Block on Trump's Asylum Ban Upheld by Supreme Court
The opinion list consisted of a pro-business arbitration decision, a bench-slapping of the Ninth Circuit's approach to Armed Career Criminal Act sentencing, and an odd free speech for government funding case. (If you're waiting for the affirmative-action, marriage equality, or Defense of Marriage Act cases, they have yet to be released. Stay tuned, however, as next week is the final week in the Court's term. Expect a lot of decisions, and of course, a lot of blog posts.)
Here's a summary of Thursday's opinions:
A bunch of merchants were mad because AmEx required them to take both charge cards (paid in full at the end of the billing cycle) and credit cards (paid whenever, subject to interest). The latter apparently has higher fees. The merchants filed a class-action antitrust lawsuit, but were prohibited from doing so by the arbitration agreement, which provided that there was "no right or authority" to arbitrate on a "class action basis."
In short: contract said individual arbitration only.
Merchants pointed out that individual case-by-case arbitration would cost more than any potential recovery. The Second Circuit used an "effective vindication" exemption to the Federal Arbitration Act to hold that the merchants were effectively denied vindication through cost. However, the majority opinion, penned by Justice Scalia, held that "antitrust laws do not guarantee an affordable procedural path to the vindication of every claim." The "effective vindication" exemption, which he notes originated in dirty dictum, only applies when the contract outright denies a remedy -- not when it prices it out of reach.
"[I]t should be clear that the Ninth Circuit's new way of identifying ACCA predicates has no roots in our precedents. But more: Aguila-Montes subverts those decisions ..."
Yep. It's been a bad term for the Ninth Circuit, but nothing tops Justice Kagan's 23 pages of explication of ways in which the Ninth Circuit's "modified factual" approach to ACCA sentences was a blatant mistake.
The entirety of the distinction between "categorical," "modified categorical," and the Ninth Circuit's approach, derisively referred to as "modified factual," is material for an entire post (tomorrow!), but the short version is this: judges can't dig into the facts of prior cases when the statute itself is too vague to qualify as an ACCA "violent felony."
Here, the California statute for burglary could apply to offenses as minor as shoplifting because there is no illegal entry element in the statute. The Ninth Circuit looked at the facts of the case to determine that Descamps had committed an illegal entry, which SCOTUS points out is a no-no and begs Sixth Amendment right-to-jury questions.
Congress wants to fight AIDS and sees prostitution as a contributing factor; a law enacted in 2003 requires groups that receive AIDS funding under the act to "have a policy explicitly opposing prostitution." That condition violates the First Amendment, according to the Supreme Court.
As the Court explained, Congress can put conditions on funds earmarked for a specific program, but it cannot force an organization-wide view. For example, Congress can offer funds for a family-planning program on the condition the program doesn't advocate abortion -- but it may not require the organization as a whole to adopt an anti-abortion stance.
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