Diary

Supreme Court December Oral Argument Schedule

Monday, November 30th

Van Buren vs. United States

The facts of this case are strange.  Nathan Van Buren was a police officer in Georgia who, through his service, asked a guy named Albo for a loan.  Albo was a shady character known for ripping off prostitutes at the time.  Albo relayed the request to police officials who then handed it off to the FBI.  They instituted a sting operation to see how far Van Buren was willing to go.  His fatal mistake was running a computer check on a license plate requested by Albo.  He was eventually charged with computer fraud.  In the end, the appeal is one of statutory interpretation and how far the wording of the law goes.

Trump vs. New York

This is the case asking whether for apportionment purposes the Census should count only US citizens.  First, the Court must decide if states have the standing to challenge the administration’s determination to include only citizens for this purpose.  As any conservative knows, the purpose of the census is first and foremost to determine apportionment among the states in the House.  Funding formulas, revenue sharing, and the largesse of the welfare state are all secondary to this purpose.  Second, as this writer has stated in the past, there could be a bifurcated census- one that counts US citizens for apportionment purposes and one that counts everyone for everything else.  This is a major case with enormous ramifications on how any future House may look.

Tuesday, December 1st

Nestle USA vs. John Doe 1

This is a class action case with enormous consequences.  The case started 14 years ago when several unnamed citizens of Mali made accusations that unnamed foreigners enslaved them to work on a cocoa plantation in West Africa.  Their suit is not against those who enslaved them, but against multinational cocoa suppliers and food and beverage companies claiming they aided and abetted the slavery.  The key question is whether such an aiding and abetting charge can be brought against an American company and whether the judiciary even has the authority to impose liability on domestic corporations.

Imagine if this case was not about slaves on a cocoa plant and instead about climate change.  Could a group of John Doe’s in Sweden sue American energy producers?  Can unnamed “slaves” in China sue Nike?

CIC Services vs. IRS

Another important case that seems like your average run-of-the-mill tax case.  Under the Anti-Injunction Act, plaintiffs are barred from filing a lawsuit that would restrain the government from assessing or collecting a tax.  But what about a regulatory mandate or its “penalty” ending up by acting as a tax?

Wednesday, November 2nd

Edwards vs. Vannoy

A procedural case of interest to legal junkies.

Monday, December 7th

Hungary vs. Simon

This case involves the Foreign Sovereign Immunities Act (FSIA).  A number of Hungarians, four of them American citizens, accusing the Hungarian government of a pogrom during World War II while under Nazi rule.  A District Court determined that even though suffering a harm and being US citizens, they should have first exhausted remedies in the Hungarian courts.

Germany vs. Phillipp

This case derives from US citizens who, at the time, has their property taken by the Nazi regime in Germany.  At issue is a particular exception to the FSIA which states that when “rights in property taken in violation of international law,” the foreign government is due no immunity.  The problem is that both Germany and Hungary have established frameworks for dealing with claims of survivors of the Nazi regime.

In the Hungarian case, the District Court determined the case could be handled in Hungarian courts, but the DC Court of Appeals shot down that line of reasoning.  But as the District Court said, the US judicial system would be transformed into a war crimes tribunal if these cases were heard in our system.  Finally, the international norms the survivors claim were violated are based on a 1947 treaty regarding war crimes and genocide.

Tuesday, December 8th

Facebook vs. Duguid

Noah Duguid began receiving messages from Facebook notifying him an unrecognized browser was trying to access his Facebook account.  The problem is Duguid had no such account.  His documented attempts to stop the messages was met with failure.  Federal law mandates that unsolicited calls must cease especially if the sender is notified by the receiver, especially if the message is from an automatic dialing system, which seems to be the case here.

The problem for Duguid is that the law at issue here was written and passed in 1991 and only sporadically updated as the world entered the digital age.  Facebook is arguing innocence based on the definition of an automatic dialing system in the law.  This case seems like an easy legislative fix.

Henry, Schwein and Archer vs. White Sales

A case about bankruptcy and arbitration.

Wednesday, December 9th

Collins vs. Mnuchin

In 2008, Congress passed a law creating the Federal Housing Finance Agency and gave it regulatory control over Fannie Mae and Freddie Mac.  At the time, they held over $5 trillion in mortgage assets.  The key issue here is whether the creation of the FHFA is a violation of the separation of powers.  Specifically, the Director is appointed by the President with the advice and consent of the Senate, serves a five-year term, and can only be removed “for cause.”

In 2012, a group of Fannie Mae and Freddie Mac shareholders sued the FHFA over a dividend agreement between the FHFA and the Treasury Department.  The group argued that the transfer was beyond the regulatory power of the agency and Department.  They further argued that the law violated the separation of powers doctrine in that (1) there is little to no Executive control over it, and (2) it does not depend on Congressional appropriations.

A panel of the Fifth Circuit agreed that the law, as written, violated the separation of powers and struck that language from the law.  However, they upheld the dividend agreement.  Before the full Fifth Circuit, a 9-7 ruling upheld the separation of powers argument citing a 1935 case- Humphrey’s Executor vs. United States.

However, using another case (Free Enterprise Fund vs. PCAOB), they ruled that although the structure of the agency was unconstitutional, the remainder of the law and the dividend agreement were permissible.  In other words, the structure of the agency was severed from the remainder of the law and any any regulatory actions taken by it.

The important question this time around is whether any action taken under an unconstitutionally organized agency should be valid and binding.

That’s it for the December oral argument calendar.