Gill v Whitford

Wisconsin appealed the district court panel decision that its redistricting plan violated the rights of Democratic Party voters. The Court, with Thomas and Gorsuch concurring in part and in judgment, vacated and remanded. It held that Whitford and the other plaintiffs lacked standing because none proved at trial they live in a gerrymandered district and statewide partisan gerrymandering is not a basis for standing. Seven justices remanded the case with instructions to allow Whitford and the other plaintiffs to prove individualized harm. Kagan, Joined by Ginsberg, Breyer and Sotomayor, added a concurrence arguing that statewide evidence will be relevant if a plaintiff with standing is found, statewide remedies may be appropriate here, the partisan gerrymander here may violate the right of political association of voters, parties and party leaders which would implicate different standing requirements, and that partisan gerrymandering jeopardizes representative government and should be remedied by the courts. Thomas and Gorsuch concurred in part and judgment arguing the case would be dismissed for lack of standing.

Husted v Philip Randolph Institute

Ohio sought review the 6th Circuit decision that its program to remove inactive voters form its rolls violated federal law. The Court, 5-4, reversed. The majority held that et Ohio program  complies with 52 USC 20507(d) because it follows the language of the provision by mailing notice cards to inactive voters and gives those voters who do not return the car four years to vote before removing them from the rolls. It rejected Institute’s counterarguments holding language relied upon by Institute is a rule of construction not an exception to the 20507(d) process, its reading of the language renders the language redundant at best and is inconsistent with congressional action barring the removal of a voter solely for failure to vote and held Congress and Ohio can deem failure to respond as having evidentiary value. The majority rejected the dissents’ arguments holding the program compiled with federal law and there is no charge to federal courts to evaluate the reasonableness of such programs and held no evidence existed that Ohio has run the program with discriminatory intent. Thomas added a concurrence arguing that Institute’s and the dissents’ reading raise constitutional concerns as state have near plenary power to set voting requirements. Breyer, joined by Ginsberg, Sotomayor and Kagan, dissented arguing that states must act reasonably, cannot use failure to vote to purge the rolls, and must both identify possible changes in address and confirm them, that Ohio’s program fails these requirements because it uses failure to vote to identify possible changes of address, uses forwardable notices which are not meant to identify changes in address and the language relied upon by Institute gives it meaning while the majority reading renders it superfluous and argued Thomas’ concurrence is wrong because Congress has power to adopt voting requirements for congressional elections. Sotomayor added a dissent arguing the Ohio program is part of a long history of voter suppression against minorities and other disfavored groups.

South Dakota v. Wayfair, Inc.

South Dakota sought review of the South Dakota Supreme Court that the Court’s Quill decision barred South Dakota form requiring companies without physical presence to collect sales tax. The Court, 5-4, overruled Quill and remanded. The majority held the physical presence rule is not necessary to effectuate the substantial nexus requirement for state taxation of interstate commerce, causes market distortions, is an arbitrary formulaic distinction rejected by more recent commerce clause jurisprudence, ignores substantial virtual presence of companies using the internet to market good and services, a significant imposition on state tax authority and stare decisis did not require retaining the physical presence rule as the court created the problem, the economy has changed significantly since 1992, the rule is not easy to apply, there are no legitimate reliance interests and the burdens on small business can be remedied by tax software and other commerce clause theories. It held South Dakota’s statue satisfies the substantia nexus test given the requirement for proof of 200 or more transactions or sales of more than $100,000 and does not otherwise violate the Commerce clause as it does not discriminate against interstate commerce, does not apply retroactively and South Dakota is part on interstate agreement which significantly lessens the burden on business to comply with sale tax requirements. Thomas added a concurrence arguing Quill should have eliminated the physical presence rule and that the negative commerce clause doctrine is wrong and should be revisited. Gorsuch added a concurrence arguing Quill was a discriminatory tax shelter that was rightly eliminated here and further argued that the dormant commerce clause is a question for another day. Roberts, joined by Breyer, Sotomayor and Kagan dissented arguing that the physical presence rule was wrongly adopted in 1967 and wrongly reaffirmed in Quill, but, it is up to Congress to change the rule given the ecommerce economy has grown with eh physical presence rule as part of the legal background, the costs imposed on business by abandoning the rule and the superior ability of Congress to balance the competing interests.

Pereira v Sessions

Pereira sought review of the 1st Circuit decision that a notice without the time or place of his removal proceeding stopped the physical presence clock rendering him ineligible for cancelation of removal. Resolving circuit split on the issue, the Court reversed and remanded 8-1. The majority held that the plain language of 8 USC 1229(a) requires the time and place information be included in a notice to appear to stop the physical presence clock, this is supported by the provisions nearby which allow for the time and place to be changed with a new notice and which allow the noncitizen to obtain counsel and common sense dictates that a notice to appear at a minimum inform the noncitizen when and where to show up. It rejected the government’s counterarguments holding 1229(a) is definition, that “under” in the stop clock provision means in accordance with the notice to appear definition, and the phrases relied upon by the government are all best read to mean a notice that complies with 1229(a), and the practical concerns are meritless as time and place can be changed through an authorized new notice, hearings can be scheduled before notices are generated and legislative history does not change the outcome here. Kennedy added a concurrence arguing that reflexive deference under Chevron is troubling and Chevron should therefore be revisited. Alito dissented arguing that the majority ignored Chevron doctrine, the “under” means authorized by and not strict compliance with, Congress referenced all of 1229(a) not just the list of things that must be included, congress allowed show cause orders to stop the clock despite lacking time and place of hearing and the majority interpretation defeats any plausible congressional purpose here as the notice is generated by a  different department than the one which schedules hearings which will result in confusion when the notice is only a  guess as to time and place. He further argued the government position is reasonable given the text, context and even common sense and thus deference should be given to it.

Lucia v Securities and Exchange Commission

Lucia sought review of the DC Circuit decision rejecting his claim that the administrative law judge that heard his administrative proceeding was unconstitutionally appointed. The Court, resolving a circuit split, reversed 7 (6 justice majority and Breyer concurring in judgment in part)-2. The majority held that the administrative law judge here was in all material respects identical to the special trial judges of the United States Tax Court who were held officers of the United States for appointment clause purposes in the Court’s Freytag precedent and thus the judge here is an officer. It held the fact that the judge here had less options in enforcing discovery did not change the outcome nor did the fact that that commission gives less formal deference to the administrative law judge’s factual findings as Commission in fact gives sufficient deference in practice to eliminate any distinction. It remanded for a new hearing before Commission or an appropriately appointed judge and directed it be a different judge that the the one who heard Lucia’s case here. Thomas, joined by Gorsuch, added a concurrence arguing that in future appointment clause cases the test should be is the official charge with responsibility for ongoing statutory duties and the judge here was clearly an officer given the statutory duties assigned to him. Breyer concurred in judgment in part and dissented in part arguing the appointment was improper under the Administrative Procedures Act, the constitutional issue should be avoided in order to avoid deciding if the judge’s for cause protection is unconstitutional and that Congress has flexibility in creating inferior officers and deciding how they should be appointed. He was joined by Ginsberg and Sotomayor in arguing the case should go back to the same judge who has now been properly appointed or at least the issue should be resolved by the DC Circuit on remand. Sotomayor, joined by Ginsberg, dissented arguing that officers are limited to those show can make final binding decisions and the judge here did not qualify as his decisions were only recommendations to Commission.