On Sept. 11, the Supreme Court stayed a preliminary injunction imposed by Judge Jon Tigar of the U.S. District Court for the Northern District of California against the third country asylum rule recently issued by the Department of Homeland Security (DHS). The rule would bar foreign nationals who cross the U.S.-Mexico border from receipt of U.S. asylum when they transit through a third country without applying for protection in that country.
Latest in SCOTUS
Chief Justice John Roberts is a complex and subtly innovative jurist. The Supreme Court’s census decision revealed his skills, particularly seen against the backdrop of the gerrymandering case decided the same day. His ruling against the executive may actually strengthen deference to executive discretion when wielded by a future normal presidency, but in his decisive opinion (joined in full by no other justice), Roberts also refined a neglected counterdeference tool—pretext analysis.
A kerfuffle erupted in the Senate Judiciary Committee on Tuesday over the committee’s access to a series of documents from Supreme Court nominee Brett Kavanaugh’s time in the Bush White House. The conflict concerned the withholding of material under an implied assertion of executive privilege and the relevance of the documents in question. There are a few different caches of documents and different reasons why senators do not have access to them.
We’re back after a one-week layoff! No SCOTUS announcement yet, alas, but we do have this to offer:
1. Doe v. Mattis and the upcoming hearing on the government’s plan to release Doe in Syria
2. The military commissions and the retirement of Judge Spath
3. Over in the civilian court system, Uzair Paracha, convicted back in 2005, just won a motion for a new trial based on newly-discovered evidence (involving CSRT and other statements from GTMO detainees)
Two weeks ago, the U.S. military received custody of an as-yet unnamed American citizen who had been captured in Syria by a Syrian Defense Force (SDF) fighter. The Pentagon soon confirmed that the person is being held in military detention as an enemy combatant, somewhere in theater, on the basis that he was a fighter for the Islamic State. Many days had gone by without further information, until today.
On Monday, April 3, the Supreme Court agreed to hear a new Alien Tort Statute case, Jesner v. Arab Bank, No. 16-499.
The decision in Zivotofsky v. Kerry, a blockbuster foreign policy-related Supreme Court case that many of us have been watching carefully, was just released: The DC Circuit is affirmed. The President holds the exclusive power to recognize foreign sovereigns, and the relevant statute compelling the Executive to write "Israel" on relevant passports impermissibly infringed on this exclusive authority to determine the status of Jerusalem.