden has the WH and Dems the Senate or if he takes the Ginsburg route and then in 2027 President Tom Cotton nominates Lauren Boebert to fill his seat.
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Feb 4, 2021 06:03
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Will blue dogs demand a ~moderate~ replacement?
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Feb 4, 2021 06:35
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Evil Fluffy posted:Now we get to see if Breyer retires while Biden has the WH and Dems the Senate or if he takes the Ginsburg route and then in 2027 President Tom Cotton nominates Lauren Boebert to fill his seat. It'll be Marjorie Taylor Greene and no longer will middle-aged suburban blonde women have to suffer under the looming spectre of being banned from local bars and family restaurants just because they threw a chair at a pregnant woman.
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Feb 4, 2021 14:58
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Platystemon posted:Will blue dogs demand a ~moderate~ replacement? Biden would absolutely nominate Garland and you know it.
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Feb 4, 2021 19:10
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Sydin posted:Biden would absolutely nominate Garland and you know it. Garland is already nominated for DoJ, and also is not a black woman: https://twitter.com/joebiden/status/1232725514399301633?lang=en
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Feb 4, 2021 19:19
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Oh I'm aware, but the dems are obsessed with furthering Obama's pick to stick it to Mitch, apparently having decided to ignore that the only reason Obama ever nominated him for SCOTUS was to try to get a specific own in on Mitch, for whatever that was worth at the time. Getting Garland into SCOTUS to finally avenge Obama's honor will be more important to Biden then repeating the early Kagan years fiasco by sitting the acting AG.
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Feb 4, 2021 19:46
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ElegantFugue posted:Garland is already nominated for DoJ, and also is not a black woman: Supreme Court Justice Letitia James?
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Feb 4, 2021 20:34
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Sydin posted:Oh I'm aware, but the dems are obsessed with furthering Obama's pick to stick it to Mitch, apparently having decided to ignore that the only reason Obama ever nominated him for SCOTUS was to try to get a specific own in on Mitch, for whatever that was worth at the time. This is completely divorced from reality. It makes sense to select Garland for AG because of his background with US right wing terrorism as part of the department of justice. It also means he can be replaced in the DC circuit by a Democratic senate. He's highly experienced and he has a skill sets very closely aligned with what the department of justice needs in the present day. Biden has already promised a black woman on the Supreme Court, and really has really no incentive to put Garland there. Biden is not beholden to Obama and is not his lackey.
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Feb 4, 2021 20:39
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There is no rational reason whatsoever to believe that Biden will ever nominate Garland to the Supreme Court
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Feb 4, 2021 21:17
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Platystemon posted:Will blue dogs demand a ~moderate~ replacement? There's so far not only no evidence of this, but so far a lot of evidence of between a choice between a progressive or a conservative choice, Biden has basically went for the progressive choice. Given Biden's previous promises about the supreme court we'll absolutely get a younger progressive on the bench. Since Dems control the Senate and the Judiciary committee there's no reason to nominate a moderate especially since as long as she's qualified you'll get defections from the GOP in an up and down floor vote since there's no filibuster.
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Feb 5, 2021 06:43
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Raenir Salazar posted:There's so far not only no evidence of this, but so far a lot of evidence of between a choice between a progressive or a conservative choice, Biden has basically went for the progressive choice. Given Biden's previous promises about the supreme court we'll absolutely get a younger progressive on the bench. Since Dems control the Senate and the Judiciary committee there's no reason to nominate a moderate especially since as long as she's qualified you'll get defections from the GOP in an up and down floor vote since there's no filibuster. I agree that we'll see a black woman. There's no upside to Biden going back on that and every downside. It's too easy to find a qualified candidate to back down Progressive is a meaningless word by this point, I think we can look at the cabinet picks to date and come to very different conclusions on how they fit into the political spectrum. I certainly wouldn't anticipate anyone not squarely in the mainstream of the democratic party establishment, because that's just not who Joe Biden is, for better or for worse
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Feb 5, 2021 23:16
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Rigel posted:no rational reason Exactly, we're talking about the Democrats. In other SCOTUS news being religious continues to make you immune to the law, which is super cool and not at all a problem that they're just allowed to have super spreader events every week and then go walk back out into the general population: https://twitter.com/SCOTUSblog/status/1357921935708020737
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Feb 6, 2021 11:05
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Sydin posted:Exactly, we're talking about the Democrats. I don't see how you can make this sort of comment considering the Dems actually aren't loving anything up, and Schumer of all people is all aboard the "go big or go home" train. The evidence doesn't support this level of nihilistic cynicism anymore.
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Feb 6, 2021 18:32
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Raenir Salazar posted:I don't see how you can make this sort of comment considering the Dems actually aren't loving anything up, and Schumer of all people is all aboard the "go big or go home" train. The evidence doesn't support this level of nihilistic cynicism anymore. So far this looks correct but the reconciliation bill hasn't actually passed yet. And there's lots of stuff they're not doing because it isn't going in this bill, that they absolutely must get accomplished or we're all hosed (e.g., voting rights, PR statehood, etc.)
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Feb 6, 2021 18:38
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Hieronymous Alloy posted:So far this looks correct but the reconciliation bill hasn't actually passed yet. "Exactly, we're talking about the Democrats." Is still factually wrong even if you have concerns and reservations about things they haven't done yet. There is nuance to those discussions that preemptively declaring now and forever "Dems are a waste/inherently incompetent/etc" is not constructive, it's noise.
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Feb 6, 2021 19:04
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Hieronymous Alloy posted:So far this looks correct but the reconciliation bill hasn't actually passed yet. That has nothing to do with the idea that "because they're Democrats" is not a rebuttal to laying out exactly why the Democrats are not going to do the thing they said they're not going to do, for obvious reasons both sensible and self-serving. The initial claim--that they'd choose Garland--is stupid because there's literally no indication they want to do it and no strategic reason to do so, and if the counter to pointing this out is "Democrats are bad" then it's not a real rebuttal, it's a smokebomb.
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Feb 6, 2021 19:11
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https://twitter.com/mjs_DC/status/1357908501029396480
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Feb 6, 2021 19:19
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Raenir Salazar posted:"Exactly, we're talking about the Democrats." Is still factually wrong even if you have concerns and reservations about things they haven't done yet. There is nuance to those discussions that preemptively declaring now and forever "Dems are a waste/inherently incompetent/etc" is not constructive, it's noise. Sure, I'm just responding to your assertion that Raenir Salazar posted:the Dems actually aren't loving anything up, and Schumer of all people is all aboard the "go big or go home" train. The evidence doesn't support this level of nihilistic cynicism anymore. If the question is "are the Democrats loving up?" we're basically at the "signs point to NO" stage. It looks like you're right, you're probably right, but it's too soon to say definitively. It's gonna take a couple more weeks to find out. Once and if the reconciliation bill is passed we'll know where we stand. But right now it's too soon to tell either way. E.g., if Leahy gets hit by a bus or something similar and suddenly we're at 49-51 Democrats/Republicans, it's gonna look like Democrats hosed up by wasting time.
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Feb 6, 2021 19:19
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