In
RELIST WATCH
Private nondelegation
Seven of the new relists are challenges to the constitutionality of the Horseracing Integrity and Safety Act, enacted with broad bipartisan support during the waning days of the first Trump administration in an effort to improve safety in the horse-racing industry. The Troubled by the industry’s high rates of injury, death, and use of performance-enhancing drugs, Congress created a private, nonprofit corporation called the Horseracing Integrity and Safety Authority and authorized it to issue nationwide safety and anti-doping rules, monitor state industries for compliance, and sanction or sue violators. The Congress In They They also argued that forcing the states to fund the authority conscripts state resources to implement a federal program, in violation of a judicial doctrine that bars the federal government from “commandeering” state resources.
The district court dismissed both claims. The The The The U.S. Court of Appeals for the 5th Circuit initially ruled that the provisions of the law giving the authority the power to make rules were unconstitutional under the private nondelegation doctrine.
After Congress amended the law to give the FTC the power to make changes to the authority’s rules, the trade group returned to court to renew its challenge. The It The “That is the same framework,” the authority noted, “that has governed the relationship between the Financial Industry Regulatory Authority (FINRA) and the Securities and Exchange Commission (SEC) for 85 years.”
The Biden administration agreed that the Supreme Court should put the 5th Circuit’s ruling on hold, stressing that the Supreme Court has “long applied a strong presumption in favor of allowing a challenged statute to remain in effect pending judicial review,” particularly when two other federal courts of appeals have upheld the same enforcement provisions.
In a one-paragraph order, the justices granted the authority’s request. The Justice Ketanji Brown Jackson wrote in a brief dissent that the authority had not shown any real emergency justifying the court’s intervention at that stage.
The FTC, the authority, Texas, and participants in the horse-racing industry seek review of various aspects of the 5th Circuit’s judgment; the Arkansas challengers seek review of the 8th Circuit’s decision; and Oklahoma, Louisiana, and a group of industry challengers seek reconsideration of the Supreme Court’s decision to deny review of the 6th Circuit decision.
Judicial factfinding for restitution
Under Apprendi v. New Jersey, “
ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” That rule has been broadly applied in a variety of contexts, and in Southern Union Co. v. United States, the court held that juries must find all the facts necessary to impose a criminal fine on the defendant.[ing]But what about the imposition of a criminal restitution order? Lower They They In The The These Both The The The J But even if the Second Amendment did cover assault rifles, the majority continued, Maryland’s law would still be constitutional because it is consistent with a long history of states regulating dangerous firearms.
Five judges dissented, in an opinion written by Judge Julius Richardson. The Further, they contend that Maryland’s outright ban on these weapons is overly restrictive, barring ownership of the most commonly owned assault rifle in the United States.
The state defends the 4th Circuit’s ruling, and it adds that the Supreme Court’s intervention at this point would be premature because the lower courts are only now starting to consider the question of regulating assault weapons in light of Bruen.
It would probably crash the internet to write up all 17 of the other relists, but the questions presented in each of this week’s new relists are set forth below.
New Relists
Rimlawi v. United States, 24-23
Issues: [o](1) Whether the court of appeals erred in applying the guilt-based approach, rather than the error-based approach, to assess the harmlessness of the confrontation clause error; and (2) whether, under Apprendi v. New Jersey, the facts underlying a restitution award must be proved to, and found by, a jury beyond a reasonable doubt (and, in federal cases, charged in a grand jury indictment).
(Relisted after the Jan. 10 conference. )
Shah v. United States, 24-25
[Disclosure: I am among the counsel to Mrugeshkumar Kumar Shah.]
Issue:
Whether the Sixth Amendment reserves to juries the determination of any fact underlying a criminal restitution order.
(Relisted after the Jan. 10 conference. )
Ocean State Tactical, LLC v. Rhode Island, 24-131
Issues:
(1) Whether a retrospective and confiscatory ban on the possession of ammunition-feeding devices that are in common use violates the Second Amendment; and (2) whether a law dispossessing citizens without compensation of property that they lawfully acquired and long possessed without incident violates the takings clause of the Fifth Amendment.
(Relisted after the Jan. 10 conference. )[Second Amendment’s]Pina v. Estate of Jacob Dominguez, 24-152[ing]Issue:
Whether the U.S. Court of Appeals for the 9th Circuit erred, so as to warrant summary reversal, by refusing qualified immunity without identifying any precedent finding a Fourth Amendment violation based on similar facts and, indeed, overriding its own cases holding an officer would not violate the Constitution under the circumstances the jury found.
(Relisted after the Jan. 10 conference. )
Snope v. Brown, 24-203
Issue:
Whether the Constitution permits Maryland to ban semiautomatic rifles that are in common use for lawful purposes, including the most popular rifle in America.
(Relisted after the Jan. 10 conference.) Woodward v. California, 24-227
Issue:
Whether the Supreme Court of California’s narrow test for an “acquittal,” limited only to circumstances where the record clearly shows that the judge correctly applied the substantial-evidence standard, conflicts with this court’s precedent under the Fifth Amendment’s double jeopardy clause.
(Relisted after the Jan. 10 conference.)A.J.T. v. Osseo Area Schools, Independent School District No. 279, 24-249
Issue
: Whether the Americans with Disabilities Act of 1990 and Rehabilitation Act of 1973 require children with disabilities to satisfy a uniquely stringent “bad faith or gross misjudgment” standard when seeking relief for discrimination relating to their education.
(Relisted after the Jan. 10 conference. Par SS 2107 (a)-(b), expires, a second duplicate notice must be filed after the appeal period has been reopened pursuant to subsection (c) of this statute and Federal Rule of Appellate Procedure 4. (Relisted after the January 10 conference. )
Mahmoud v. Taylor, 24-297
Issue:
Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.(Relisted after the Jan. 10 conference. )
Laboratory Corp of America Holdings v. Davis, 24-304
Issue:
Whether a federal court may certify a class action when some of its members lack any Article III injury.(Relisted after the Jan. 10 conference. )
Soto v. United States, 24-320
Issue:
What test courts and agencies should use to determine whether, when a person makes a demand for money from the federal government pursuant to federal statute, that statute includes a settlement procedure that displaces the default procedures and limitations set forth in the Barring Act.(Relisted after the Jan. 10 conference. )
Franklin v. New York, 24-330
Issues
: (1) Whether the Sixth Amendment’s confrontation clause applies to out-of-court statements admitted as evidence against criminal defendants if, and only if, the statements were created for the primary purpose of serving as trial testimony; and (2) whether a post-arrest report prepared about a criminal defendant by an agent of the state for use in a criminal proceeding can be admitted as evidence against the defendant at trial, without providing a right to cross-examine the report’s author.(Relisted after the Jan. 10 conference. )
Speech First, Inc. v. Whitten, 24-361
Issue:
Whether university bias-response teams — official entities that solicit anonymous reports of bias, track them, investigate them, ask to meet with the perpetrators, and threaten to refer students for formal discipline — objectively chill students’ speech under the First Amendment.(Relisted after the Jan. 10 conference. )
Martin v. United States, 24-362
Issue
: (1) Whether the Constitution’s supremacy clause bars claims under the Federal Tort Claims Act — a federal statute enacted by Congress — when the negligent or wrongful acts of federal employees “have some nexus with furthering federal policy and can reasonably be characterized as complying with the full range of federal law;” and (2) whether the act’s discretionary-function exception bars claims for torts arising from wrong-house raids and similar negligent or wrongful acts by federal employees.(Relisted after the Jan. 10 conference. )
Oklahoma Statewide Charter School Board v. Drummond, 24-394
Issues
: (1) Whether the academic and pedagogical choices of a privately owned and run school constitute state action simply because it contracts with the state to offer a free educational option for interested students; and (2) whether a state violates the First Amendment’s free exercise clause by excluding privately run religious schools from the state’s charter-school program solely because the schools are religious, or instead a state can justify such an exclusion by invoking anti-establishment interests that go further than the First Amendment’s establishment clause requires.(Relisted after the Jan. 10 conference.)
St. Isidore of Seville Catholic Virtual School v. Drummond, 24-396
Issues
: (1) Whether the academic and pedagogical choices of a privately owned and run school constitute state action simply because it contracts with the state to offer a free educational option for interested students; and (2) whether a state violates the First Amendment’s free exercise clause by excluding privately run religious schools from the state’s charter-school program solely because the schools are religious, or instead a state can justify such an exclusion by invoking anti-establishment interests that go further than the First Amendment’s establishment clause requires.(Relisted after the Jan. 10 conference. )
Oklahoma v. United States, 23-402
Issues
: (1) Whether the Horseracing Integrity and Safety Act of 2020 violates the private nondelegation doctrine; and (2) whether the act violates the anti-commandeering doctrine by coercing states into funding a federal regulatory program.(Relisted after the Jan. 10 conference. )
Walmsley v. Federal Trade Commission, 24-420
Issues
: (1) Whether the Horseracing Integrity and Safety Act unlawfully delegates enforcement power to the Horseracing Integrity and Safety Authority; and (2) whether the act unlawfully delegates rulemaking power to the authority.(Relisted after the Jan. 10 conference. )
Davis v. Smith, 24-421
Issue
: Whether the U.S. Court of Appeals for the 6th Circuit exceeded its powers under the Antiterrorism and Effective Death Penalty Act in concluding that “every fairminded jurist would agree” that the Ohio courts violated the Constitution in refusing to bar testimony from a victim of an attempted murder identifying her attacker.(Relisted after the Jan. 10 conference. )
Federal Trade Commission v. National Horsemen’s Benevolent and Protective Association, 24-429
Issue:
Whether the enforcement provisions of the Horseracing Integrity and Safety Act of 2020 — which allow the Horseracing Integrity and Safety Authority, a private entity, to assist the Federal Trade Commission in enforcing the statute–violate the private nondelegation doctrine on their face.(Relisted after the Jan. 10 conference. )
Horseracing Integrity and Safety Authority, Inc. v. National Horsemen’s Benevolent and Protective Association, 24-433
Issue:
Whether the enforcement provisions of the Horseracing Integrity and Safety Act of 2020 are facially unconstitutional under the private nondelegation doctrine.(Relisted after the Jan. 10 conference. )
Texas v. Black, 24-465
Issue
: Whether Congress has unconstitutionally delegated legislative authority to a private entity in the Horseracing Integrity and Safety Act of 2020.(Relisted after the Jan. 10 conference. National Horsemen’s benevolent and protective Association v. Horseracing Integrity and Safety Authority, Inc., 24-472
Issue
Whether or not the Horseracing Integrity and Safety Act gives legislative power to the Horseracing Integrity and Safety Authority, a private corporation, in violation of the Article I, section I, Clause I of the Constitution.
Relisted after the January 10 conference. )Jimerson v. Lewis, 24-473
Issue
: Whether Maryland v. Garrison clearly established that officers violate the Fourth Amendment when they search the wrong house without checking the address or conspicuous features of the house to be searched.
(Relisted after the Jan. 10 conference. Gulf Coast Racing, L.L.C. v. Horseracing Integrity and Safety Authority, Inc., 24-489Issues:
(1) Whether Congress can empower a purportedly private nonprofit entity to regulate an entire industry nationwide through rulemaking, adjudication and enforcement powers, and therefore to exercise significant authority pursuant to the laws of the United States, without proper appointments under the appointments clause of the Constitution; and (2) whether statutorily empowering a private nonprofit corporation to regulate an entire industry nationwide through rulemaking, adjudication and enforcement violates the private nondelegation doctrine.
(Relisted after the Jan. 10 conference. )
Jacob v. United States, 24-5032Issue:
Whether the Sixth Amendment reserves to juries the determination of any fact underlying a criminal restitution order.
(Relisted after the Jan. 10 conference. )
Bowe v. United States, 24-5438Issues:
(1) Whether 28 U.S.C. SS 2244(b), paragraph 1, applies to a claim made in a second or subsequent motion to vacate pursuant to 28 U.S.C. SS 2255, (2) Whether 28 U.S.C. SS 2244(b),(3)(E) denies this Court certiorari authority over the denial or grant of an authorization to file a second or subsequent motion to vacate pursuant to 28 U.S.C. SS 2255.
(Relisted after the Jan. 10 conference. )
Returning RelistsAndrew v. White, 23-6573
Issues
: (1) Whether clearly established federal law as determined by this court forbids the prosecution’s use of a woman’s plainly irrelevant sexual history, gender presentation, and role as a mother and wife to assess guilt and punishment; and (2) whether this court should summarily reverse in light of cumulative effect of the errors in this case at guilt and sentencing, including the introduction of a custodial statement made without the warnings required by Miranda v. Arizona.
(Rescheduled before the March 28, April 5, April 12, April 19, April 26, May 9, May 16, May 23, May 30, June 6, June 13, June 20, and July 1 conferences; relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15, Nov. 22, Dec. 6, Dec. 13 and Jan. 10 conferences. )Turco v. City of Englewood, New Jersey, 23-1189
Issues
: (1) Whether the City of Englewood’s speech-free buffer zones, including zones outside an abortion clinic, violate the First Amendment; and (2) whether the court should overrule Hill v. Colorado.
(Relisted after the Nov. 15, Nov. 22, Dec. 6, Dec. 13 and Jan. 10 conferences. )Coalition Life v. City of Carbondale, Illinois, 24-57
Issue:
Whether this Court should overrule Hill v. Colorado.
(Relisted after the Nov. 15, Nov. 22, Dec. 6, Dec. 13 and Jan. 10 conferences. )Carter v. United States, 23-1281
Issues:
(1) Whether Feres v. United States should be limited not to bar tort claims brought by service members alleging medical malpractice who were under no military orders, not engaged in any military mission, and whose military status was retroactively altered from inactive to active duty post medical malpractice; and (2) whether the Feres doctrine conflicts with the plain language of the Federal Tort Claims Act and should thus be clarified, limited, or overruled.
(Relisted after the Dec. 6, Dec. 13 and Jan. 10 conferences. )Apache Stronghold v. United States, 24-291
Issue
: Whether the government “substantially burdens” religious exercise under the Religious Freedom Restoration Act, or must satisfy heightened scrutiny under the free exercise clause of the First Amendment, when it singles out a sacred site for complete physical destruction, ending specific religious rituals forever.
(Relisted after the Dec. 6, Dec. 13 and Jan. 10 conferences. )
