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Greetings, Court Fans!

Two more decisions this week as we round the bend to the final stretch of OT21. In Federal Election Commission v. Ted Cruz for Senate (No. 21-12), the Court struck down another section of the Bipartisan Campaign Reform Act of 2002 (BCRA), concluding that limitations on how and when a campaign may reimburse loans from the candidate after election day violate the First Amendment. And in Patel v. Garland (No. 20-979), The Nine held that federal courts lack jurisdiction to review factual findings underlying the denial of discretionary relief from removal under the Immigration and Nationality Act (INA).

We begin, just this once, with Ted Cruz. But first some background. Under federal campaign-finance law, candidates are permitted to spend unlimited amounts of their own money in support of their campaigns, and campaigns may borrow unlimited amounts, including from the candidates themselves. Campaigns can also accept contributions (capped at $2900) and can continue to accept contributions after an election in order to repay campaign debts. Where campaign debts are owed to the candidate himself, this raises the possibility that donors might make campaign contributions after an election knowing both that the candidate has won and that their contributions will be most welcome as they will help make the candidate whole. Section 304 of BCRA addressed this by restricting the use of post-election funds. It permits a campaign to repay no more than $250,000 to a candidate in funds raised after the election. Federal Election Commission regulations permits a campaign to use pre-election funds to repay loan amounts in excess of $250,000, but only if repayment is made within 20 days of the election. Any portion of the loan that remains after that 20-day period must be treated as a contribution to the campaign, precluding later payment.

Back in 2018, when Ted Cruz was facing off against Beto O’Rourke in what was then the most expensive Senate race in history, Cruz lent his campaign precisely $260,000. After the election, the campaign repaid him $250,000, but was unable (or unwilling?) to use preelection funds to repay the extra 10k within 20 days of the election. Cruz and the campaign brought suit against the FEC, alleging that Section 304 violates the First Amendment because it inhibits a candidate from spending his own money to support his campaign. A three-judge District Court granted summary judgment in their favor and the FEC appealed.  

The Supreme Court affirmed, in a 6-3 decision along ideological lines. Writing for the majority, the Chief Justice began by addressing the FEC’s argument that Cruz and the Campaign lacked standing to challenge Section 304. Though the FEC acknowledged that the Campaign’s inability to repay the last $10,000 constitutes an injury in fact to Cruz and the Campaign, it argued that these injuries were not fairly traceable to the threatened enforcement of Section 304. Cruz and the Campaign deliberately triggered the application of the loan-repayment limitation (it was no coincidence that Cruz donated just a tad more than the 250k that could be repaid with postelection funds), so the FEC argued that their injuries were traceable to themselves, not the law. The Chief rejected this argument out of hand, noting that the Court had never recognized an exception to Article III standing for injuries that a party purposely incurs.

Turning to the merits, the Chief concluded that the loan-repayment provision violated the First Amendment by burdening, without adequate justification, candidates who wish to make expenditure on their own behalf through personal loans. The statute and regulations may increase the risk that candidate loans will not be repaid in full, which in turn deters candidates from loaning money to their campaigns. This is significant, Roberts argued, because debt is an essential tool for financing electoral campaigns, especially for challengers and other less established candidates. Because Section 304 abridges political speech, it must be justified by a permissible government interest. The only such interest the Court has recognized in this area is the prevention of quid pro quo corruption. Here, in the Chief’s view, the Government had failed to identify a single case of this sort of corruption occurring, as opposed to the “sort of corruption, loosely conceived, that we have repeatedly explained is not legitimately regulated under the First Amendment.” Though the Government made a “common sense” argument that there is a heightened risk of corruption when donors make contributions after an election knowing that the funds will be used to directly enrich the candidate, as opposed to lining campaign coffers, the Chief noted that that assumption only makes sense if one assumes that the candidate would not otherwise be repaid. As the Government acknowledged, winning candidates typically are repaid by their campaigns. Because Section 304 did not further a permissible anticorruption goal, its intrusion on First Amendment rights could not be justified.

Justice Kagan led the charge for the dissenters, stressing the “special danger of corruption” posed by contributions that will indirectly line a candidate’s own pockets, given after the candidate’s election to office. In these situations, the candidate “has a more-than-usual interest in obtaining the money (to replenish his personal finances), and is now in a position to give something in return.” Thus the interests of both candidates and donors are aligned “to enhance the risk of dirty dealing.” In addition to highlighting this risk, Justice Kagan took the majority to task for overstating the burden Section 304 places on political speech in the first place. Though the majority concluded that the law burdened a candidate’s right to “self-fund” his campaign, the truth is that a candidate can “self-fund all he likes. The law impedes only his ability to use other people’s money to finance his campaign—much as standard (and permissible) contribution limits do.” Even assuming that the risk of quid pro quo corruption is the only permissible interest the government can advance through speech-restrictive campaign-finance laws, that risk (to say nothing of the appearance of quid pro quo corruption) is quite significant where post-election donations will personally enrich a winning candidate for office. “It takes no political genius to see the heightened risk of corruption,” Kagan wrote—“the danger of ‘I’ll make you richer and you’ll make me richer’ arrangements between donors and officeholders.”

On to Patel v. Garland, where a narrow majority held that federal courts lack jurisdiction to review factual findings made as part of adjustment-of-status proceedings and other discretionary-relief proceedings under the INA.

In the 1990s, Pankajkumar Patel entered the United States illegally. In 2007, he applied to the United States Citizenship and Immigration Services (USCIS) for discretionary adjustment of his status under 8 U.S.C. 1255, seeking to become a lawful permanent resident. While his application remained pending, Patel applied for a Georgia driver’s license and inadvertently checked a box on the application indicating that he was a U.S. citizen. To adjust status, Patel first had to establish that he was statutorily admissible for permanent residence. If so, then immigration officials had discretion to grant or deny his requested relief. USCIS denied the application at the first step, finding that he was ineligible for permanent residence because the INA renders inadmissible any noncitizen who “falsely represents . . . himself or herself to be a citizen of the United States for any purpose or benefit” under state or federal law. After the Government initiated removal proceedings against Patel, he sought relief from removal by renewing his adjustment-of-status request. He argued that the inaccurately checked box on the driver’s license application was an accident and that he therefore lacked subjective intent required for inadmissibility. An Immigration Judge denied the application, finding that Patel’s explanation was not credible, and ordered him removed. After the BIA affirmed, Patel appealed to the Eleventh Circuit, seeking review of the IJ’s factual determination that he had intentionally, rather than inadvertently, checked the driver’s license box. The Eleventh Circuit held that it lacked jurisdiction to review the IJ’s findings of fact because § 1252(a)(2)(B)(i) prohibits judicial review of “any judgment regarding the granting of relief” under § 1255 (the adjustment-of-status provision).

Patel sought certiorari, arguing that § 1252(a)(2)(B)(i) only bars judicial review of the IJ’s ultimate decision to grant or deny adjustment of status and does not bar review of decisions regarding an applicant’s eligibility for adjustment of status. The Government actually agreed with Patel that the Eleventh Circuit had gotten it wrong, though for a slightly different reason. The Government contended that § 1252(a)(2)(B)(i) bars judicial review of both the IJ’s ultimate decision to grant or deny relief and also the IJ’s discretionary determinations at the eligibility stage. (For example, a determination that removal would cause hardship to an applicant’s child involves discretion, while a determination that an applicant has not lived in the U.S. for ten years does not.) In Patel’s case, the government contended that the IJ’s factual determinations were nondiscretionary and therefore reviewable. Because the government did not support the Eleventh Circuit’s decision, the Supreme Court appointed an attorney to argue in support of the judgment as amicus curiae.

The Court affirmed the Eleventh Circuit’s decision in a 5-4 decision authored by Justice Barrett and joined by the Chief Justice, and Justices Thomas, Alito, and Kavanaugh. Justice Barrett explained that Congress had “sharply circumscribed judicial review of the discretionary review process” under § 1252(a)(2), permitting federal courts to review IJs’ conclusions of law but not findings of fact.  Section 1252(a)(2)(B)(i) removes federal courts’ jurisdiction to review “any judgment regarding the granting of relief under” certain listed statutes—with the qualification under § 1252(a)(2)(D) that the statute does not “preclud[e] review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.” This latter “qualification does not preserve review of questions of fact.” Justice Barrett rejected the Government’s argument that § 1252(a)(2)(B)(i) only precludes federal courts’ jurisdiction over “subjective or evaluative” findings of fact, concluding that this was an overly restrictive definition of the term “judgment” as used in that provision. The Court held instead that federal courts lack jurisdiction over any finding of fact “that underlie[s] a denial of relief.”

Justice Gorsuch authored a dissent, joined by Justices Breyer, Sotomayor, and Kagan. He began with a lament: “Today, the Court holds that federal bureaucracy can make an obvious factual error, one that will result in an individual’s removal from this country, and nothing can be done about it. No court may even hear the case.” The Government had rejected Patel’s application for legal residency “based on a glaring factual error” and yet the majority opinion “shield[ed] the government from the embarrassment of having to correct even its most obvious errors.” And it did so despite the fact that even the Government believed that obvious factual errors should be subject to judicial review. Because of the majority’s misreading of § 1252(a)(2), the Court had effectively foreclosed any correction of agency errors in processing green-card applications outside the removal context. “Perhaps some would welcome a world like that,” Justice Gorsuch mused. “But it is hardly the world Congress ordained.”

With that, we wish you a good weekend. We expect more opinions on Monday.

Tadhg and Dave