Publications

Greetings, Court Fans!

It’s been a busy couple days at the Court, with eight decisions issued in the last two days, nearly all of which were closely divided and came out in favor of the Court’s conservative wing:

• Pugin v. Garland (No. 22-23), a 6-3 decision (with Justices Jackson and Gorsuch swapping places from the most-common 6-3 line-up) holding that an offense can “relate to obstruction of justice” for the purposes of deportation proceedings under §1101(a)(43)(S) even if the offense did not involve obstructing an already pending investigation or proceeding;

• Arizona v. Navajo Nation (No. 21-1481), where a five Justice majority held that an 1868 treaty between the United States and the Navajo Tribe did not require the United States to take affirmative steps to reserve necessary water for the Tribe, over the dissent of Justice Gorsuch and the Court’s three liberals;

• Yegiazaryan v. Smagin (No. 22-381), where a 6-3 Court concluded that whether an injury is “domestic” for purposes of RICO is context- and fact-specific, and does not turn entirely on the plaintiff’s residence;

• Jones v. Hendrix (No. 21-857), a 6-3 decision holding that inmates cannot avoid AEDPA’s limits on filing second or successive §2255 petitions by filing a §2241 habeas petition in the district where they are currently imprisoned;

• Samia v. United States (No. 22-196), a 6-3 decision upholding the admission of a codefendant’s confession in a joint trial under the Confrontation Clause, notwithstanding that the jury could have inferred that the “other person” described in the confession was the defendant;

• Coinbase, Inc. v. Bielski (No. 22-105), where a 5-4 Court held that a district court must stay further proceedings if a party takes an interlocutory appeal regarding the arbitrability of a lawsuit;

• United States v. Hansen (No. 22-179), a 7-2 decision holding that a statute prohibiting “encouraging or inducing an alien to come to, enter, or reside in the United States” with knowledge that it will violate the law is not overly broad under the First Amendment; and

• United States v. Texas (No. 22-58), the lone nearly unanimous decision, where eight Justices concluded that Texas and Louisiana lacked standing to challenge immigration-enforcement guidelines issued by the Biden administration, over the solo dissent of Justice Alito.

That leaves seven decisions to be issued next week, the last week of OT22. And among that (now relatively short) list of outstanding decisions are some of the biggest cases of the term, addressing affirmative action, First Amendment challenges to public-accommodation laws and workplace practices, and the validity of the Biden Administration’s student-loan forgiveness plan. We’ll be back next week to give you quick breakdowns of those cases, as well as more-detailed summaries of this week’s decisions. But in the meantime, we have summaries of the last three decisions from last week:

• Haaland v. Brackeen (No. 21-376), where a 7-2 Court upheld the Indian Child Welfare Act, a federal statute aimed at keeping Indian children connected to Indian families in state-court adoption and foster-care proceedings;

• United States ex rel. Polansky v. Executive Health Resources, Inc. (No. 21-1052), where eight Justices agreed that the government can move to dismiss a False Claims Act suit even if the government intervenes in the case after the sealing period;and

• Lora v. United States (No. 21-376), in which the Court unanimously held that 18 U.S.C. §924(c)’s bar on concurrent sentences for convictions imposed “under this subsection” does not apply to sentences imposed under a different subsection, §924(j).

We’ll start today with Haaland v. Brackeen (No. 21-376), where the Court grappled with a cavalcade of constitutional challenges to a decades-old statute, the Indian Child Welfare Act (ICWA). The petitioners, an assortment of public and private parties, argued the ICWA exceeded congressional authority, infringed state sovereignty, discriminated based on race, and unlawfully delegated authority to Indian tribes. From these challenges came five opinions (one from each of the conservative Associate Justices), so there is a lot to cover. To save you the suspense, the bottom line is that the Court rejected every challenge. But for the details on what may be a landmark decision on the relationship between the federal government, states, and Indian tribes, we’ve got you covered.

Congress enacted the ICWA in 1978 to solve a problem: Many Indian children were being removed from their families by public and private nontribal agencies without justification. Not only did these removals harm the children and their families, they harmed Indian tribes that rely on their children to keep their heritage alive. Congress thus enacted the ICWA with the aim of keeping Indian children connected to Indian families. The statute governs all child-custody proceedings involving Indian children, and it defines Indian children broadly to include not just children who are members of an Indian tribe, but anyone who is eligible for membership in a tribe and is the biological child of a member of a tribe.

The ICWA provides particularly stringent safeguards for involuntary proceedings, that is, those to which the child’s parents do not consent. Any party who initiates an involuntary proceeding in state court to place an Indian child in foster care or terminate parental rights must notify both the parent and the Indian child’s tribe, which has rights to intervene. The party attempting to terminate parental rights then must show that efforts have been made to prevent the breakup of the Indian family and that those efforts were unsuccessful. The court cannot order a foster care placement unless it finds by clear and convincing evidence, including testimony by expert witnesses, that the continued custody of the child by the parent is likely to cause serious emotional or physical damage to the child. And the court must make those findings beyond a reasonable doubt. The statute applies in voluntary proceedings too, and tribes can intervene and collaterally attack state court decrees in those cases as well.

Whether voluntary or involuntary, the ICWA also creates placement preferences aimed to keep Indian children with Indian families. For adoption, a preference is given to placements with (1) a member of the child’s extended family; (2) other members of the child’s tribe; or (3) other Indian families. For foster care, a preference is given to (1) the child’s extended family; (2) a foster home licensed, approved, or specified by the child’s tribe; (3) an Indian foster home licensed or approved by a non-Indian authority; and (4) another institution approved by the tribe or operated by an Indian organization that can meet the child’s needs. While courts must abide by these preferences absent good cause to depart from them and states must record each placement, the child’s tribe may alter the preference order. As you can probably gather, under this order, Indians from any tribe outrank non-Indians for both adoption and foster care.

Turning to this case, the petitioners—a birth mother, foster and adoptive parents, and the State of Texas—sued the federal government, alleging that Congress lacked authority to enact the ICWA under Article I of the Constitution; that some of the ICWA’s requirements violate the anticommandeering principle of the Tenth Amendment; that the placement preferences violate the Equal Protection Clause; and that the recordkeeping requirements violate the nondelegation doctrine. The District Court accepted every argument, but the Fifth Circuit initially reversed. On en banc review, though, the Fifth Circuit changed its tune, affirming the District Court’s holdings on the Tenth Amendment challenge and some of the Equal Protection challenges. It stuck with the original panel’s reversal of the holdings as to the Congressional authority and nondelegation challenges, as well as some of the Equal Protection challenges.

Writing for a 7-2 majority, Justice Barrett turned aside each challenge with the efficiency of a district judge dismissing a run-of-the-mill complaint. She first addressed whether Congress had the constitutional authority to enact the ICWA, beginning by outlining Congress’s power to legislate with respect to Indian tribes. The Court has consistently described that power as “plenary and exclusive.” While the Court has rarely linked a challenged statute to a specific provision in the Constitution and never defined the limit of this power, there are constitutional hooks. One of them is the Indian Commerce Clause, which authorizes Congress “[t]o regulate Commerce . . . with the Indian tribes” and has been interpreted to implicate not only trade, but “Indian affairs” as well. Another is the Treaty Clause, which lets the federal government enter treaties with Indian tribes. The structure of the Constitution itself lends authority too, as the Constitution includes unenumerated powers inherent in any federal government. Finally, one cannot ignore the “trust relationship between the United States and the Indian people,“ under which the federal government has moral obligations toward tribes.

This landscape of congressional authority was too much for the petitioners to overcome. Barrett first rejected the premise that a federal statute cannot regulate domestic relations—an area she conceded is primarily governed by state law—because whenever Congress legislates under its constitutional authority, any conflicting state law is preempted, no matter what field of law it touches. In other words, there is no “constitutional carveout” for family law.

With that out of the way, Barrett then proceeded to toss aside all the petitioners’ arguments that the ICWA fell outside the various constitutional hooks for congressional authority. Contrary to petitioners, the Indian Commerce Clause gives Congress the power to regulate “Indian affairs,” not just Indian trade. The Treaty Clause was of no moment because Congress did not rely on it in enacting the ICWA. And the structure of the Constitution gives the federal government many unenumerated powers touching on a diverse range of subjects, not just war and peace.

Having upheld the Fifth Circuit’s conclusion that the ICWA is a valid exercise of Congress’s Article I authority, Barrett moved on to the anticommandeering challenges, which she grouped into three categories. First, the petitioners challenged the requirements that a party initiating an involuntary proceeding make efforts to keep the Indian family together; notify the parent or Indian tribe of the proceeding; and demonstrate with expert testimony the child is likely to suffer serious emotional or physical damage if the parent retains custody. Barrett quickly disposed of that, finding that because all these requirements applied to both state and private actors (individuals can initiate custody proceedings, after all), there was no commandeering problem.

Second, the petitioners challenged the placement preferences, reasoning Congress cannot compel state officials to search for a federally preferred placement. But, Barrett reasoned, the preferences don’t actually require anyone to search for alternative placements, let alone command states to do so. And even though the ICWA does require state courts to apply the placement preferences, the fact that a federal statute modifies a state cause of action (such as one involving child custody) does not make it any less preemptive; federal laws trump conflicting state laws. Finally, Barrett rejected the petitioners’ argument that the recordkeeping requirements unlawfully conscripted state courts, holding Congress may impose ancillary recordkeeping requirements related to state-court proceedings, where state courts are already required to apply federal law.

Finally, Barrett concluded that none of the petitioners had standing to raise the Equal Protection and nondelegation challenges. While the individual petitioners claimed that the ICWA placed them on “unequal footing” with Indian parents, neither an injunction nor a declaratory judgment would redress this injury because state courts and state agencies apply and carry out the placements, and none of them were parties in the litigation. And Texas, which was also a petitioner, neither has Equal Protection rights of its own to assert, nor can it bring Equal Protection claims on behalf of its citizens. Finally, Barrett rejected Texas’s argument that it would be injured by a tribal resolution altering the placement preferences. The majority thus affirmed the Fifth Circuit’s decision in all the respects in which it had upheld the ICWA and reversed it in all respects in which it had not.

Four other justices weighed in as well, and their concurrences and dissents are nearly three times as long as the Court’s majority opinion. First, Justice Gorsuch, partially joined by Justices Sotomayor and Jackson, concurred “to add some historical context.” Perhaps more accurately, “a lot of,” as he proceeded over 40 pages to mount a full-throated defense of tribal sovereignty, as he has done in nearly every other case involving the issue since joining the Court (also seen in his dissent yesterday in Navajo Nation). After extensively detailing the practice of removing Indian children from their families that prompted the ICWA, he called upon colonial and Founding-era history to show how the Constitution embodies a “bargain” between the United States and the tribes, under which the tribes are independent sovereigns, states have virtually no role to play in Indian affairs, and the federal government has robust powers. He then veered away from the Court’s reasoning, asserting that although these powers are “limited and enumerated” as opposed to “plenary,” the Indian Commerce Clause gave Congress authority to enact the ICWA because it concerns all relations with Indians, not just trade. He nevertheless joined the Court’s opinion in full.

Next, Justice Kavanaugh concurred to remind everyone that the Court did not decide the merits of the Equal Protection challenge, which in his view is “serious,” i.e., a potential winner. File this one away as another example of Kavanaugh using concurrences to gesture toward alternative arguments he might be willing to accept in another case.

Justices Thomas and Alito each dissented. In a dissent almost as long as Gorsuch’s concurrence, Thomas leaned on his own historical interpretation to argue Congress lacked authority to enact the ICWA. In his view, the Court’s analysis was flawed from the start. Instead of asking whether the petitioners established Congress lacked authority, it should have asked whether Congress had authority. After shifting the burden away from the petitioners, Thomas concluded Founding-era history and constitutional text shows Congress has a set of enumerated powers regarding Indian tribes, none of them gives rise to a “plenary” power, and none of them supports the ICWA. Finally, he attacked the precedents discussing a “plenary” power, keeping up with his familiar position that if precedents are wrong, they should simply be disregarded.

Justice Alito, meanwhile, argued Congress lacked authority to enact the ICWA because family law is the exclusive domain of states. Why? Under the principle of dual sovereignty, which is embedded in the Constitution’s structure and reinforced by the Tenth Amendment, states have “reserved powers.” While the Court has never enumerated these powers, it has long recognized that regulating domestic relations is one of them. Even if Congress’s Indian law-powers were “plenary,” they must take a backseat to such a “foundational constitutional constraint.” The ICWA, by intruding on states’ turf, therefore must fall.

While the Court turned away challenges that, if successful, could have dramatically altered the relationship between Indian tribes, state, and the federal government, its decision may be more modest than it seems. Indeed, as Justice Thomas noted, the Court didn’t actually say that Congress had the authority to enact ICWA; it only rejected the petitioners’ arguments for why it didn’t. The only justice who did affirmatively state that Congress had the requisite authority was Justice Gorsuch, and nobody else joined that part of his concurrence.

Also worth noting is the Court’s repeated deference to precedent, and shaky precedent at that. Justice Barrett was under no illusion that caselaw describing a “plenary” federal power regarding Indians was problematic: she admitted it “is unwieldy,” and Justice Gorsuch outright disagreed with it. But they stuck with it anyway and even chided the petitioners for failing to engage with it, pointedly noting “they frame their arguments as if the slate were clean” when “it is anything but.” Even Justice Thomas, in arguing this precedent should be discarded, criticized the petitioners for not discussing it.

Our second case for today, United States ex rel. Polansky v. Executive Health Resources, Inc. (21-1052), will have a potentially far-reaching impact on False Claims Act (“FCA”) litigation by significantly enhancing the power of the Government vis-a-vis the relator who brought the action. Polansky affirmed the Third Circuit’s decision that the Government can move to dismiss a FCA case even when it did not intervene during the initial seal period. In doing so, the Court made clear that, while the Government needs good cause to intervene later in the case, once it has intervened, it has all the same rights that it would have had if it had intervened in the seal period. (This might be news to a quite a few FCA litigators, who could be forgiven for thinking the seal period was a highly meaningful demarcation!) 

By way of quick background, the FCA is a unique statute, in that it allows a private party (known as a “relator”) to bring claims on behalf of the Government for an injury that is exclusively to the Government’s interest. In the paradigmatic case, a contractor has fraudulently billed the Government for services not rendered. A private party who learns of the fraud (often a former employee of the contractor) files suit to recover on behalf of the Government and, in the process, is allowed to receive a percentage of the Government’s recovery. FCA cases must initially be filed under seal and the Government has “at least 60 days,” a period that is frequently extended, (the “seal period”) to investigate the claims and see if it wishes to intervene. Under 31 U.S.C. §3730(c)(1), if the Government “proceeds with the action, it shall have the primary responsibility for prosecuting the action.” Section 3730(c)(2) grants the Government various rights, including the right to dismiss or settle the action (even over the objection of the relator). Under §3730(c)(3), if the Government “elects not to proceed,” the relator “shall have the right to conduct the action” but, in that event, “the court, without limiting the status of the rights of the person initiating the action, may nevertheless permit the Government to intervene at a later date upon a showing of good cause.”

In Polansky, the Government did not intervene during the seal period and the relator spent significant time and money pursuing the action on the Government’s behalf. However, in defending the action, Executive Health Resources sought substantial discovery from the Government. Ultimately, the Government determined that the burden of responding to this discovery outweighed the potential benefits to the Government in pursuing the action and requested that the District Court dismiss the case. The District Court granted the motion and the Third Circuit affirmed. The Court then granted certiorari to determine: (1) when the Government has the rights under subsection 2, including the right to dismiss a case over the relator’s objections; and (2) what standard should be applied in considering a motion to dismiss by the Government.

Justice Kagan drafted the opinion of the nearly unanimous Court, in which the Court rejected the positions advanced by both parties in favor of the middle ground adopted by the Third Circuit. The Government argued that, as the real party in interest in an FCA action, it should have the power to request dismissal at any time—even if it never intervened at all. Kagan dismissed that out of hand, pointing to the statutory framework that allows the relator to control the action if the Government “elects not to proceed” and to the general rule that only parties can dismiss a case.

At the other end of the spectrum, the relator argued that the Government could request dismissal only if it intervened during the seal period. But Kagan quickly dispatched that argument too, concluding that once the Government has been granted the right to intervene after the seal period under subsection 3, it “proceeds with the action” and therefore under subjection 1, has the “primary responsibility” for prosecuting the action. That primary responsibility naturally comes with the rights of subsection 2, including the right to pursue dismissal.

Turning to the standard that should be applied to a motion to dismiss by the Government, Kagan concluded that the usual rule under Federal Rule of Civil Procedure 41(a) governing voluntarily dismissals should apply, as the FCA does not displace the rules of civil procedure unless it says so. The only modification here is that the FCA requires notice and a hearing before a dismissal can be entered and the interests considered should include the relator’s interests given the resources they may have invested in the case. That said, the Court noted that in all but the most exceptional circumstances the Government’s request to dismiss should be granted.

Justice Thomas dissented. In his view, the FCA’s structure made clear that the Government’s and the relator’s rights shift substantially after the seal period. If the Government intervenes during the seal period, it “proceeds with the action” and has primary responsibility for it. That primary responsibility includes (under subsection 2) the right to dismiss or settle over the relator’s objections. However, if the Government sits on its hands and “elects not to proceed,” under subsection 3, the relator “shall have the right to conduct the action.” While the Government may request to intervene later, this intervention “may not limit the status and rights” of the relator. Thus, the Government no longer has primary responsibility for the action and cannot settle or dismiss without the relator’s consent. As Thomas explained, this also makes sense with the structure of the FCA, which recognizes that the relator will expend significant sums to pursue the action if the Government does not intervene and thus permits a larger percentage award of the recovery in that instance. But this statutory interpretation issue did not end the matter, in Thomas’s view, because there are serious questions under Article II as to whether Congress could empower a private individual to pursue the Government’s rights. Thus, he would remand for consideration of that issue. And Thomas was not alone in that view: Justice Kavanaugh (joined by Justice Barrett) penned a one paragraph concurrence to note that while he agreed with the majority’s statutory interpretation, he also agreed with Justice Thomas’s concerns about the constitutionality of the statute. So, all you FCA defendants out there: take notice and don’t forget to raise this defense.

Our last case for today is Lora v. United States (No. 21-376), where Justice Jackson demonstrated her textualist chops in the context of the Armed Career Criminal Act (ACCA). Writing for a unanimous Court, she held that a provision of the ACCA, codified at 18 U.S.C. §924(c), which bars concurrent sentences for persons sentenced “under this subsection” does not extend to sentences imposed under a different subsection, 18 U.S.C §924(j).

Efrain Lora was convicted of violating §924(j)(1), which penalizes “a person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm,” where “the killing is a murder.” Lora was also convicted of conspiring to distribute drugs in violation of 21 U.S.C. §§841 and 846.

Section 924(c) is clearly related to those charges: It is violated when a person “uses or carries a firearm . . . during and in relation to any crime of violence or drug trafficking crime,” or “possesses a firearm . . . in furtherance of any such crime.” One of §924(c)’s provisions, §924(c)(1)(D)(ii), specifies that “no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment.” That provision thus overrides the general rule, codified at 18 U.S.C. §3584, that district courts have discretion to run sentences concurrently or consecutively.

At Lora’s sentencing, the District Court concluded that it lacked discretion under §3584 to run the sentences for Lora’s convictions concurrently, because §924(c)(1)(D)(ii)’s bar on concurrent sentences also governed his §924(j) sentence. The Second Circuit affirmed, joining the Third, Fourth, Eighth, and Ninth Circuits. But the Tenth and Eleventh Circuits have disagreed, so the Court granted certiorari to resolve the split.

Writing for a unanimous Court, Justice Jackson began (and essentially ended) with the plain text. Section 924(c)’s consecutive-sentences requirement applies to a “term of imprisonment imposed on a person under this subsection.” “This subsection” is subsection (c). By the statute’s plain terms, then, “Congress applied the consecutive-sentence mandate only to terms of imprisonment imposed under that subsection.” Section 924(c) then proceeded to proscribe a host of offenses (in (c)(1) through (c)(5)), and to provide various terms of imprisonment for them. Under a plain reading of the statute, those are the “term[s] of imprisonment imposed . . . under this subsection” that the consecutive-sentence mandate references.

But Congress placed the offence Lora was convicted of (and sentenced under) in a different subsection, subsection (j). No similar consecutive-sentence mandate exists in that subsection. And while it’s true that subsection (j) references subsection (c), it does so only with respect to the offense elements, not the penalties. Because courts “need not consult subsection (c)’s sentences in order to sentence a subsection (j) defendant,” a defendant like Lora sentenced under subsection (j) has not been sentenced under subsection (c).

Finally, Jackson rejected the Government’s argument that “Congress incorporated Section 924(c) as a whole into Section 924(j),” concluding that “actual statute bears no resemblance to the Government’s vision.” As she observed, subsection (j) never even mentioned, let alone incorporated, subsection (c)’s penalties. And in a similar vein, she rejected the Government’s attempt to read the statute holistically, explaining that subsection (j), enacted nearly three decades after subsection (c), follows an entirely different approach to sentencing the offenses it covers.