Court green-lights execution of Missouri man who presented evidence of racist prosecutor

Court green-lights execution of Missouri man who presented evidence of racist prosecutor


For the second time in less than a week, the Supreme Court declined to block the execution of Kevin Johnson, paving the way for Missouri to carry out his lethal injection on Tuesday night.

Johnson, who is Black, argued in his final appeal that his execution should be put on hold in light of recent findings from a special prosecutor that Johnson’s original prosecutor was routinely biased against Black defendants.

Justices Sonia Sotomayor and Ketanji Brown Jackson dissented from the court’s brief order allowing the execution to proceed.

Johnson was convicted and received the death penalty for the 2005 shooting death of William McEntee, a police officer. Johnson, who is Black, came to the Supreme Court on Nov. 10, arguing that his death sentence was tainted by racial bias and that his execution would violate the Eighth Amendment’s ban on cruel and unusual punishment. On Nov. 23, the justices declined to postpone his execution to give him time to pursue those arguments.

Johnson returned to the Supreme Court on Tuesday morning, once again asking the justices to stay his execution. He said a stay was necessary to give the Missouri Supreme Court time to review his claims that the prosecutor in his case had discriminated against Black defendants in deciding whether to seek the death penalty and also “routinely discriminated in jury selection.”

Last month, a state trial court appointed a special prosecutor to investigate the original prosecutor’s alleged racism. The special prosecutor found “clear” evidence that the original prosecutor “consistently made race-influenced decisions in his handling of capital homicides.” Based on those findings, the special prosecutor filed a motion to invalidate Johnson’s death sentence.

Calling Johnson’s new stay request a “transparent refusal to accept moral responsibility for his crimes,” Missouri urged the court to allow Johnson’s execution to go ahead as scheduled. The state dismissed Johnson’s claims of racial bias as “completely baseless.” But in any event, it continued, a Missouri Supreme Court decision denying Johnson’s plea to stay his execution rested on its conclusion that Johnson’s claims were not covered by a new state law that allows prosecutors to make post-conviction motions on behalf of inmates. Therefore, the state concluded, the Missouri Supreme Court’s decision was based on an independent state-law ground, which bars the U.S. Supreme Court from reviewing it.

This article was originally published at Howe on the Court .

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In major immigration case, both sides look to academia to untangle three knotty questions

In major immigration case, both sides look to academia to untangle three knotty questions


Can the Biden administration issue guidelines setting priorities in the enforcement of immigration law? Do states have standing to challenge these guidelines? And if the guidelines are unlawful, does the Administrative Procedure Act give lower courts the power to vacate them — a universal remedy that goes beyond the parties to the case? These are the three questions before the Supreme Court in United States v. Texas , set to be argued on Nov. 29. Legal scholars have addressed all three issues, and their work is prominently cited in the briefing on both sides.

In her book Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press, 2015), Professor Shoba Sivaprasad Wadhia of Penn State Law observes that discretion in immigration enforcement is unavoidable in a system that lacks the resources to remove more than a few percent of the nation’s 11 million undocumented immigrants. The debate over how that discretion should be exercised has created a sharp policy divide between the Obama and Biden administrations, on the one hand, and that of former President Donald Trump on the other.

In 2011, John Morton, then the director of Immigration and Customs Enforcement, issued a series of memos setting enforcement priorities. Morton explained that his agency “only has resources to remove approximately 400,000 aliens per year, less than 4 percent of the estimated illegal alien population in the United States.” Accordingly, he declared that ICE would prioritize apprehension and removal of certain categories of undocumented immigrants, such as those who had committed crimes or were recent arrivals. In contrast, undocumented immigrants without criminal records, who had lived in the United States for many years, and who had U.S. citizen family members were low priorities for removal. 

The “Morton Memos” were often ignored by ICE officers , and in any case did not give legal protection from removal to those undocumented immigrants categorized as lower priorities. But if nothing else, they set the tone. 

That tone changed abruptly when Trump took office in 2017. Within the first week of his administration, Trump replaced the Morton Memos with an executive order directing immigration officials “to ensure the faithful execution of the immigration laws of the United States against all removable aliens.” The goal, Trump explained, was to end “exempt[ions] [for] classes or categories of removable aliens from potential enforcement.” To be sure, the Trump administration also lacked the resources to deport the vast majority of undocumented immigrants. But the new executive order sent the message that no one in the United States without status was safe from removal.

The Trump administration followed an “attrition through enforcement” approach proposed in 2008 by Kris Kobach, who was at that time a professor at the University of Missouri-Kansas City School of Law and later became Kansas’ secretary of state. (Earlier this month, he was elected as Kansas’ incoming attorney general.) Acknowledging the limited resources to remove undocumented immigrants, Kobach advocated for policies that encouraged self-deportation.  Accordingly, he opposed any categorical use of prosecutorial discretion, advocating instead for enforcement policies that would leave all undocumented immigrants in fear that they were imminently removable.

Now, in United States v. Texas, Texas and Louisiana have asked the court to weigh in on this debate. At issue is whether the Immigration and Nationality Act permits the Biden administration to adopt guidelines prioritizing removal of certain categories of undocumented immigrants over others, just as Obama did before him. These states also argue that the guidelines violate the Administrative Procedure Act.

The case is perhaps even more important for its challenge to states’ standing to sue the federal government. A glance at the court’s docket in recent years reveals the rapid rise in state challenges to executive branch changes in policy, with red states taking the lead under Presidents Obama and Biden and blue states doing so during the Trump administration. In April of 2022, Texas issued a press release celebrating its 27th lawsuit against the Biden administration (the number is certainly higher by now). Likewise, California filed 122 lawsuits against the Trump administration during Trump’s four years as president, averaging one new lawsuit every 12 days. 

Many of these cases challenged executive branch changes to immigration policy. In United States v. Texas, Texas and Louisiana argue that the new enforcement priorities will increase the number of undocumented immigrants in their states, and so increase their incarceration, education, and health care costs. They claim these higher costs are a cognizable injury that gives them standing to sue. 

In its brief, the United States cites University of Virginia Law Professors Ann Woolhandler and Michael Collins’ recent article, Reining in State Standing , which argues in favor of a “return to [states’] traditional disfavored status as plaintiffs.” Under the tripartite requirements for standing, a plaintiff must show an “injury in fact” that is traceable to the challenged action and redressable by a court. But that standard gives states enormous leeway to claim injury on behalf of themselves as sovereigns or to their parens patriae interests (that is, the interests of their citizens), because almost any change to federal policy will have a fiscal impact on a state and its residents. Woolhandler and Collins propose that state standing to sue should be limited to cases in which states are “the direct regulatory objects of federal statutes and regulations,” which would fit more comfortably with states’ traditionally limited role as litigants before federal courts.

Finally, the Supreme Court is asked to decide the scope of the permissible remedy if the guidelines violate federal law. Over the past few years, courts and commentators have debated the power of lower federal courts to enter universal injunctions — that is, injunctions that bar defendants from enforcing a challenged law against anyone, not just the plaintiffs. United States v. Texas raises an offshoot of this question: whether a court’s power “to hold unlawful and set aside agency action” under Section 706(2) of the APA permits courts to vacate agency action such that it cannot be applied to anyone. 

The United States cites a recent article by Professor John Harrison of University of Virginia Law arguing that Section 706(2) does not give courts authority to issue universal remedies, but rather only allows courts to decline to enforce unlawful agency action in cases before them. Texas and Louisiana rely on University of San Diego Law Professor Mila Sohoni’s article, “The Power to Vacate a Rule,” asserting that Section 706(2) authorizes (but does not require) vacatur, and citing longstanding precedent in the U.S. Court of Appeals for the District of Columbia Circuit and other lower federal courts supporting that position. 

As Sohoni puts it, perhaps the most “astonishing” aspect of the case is that the scope of Section 706(2)’s remedy remains uncertain nearly 80 years after that statute’s enactment. That uncertainty will likely be resolved by the court’s decision this term.

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Justices delve into a trio of thorny issues in states’ challenge to federal immigration policy

Justices delve into a trio of thorny issues in states’ challenge to federal immigration policy


The Supreme Court heard oral argument on Tuesday in a challenge to a Biden administration policy that prioritizes certain groups of unauthorized immigrants for arrest and deportation. Although some justices questioned the legality of the policy, there were also questions about whether the states challenging the policy could bring their lawsuit at all, and whether a federal district judge had the power to set aside the policy. After nearly two-and-a-half hours of debate, it was difficult to predict precisely how the justices will resolve the case, which could have significant implications not only for the the executive branch’s ability to set immigration policy but also for states’ ability to sue the federal government when they disagree with its actions.

The policy at the center of the case is set forth in a September 2021 memorandum by Secretary of Homeland Security Alejandro Mayorkas. The memorandum explains that because the Department of Homeland Security does not have the resources to apprehend and deport all of the more than 11 million noncitizens who could be subject to deportation, immigration officials should prioritize the apprehension and deportation of three groups of noncitizens: suspected terrorists, people who have committed crimes, and those caught recently at the border.

Texas and Louisiana went to federal court in Texas to challenge the policy. U.S. District Judge Drew Tipton agreed with the states that the policy violates federal law and vacated it nationwide.

When the Supreme Court decided to take up the case, it directed the parties to address three questions. The first was whether the states had a legal right to bring their lawsuit – a concept known as standing. Texas Solicitor General Judd Stone told the justices on Tuesday that the states have standing because of the costs that the policy inflicts on them, for everything from social services to incarceration for noncitizens who commit new crimes.

Sketch of a balding man arguing at the podium.

Judd Stone, solicitor general of Texas, argues for the state. (William Hennessy)

Justice Ketanji Brown Jackson suggested that any harm that the states suffered was the result of decisions they made, rather than the policy itself. If the federal government has decided not to detain some noncitizens with a criminal history because it doesn’t believe that they are a risk, she said, but Texas nonetheless opts to detain them, Texas has chosen to incur a self-inflicted injury.

Justice Elena Kagan was perhaps the strongest proponent of the idea that the states do not have standing. She told Stone that, under his theory, states could challenge virtually all immigration policies – “not to mention all the other policies in the world” – even if they cost the states only one dollar. Immigration policy, she said, is supposed to be the “zenith” of federal power, but instead Stone’s theory would allow states to bring immigration policy to a “dead halt.”

U.S. Solicitor General Elizabeth Prelogar, representing the Biden administration, echoed Kagan’s sentiments. She too stressed the “consequences of the district court’s very broad” conception of standing: Any state can challenge any decision by the federal government, and if it can persuade just one federal district judge, he can issue an order blocking the policy nationwide. That in turn, she reminded the justices, will lead the federal government to come to the Supreme Court, asking it to intervene on an emergency basis – without oral argument or the benefit of several decisions by the lower courts exploring the question. Such a process, she said, is “bad for the executive branch,” “bad for the American public,” and “bad for” federal courts.

Chief Justice John Roberts pressed Prelogar to clarify the scope of the Biden administration’s rule. Under that rule, he asked, states would never have standing to challenge immigration enforcement? When Prelogar responded that they would not, Roberts reminded her of the court’s recent decision in Biden v. Texas , in which Texas and Missouri challenged the Biden administration’s decision to end the Trump administration’s controversial “remain in Mexico” policy. “I would have thought you’d have a little more concern about an opinion of ours that is four months old,” Roberts admonished Prelogar.

Justice Samuel Alito also was skeptical about the Biden administration’s rule. When Prelogar suggested that an indirect injury could be the basis for standing for other plaintiffs, but not for the states, Alito characterized that suggestion as “a rule of special hostility” to states.

Justice Brett Kavanaugh also seemed inclined to hold that the states would have standing to challenge the policy. He peppered Prelogar with a series of questions about whether, in the government’s view, anyone could challenge the decision by a new presidential administration not to enforce labor or environmental laws that were already on the books. When Prelogar answered that no one could challenge those decisions in court, but that the administration could still face political pushback, Kavanaugh was unconvinced. Congress enacted the federal immigration laws at the center of this case, he told Prelogar, because the existing laws were not being enforced. It would be nonsensical, he suggested, if no one had standing to challenge the laws.

The second question before the court focused on the federal immigration laws themselves, and whether they require the federal government to detain noncitizens who have committed certain crimes after their release from prison and to keep in custody noncitizens who are subject to final deportation orders. The justices spent relatively little time on this question, but here too they were divided. Alito saw one problem with the Biden administration’s policy: Although Congress outlined its own priorities for federal immigration law, including a requirement to detain noncitizens who have been convicted of serious crimes, the policy does not follow those priorities. Instead, he said, it directs immigration officials to make a case-by-case determination whether someone with a criminal history should be detained.

Roberts attempted to grapple with the problem at the center of the policy: The government’s inability to apprehend, detain, and deport all of the 11 million noncitizens in the United States who could be subject to deportation. He told Prelogar, on the one hand, that Congress’ use of the word “shall” in the immigration laws at issue in this case imposes a mandatory duty to detain or deport the noncitizens covered by the law. “It’s our job to say what the law is,” Roberts insisted, and then “Congress and the executive branch need to figure out a way to comply.”

But Roberts took a different tack with Stone, telling him that “it is impossible” for the executive branch to comply with federal immigration laws in the way that the states would require. If we think it would be very difficult to enforce the law as you interpret it, Roberts asked, shouldn’t we consider that difficulty in deciding whether “shall” actually means “shall”?

Kavanaugh echoed Roberts’ concerns about the feasibility of the states’ argument. “If you prevail here,” he asked Stone, “what will happen?” Kavanaugh suggested that, because of the lack of resources, he was “not sure much will change.”

Stone pushed back, countering that the Department of Homeland Security is not currently using all of the resources that it has available to detain and deport noncitizens. But during her rebuttal, Prelogar reiterated that “it is impossible for DHS to comply” with the requirements that the states would have the court impose. If immigration officials have no discretion in enforcing the law, she cautioned, they will have to take all deportable noncitizens whom they find into custody, which will in turn use up the resources that should be targeted at real security threats. It’s a “senseless way to run an immigration system,” Prelogar concluded.

The third question before the justices was whether Tipton had the power to block the Biden administration from implementing the policy nationwide. Stone pointed to the federal law governing administrative agencies, arguing that it clearly gives courts the power to “set aside” agency actions that do not comply with federal law.

Prelogar, on the other hand, told the justices that the provision authorizing courts to “set aside” agency actions only allows courts to disregard the policy in the case before them; it does not give the district court the power to invalidate the policy altogether. That argument met with strong resistance from three justices who came to the Supreme Court from the U.S. Court of Appeals for the District of Columbia Circuit, which frequently fields challenges to agency action.

Roberts, who spent just over two years on the D.C. Circuit, told Prelogar that the Biden administration’s position on this point was “very radical.” On the D.C. Circuit, he joked, judges often vacated agency action “five times before breakfast.” When Prelogar countered that the lower courts had misinterpreted the statute, Roberts let out a surprised “wow.”

Kavanaugh, who spent (as he noted) 12 years on the D.C. Circuit, strongly resisted Prelogar’s suggestion that lower courts had overlooked the text or history of federal administrative law. Kavanaugh pointed to several well-respected judges, both conservative and liberal, with whom he worked on the D.C. Circuit, telling Prelogar that those judges “paid a lot of attention” to the text and history of the law. Like Roberts, Kavanaugh stressed that the government’s position would be a “pretty radical rewrite” of current law. “Set aside” means to “set aside” something, Kavanaugh said, so that the rule is no longer in place.

Jackson, who spent just over a year on the D.C. Circuit, sided with Roberts and Kavanaugh. She told Prelogar that she saw a “conceptual problem” with the administration’s argument. A claim under federal administrative law, she explained, would be based on the contention that the federal agency has failed to follow the proper procedures. It would be a “disconnect to say,” she told Prelogar, that if a court agreed with a challenger that the agency had not followed proper procedures in adopting a rule, the rule wouldn’t apply to the challenger but the agency could still apply that rule to others.

But other justices were more receptive to the government’s position. Justice Neil Gorsuch suggested that vacating the policy was essentially the same thing as an injunction barred by federal immigration law. Either way, he said, the government will enforce federal immigration laws differently. Gorsuch also noted that the provision allowing courts to “set aside” agency action appears in a statute governing the scope of review for federal courts, rather than the provision governing remedies. If a federal court has the power to invalidate agency action under the “set aside” provision, he posited, it would be a “monster swallowing all of the other remedies.”

And Alito complained that although the question raised by the Biden administration appeared to him to “be a pretty big issue,” the administration and the states had only addressed it in a few pages in their briefs in the Supreme Court. How, Alito queried, should the court determine which interpretation is the correct one? 

Alito’s question seemed to raise at least the possibility that the court could call for more briefing on the third question in the case. Either way, a decision is expected sometime next year.

This article was originally published at Howe on the Court .

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Court declines to block execution of Missouri man who says his conviction was tainted by racial bias

Court declines to block execution of Missouri man who says his conviction was tainted by racial bias


The Supreme Court on Wednesday declined to block the execution of Kevin Johnson, who is scheduled to die by lethal injection in Missouri on Nov. 29.

There were no recorded dissents from the court’s brief order .

Johnson was convicted and received the death penalty for the 2005 shooting death of William McEntee, a police officer. Johnson came to the Supreme Court on Nov. 10, asking the justices to put his execution on hold to give the justices time to consider his challenges to the constitutionality of his conviction and sentence. At Johnson’s first trial, two white jurors who made racist statements refused to join the rest of the jury in voting to convict Johnson – who is Black – of second-degree murder, which would not have carried the death penalty. Johnson argued that his second trial, at which he was convicted of first-degree murder and sentenced to death, did not fix the constitutional violation at his first trial.

Johnson also argued that he should not be executed because he was only 19 at the time of the crime and suffered from severe mental illness. The Supreme Court held in Roper v. Simmons that the execution of defendants who were under the age of 18 when they committed their crimes violates the 8th Amendment’s ban on cruel and unusual punishment. Johnson urged the justices to extend that rule to defendants under the age of 21, contending that (among other things) scientists now believe that the human brain is not fully mature until after 21.

The state countered that Johnson’s first trial was the “‘classic example’ of a properly declared mistrial.” Any problems in that trial, the state contended, were remedied with his second trial. Nothing has happened since Roper, the state continued, to require an expansion of that decision to cover defendants who were under the age of 21 at the time of their crime. And in any event, the state concluded, Johnson waited too long to bring his claims.

This article was originally published at Howe on the Court .

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A sharp business deal or a federal crime? Justices will review what counts as fraud in government contracting.

A sharp business deal or a federal crime? Justices will review what counts as fraud in government contracting.


Over the past 40 years, the Supreme Court has repeatedly expressed concern about the breadth of federal criminal prosecutions under the mail and wire fraud laws. The court’s decisions have narrowed the scope of federal power, particularly in recognizing the right of state and local governments to operate without undue federal influence. In Ciminelli v. United States , which will be argued on Monday, the court returns to similar concerns with a New York bid-rigging case. Did a government contractor take criminal advantage of his contacts within state government?

In 2012, New York Gov. Andrew Cuomo launched a $1 billion campaign to develop the greater Buffalo area in project “Buffalo Billion.” The Fort Schuyler Management Corporation, a non-profit entity affiliated with the state university system, was in charge of allocating the Buffalo Billion funds. Fort Schuyler’s board of directors would eventually award a $750 million development contract to a Buffalo firm led by Louis Ciminelli.

Unbeknownst to the Fort Schuyler board, Ciminelli had been working with state insiders, such as Alain Kaloyeros, to shape the Buffalo Billion allocation process in his favor. Kaloyeros implemented an unusual proposal process for Fort Schuyler. Rather than having firms bid for specific projects, he instituted a proposal process that allowed firms to bid for becoming a “strategic development partner.” A strategic development partner would be first in line to negotiate with Fort Schuyler, but becoming a partner did not mean that the partner would necessarily be selected for any project. Kaloyeros then implemented selection criteria that favored Ciminelli’s firm, such as a requirement that the firm be based in Buffalo and that the firm use software that Ciminelli already used. After the board selected Ciminelli’s firm as a strategic development partner, it subsequently negotiated the $750 million contract.

The initial choice to prosecute Ciminelli for wire fraud presented several issues. First, wire fraud typically requires proving that a defendant intended to deceive and deprive the victim of money or property. Here, the alleged fraud was not a straightforward case of theft: Ciminelli did not personally run off with the $750 million. Construction of the development project did occur. Rather, the prosecutors noted that Ciminelli’s firm received significant compensation for its management role, comparing Ciminelli’s management fees to the lower fees charged by competitors. Nonetheless, the trial court did not admit evidence discussing the quality of Ciminelli’s development management services, thus precluding the jury from considering whether the increased quality of Ciminelli’s management work might have justified the higher compensation.

Federal prosecutors have another option in corruption cases to prove fraud: the deprivation of honest services. Twelve years ago, in Skilling v. United States , the Supreme Court held that fraudsters could criminally deprive victims of not only money or property, but also the intangible right to honest services. Citizens have the right to honest services from civil servants, and an unscrupulous government employee might deprive citizens of those honest services. Under this theory, prosecutors do not have to show how the government lost money from the unscrupulous behavior. Prosecutors rather must show that the defendant participated in illegal bribes or kickbacks. Demonstrating that the defendant had an undisclosed conflict of interest is insufficient to prove fraud. Here, prosecutors did not produce evidence linking Ciminelli to the payment of bribes or kickbacks.

Instead, the prosecutors discussed deprivation of a “right to control”: Ciminelli and Kaloyeros’s deception deprived the Fort Schuyler board of its right to control the Buffalo Billion funds and the associated allocation process. Fort Schuyler’s board lost its interest in a proper, competitive bid process because it did not know about Ciminelli and Kaloyeros’s arrangement. The trial court explained this right to control theory to the jury, and the jury found Ciminelli guilty of wire fraud. The U.S. Court of Appeals for the 2nd Circuit upheld Ciminelli’s conviction, and he is now asking the Supreme Court to overturn it.

Ciminelli’s argument

Ciminelli argues that the “right to control” theory of deprivation is an improper workaround against the decision in Skilling: Kaloyeros had an undisclosed conflict of interest because he was working to favor Ciminelli, but undisclosed conflicts of interest alone are insufficient to prove fraud. If prosecutors could not prove bribery or kickbacks, they had to prove that Ciminelli intended the loss of money or property. Ciminelli then argues that his actions did not deprive Fort Schuyler of any money or property. The bid-rigging only affected the first stage of the selection process: which firm would be first to negotiate with Fort Schuyler. Thus, there was no deception in the project negotiation itself. If board members were dissatisfied in their negotiations with Ciminelli regarding the $750 million project, they could have moved on to negotiate with a different firm, but they still chose to award the project to Ciminelli’s firm.

The federal government’s argument

The government argues that the jury properly found that Ciminelli intended to deceive and cause tangible economic loss to Fort Schuyler. The U.S. solicitor general notes in her brief that the jury instructions stated, “If all the Government proves is that the Defendant caused Fort Schuyler to enter into an agreement it otherwise would not have, or caused Fort Schuyler to transact with a counterparty it otherwise would not have, without proving that Fort Schuyler was thereby exposed to tangible economic harm, then the Government will not have met its burden of proof.” Thus, despite the “right to control” discussion, the government claims that the jury could have focused on the tangible economic harm of paying the higher management fees to Ciminelli’s firm.


This case has similarities with prior corruption disputes selected by the Supreme Court. It involves millions in New York state funds and thus raises federalism concerns: How much flexibility should states have in governance decisions without federal interference? The bidding process may have been unfair to Ciminelli’s competitors, but did the unfairness merit federal intervention? The harm calculation in this case is also unclear: Did Ciminelli intend to cause any loss to Fort Schuyler? There may have been a stronger case that Ciminelli wanted to cause business losses to his competitors by denying them a chance at the Buffalo Billion. Finally, because this is a criminal case, there is the specter of overcriminalization. Was Ciminelli on notice that he was committing a federal crime as opposed to utilizing sharp business practices to edge out competitors?

Deception in the government contracting process is a legitimate threat, and courts face a challenge in determining which forms of deception are serious enough to merit criminal sanctions. Some level of insincerity is expected — when a contractor makes its “best” offer, there is likely some puffery or gamesmanship involved in the negotiations. On the other hand, collusive price-fixing behavior among the contractors bidding for business is both improper and illegal. When are financial penalties sufficient to deter sketchy contractors, and when does federal prison become important in limiting bad behavior?

In Ciminelli’s case, the main wrongdoing appears to be his “sneaking to the front of the line” in the negotiation process. If the Supreme Court continues its trend of narrowing the scope of federal fraud criminalization, it can do so by eliminating the “right to control” theory of fraud. A decision that narrows or nixes that theory could reduce uncertainty among government contractors. Potential contractors would face a reduced risk of prison time when engaging in pre-negotiation talks with government insiders. Less clear is how much such a narrowing decision would benefit Ciminelli. Because the jury instructions and facts give room for having proven tangible economic harm, it is uncertain how much influence the “right to control” language had upon the jury’s decision to convict.

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Justices worry that broad reading of federal bribery law could sweep in lobbyists

Justices worry that broad reading of federal bribery law could sweep in lobbyists


The Supreme Court appears poised to reverse the conviction of a powerful New York political aide who took money in exchange for helping to facilitate a real estate development. Joseph Percoco was sentenced to six years in prison for violating a federal fraud law that makes it a crime to deprive members of the public of the intangible right to “honest services.” But justices of all ideological stripes were concerned on Monday that upholding the conviction of Percoco, who served as the manager of former Gov. Andrew Cuomo’s re-election campaign when he took the actions that led to his conviction, could have far-reaching effects for other private citizens – most notably, lobbyists.

In 2014, a developer paid Percoco $35,000 for his help to avoid having to enter into a “labor peace agreement” with local unions. Percoco urged the head of a state agency to allow the development to go forward without the need for such an agreement – which it did. A few days later, Percoco ended his job on Cuomo’s campaign and returned to his former role as a senior official in the governor’s office.

Representing Percoco, lawyer Yaakov Roth told the justices that when Percoco promoted the development he was a private citizen who did not receive a salary and “possessed no legal authority to bind the state or make decisions for it.” Although Percoco may have had influence within the state government because of his “years of public service” and his “close relationship to the Cuomo family,” that influence does not create any duty to the public and cannot be the basis for a bribery conviction, Roth said.

Instead, Roth continued, a bribery conviction requires a connection to actual power – that is, someone is taking a bribe in exchange for exercising power that he officially has or expects to have soon. The power can come by virtue of the individual’s position as a government official, Roth observed, or if he has been delegated that power as an agent of the government. And when someone has that kind of power, Roth explained, he has a duty to the public that can form the basis for a bribery conviction.

Roth faced questions about how far his proposed rule would extend. Justice Elena Kagan asked about a scenario in which a public official briefly resigns so that he can take a bribe but then returns to his job almost immediately. Under your theory, she suggested to Roth, the official couldn’t be charged under the bribery statute as long as he wasn’t in public office when he took the bribe.

But even if the justices believed that Percoco’s proposed rule might be underinclusive, they were far more concerned that the government’s proposed rule would be overinclusive, turning the proverbial “revolving door” between government service and the private sector into a pathway to prison.

Representing the federal government, Assistant to the U.S. Solicitor General Nicole Reaves told the justices that Percoco was effectively functioning as a government official when he “accepted multiple bribes” to instruct the state agency to reverse its decision that his client needed to reach a “labor peace agreement.” She outlined a three-part test to determine whether a private individual is functioning as a government official and therefore can be held liable under federal bribery laws: whether supervisors and subordinates recognize that someone is effectively operating as a government official; whether the individual has the power to command other employees to take a specific act; and whether there are other “trappings” of a government role.

But the justices were almost uniformly skeptical of the government’s argument. Chief Justice John Roberts observed that someone could meet the criteria that Reaves outlined without ever having any official responsibilities.

Kagan noted that although someone inside the government might be aware that a private citizen is functioning as a government official, someone outside the government – such as a lobbyist’s client – would not have any way to know that. And those outsiders, she emphasized, could also be prosecuted under federal public-corruption laws by paying the defendant. The government’s test, she stressed, “gives the outsider no real notice” that he could be violating the law.

Justice Neil Gorsuch asked Reaves to explain the origin of the government’s three-part test, noting that it is “certainly not in the text” of the federal bribery laws. When Reaves responded that the factors were “inherent in the nature of being a public official,” Gorsuch was unmoved, referring to “the brooding omnipresence of the law.”

Justice Samuel Alito asked Reaves to address a scenario involving “someone who is a super, super effective lobbyist”: a childhood friend and former teammate of an elected official who later worked as the official’s campaign manager.

Reaves countered that “mere influence is not enough to trigger” federal public-corruption laws, because the lobbyist wouldn’t actually be functioning as a government employee even if she had a close connection to one government official.

Gorsuch pushed back, telling Reaves that Washington, D.C., “is full of such persons” and that close advisers to presidents “are often taken quite seriously.” Many of those people, Gorsuch posited, would effectively be government officials under the government’s multi-part test “or at least they’d have to have a very long trial” to make that determination.

Justice Ketanji Brown Jackson chimed in, asking how to distinguish someone like Percoco from a lobbyist. Your test, she told Reaves, seems to “sweep in people” who “overstay their welcome” or keep in touch with former colleagues after leaving government employment.

Kagan appeared to agree. The “strongest part of your case,” she told Reaves, “is the fact that this is a guy who was a former government official” who took the action at the heart of the case while on a “hiatus” to run Cuomo’s campaign. But the government’s test, Kagan continued, doesn’t require any of those facts. Kagan asked Reaves for an example of “someone who is not a former official and is not a future official” who could still meet the government’s three-part test. But, she cautioned, it doesn’t seem possible without “making it look like the guy’s just a really, really good lobbyist.”

Justice Sonia Sotomayor wondered aloud why the government needed to rely on a “functional government official” theory at all. Instead, she asked, why can’t the test be whether, as Roth suggested, the private citizen is acting as an agent of the government?

Justice Clarence Thomas had a slightly different objection. He told Reaves that he was “curious” about New York’s failure to prosecute Percoco and deemed it “rather odd” that “this broad federal prosecution is taking place” under “what some have termed a catch-all provision.” In truth, he concluded, it seemed as if the federal government was “using a federal law to impose ethical standards on state activity.”

During his time at the lectern, Roth urged the justices to reverse the decision by the U.S. Court of Appeals for the 2nd Circuit upholding Percoco’s conviction on honest-services fraud and direct the lower courts to acquit him. Although the justices seemed inclined to do so, a decision in the case is not expected until sometime next year.

This article was originally published at Howe on the Court .

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In New York bid-rigging case, justices are dubious of the “right to control” theory of fraud

In New York bid-rigging case, justices are dubious of the “right to control” theory of fraud


The Supreme Court heard oral argument on Monday in the case of Louis Ciminelli , an executive convicted of federal wire fraud in connection with bid-rigging to secure a $750 million New York state contract. The trial court informed a federal jury regarding a “right to control” theory of fraud, and the jury convicted Ciminelli. At argument, Justice Neil Gorsuch remarked at the “radical agreement” among all that the right-to-control theory was flawed, but there was less consensus as to the proper judicial remedy.

In 2012, New York Gov. Andrew Cuomo launched a $1 billion campaign to develop the greater Buffalo area in project “Buffalo Billion.” Ciminelli secretly worked with state insiders to ensure that his firm would be formally selected first to negotiate for Buffalo Billion projects. The negotiations led to the award of a successful $750 million development project. Federal prosecutors charged Ciminelli with wire fraud. Unlike traditional wire fraud charges, in which prosecutors prove how fraudsters deprive victims of their money or property, here prosecutors discussed a “right to control” theory of loss: The state had the right to control its funds and thus to administer a fair and honest bidding process. The prosecutors claimed that Ciminelli deprived the state of potentially valuable information in making the decision to award the $750 million contract. The potentially valuable information was his secret involvement with state insiders.

The justices agreed that the right-to-control theory was a problem. At a minimum, the theory created confusion as to the elements of the fraud. Justice Elena Kagan expressed surprise that prosecutors even raised such a theory at trial, remarking that it seemed more straightforward to discuss the concrete value of the $750 million contract rather than the amorphous value of Ciminelli’s secret information. Deputy Solicitor General Eric Feigin, perhaps in a moment of candor, admitted that the right-to-control theory may have made wire fraud easier to prove against Ciminelli, but he subsequently clarified that the theory may have been easier to explain to a jury given judicial precedent in the 2nd Circuit.

Despite their concerns with the problematic right-to-control theory, the justices did not signal approval of Ciminelli’s conduct. Feigin described Ciminelli’s fraud as an example of “pedigree fraud,” such as a person claiming a veteran’s preference in a government contracting bid when the person is not, in fact, an eligible veteran. Justice Samuel Alito raised a parallel nanny hypothetical: Assume parents contract with an agency to hire a nanny, and the agency agrees to conduct a criminal background check on all of its nannies. The parents hire a nanny and the nanny is decent, but they find out the agency never conducted the criminal background check. Alito asked Michael Dreeben, arguing for Ciminelli, why this deception should not count as wire fraud.

Alito’s question underscores the broader question: What are the appropriate limits to the federal wire fraud statute? Justice Amy Coney Barrett, for example, suggested that the right-to-control theory was confusing because it improperly conflated the elements of materiality and property. Under a clearer analysis, prosecutors would have to prove that Ciminelli deprived his victim of property through material deception. The property was the $750 million contract, and the material deception was the nondisclosure of his use of state insiders to ensure his company could be the first to negotiate. A jury would have to decide if that nondisclosure would constitute a material deception, as opposed to a minor deception that did not justify criminal penalties.

The justices did not appear to coalesce upon a single, unified guideline to restrain the scope of the wire fraud statute. The other remaining issue, also without clear resolution, was the personal outcome for Ciminelli. Justice Ketanji Brown Jackson expressed her concern, asking what would happen if the court, per the government’s request, issued a limited opinion that simply highlighted the problematic right-to-control theory: Would the government seek to uphold Ciminelli’s conviction without retrial? Justice Sonia Sotomayor asked a series of questions digging into the specifics of the jury instructions. How much of a problem was the discussion of right-to-control to the jurors, and should the court be deferential to the jury’s decision to convict Ciminelli despite the confusing right-to-control language?

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In U.S. v. Texas, broad questions over immigration enforcement and states’ ability to challenge federal policies

The Supreme Court will hear oral argument on Tuesday in a dispute over the Biden administration’s authority to set immigration policy. Texas and Louisiana are challenging a federal policy that prioritizes certain groups of unauthorized immigrants for arrest and deportation, arguing that it violates federal law. But the Biden administration and its supporters counter that a ruling for the states would have sweeping implications – not only for immigration policy but also for states’ ability to sue the federal government when they disagree with its actions.

The policy at the heart of United States v. Texas is outlined in a September 2021 memorandum by Secretary of Homeland Security Alejandro Mayorkas on the federal government’s priorities for immigration enforcement. Explaining that there are over 11 million noncitizens currently in the United States who could be subject to deportation, but that the Department of Homeland Security does not have the resources to apprehend and deport all of them, the memorandum instructed immigration officials to prioritize the apprehension and deportation of three groups of noncitizens: suspected terrorists, people who have committed crimes, and those caught recently at the border. Mayorkas’ memo resembles immigration-enforcement policies enacted under President Barack Obama and other prior administrations, though not Donald Trump, who sought to limit the role of discretion in immigration enforcement.

Texas and Louisiana went to federal court in Texas to challenge the Biden administration’s policy, arguing that federal law requires the government to detain and deport many more noncitizens than those identified by Mayorkas as high prioritizes. The federal government, the states argued, does not have the authority to prioritize some unauthorized immigrants for deportation while downplaying others. U.S. District Judge Drew Tipton agreed, and he vacated the policy nationwide in June. The U.S. Court of Appeals for the 5th Circuit declined to put Tipton’s ruling on hold while the government appealed.

The Biden administration came to the Supreme Court in July, asking the justices to freeze Tipton’s order. By a vote of 5-4, the justices left Tipton’s order in place , but they also agreed to take up the challenge and hear oral argument without waiting for the court of appeals to weigh in.

The justices directed the Biden administration and the states to address three specific questions. The first is whether the states have a right to bring their lawsuit at all – a concept known as legal standing. The Biden administration maintains that they do not, stressing that states can sue the United States only if they are directly injured by the federal government. But Texas and Louisiana, U.S. Solicitor General Elizabeth Prelogar writes, have argued only that the presence of additional noncitizens in their states may cost them more – for example, by requiring them to shoulder the costs of keeping noncitizens in prison or by providing them with public benefits. And courts have never recognized these kinds of indirect costs as creating a right to sue, the administration says. If this lawsuit is allowed to go forward, the administration warns, it will mean that any state could “sue the federal government about virtually any policy.”

In a “friend of the court” brief supporting the Biden administration , law professor Stephen Vladeck accuses Texas of engaging in – both in this dispute and in other lawsuits against the Biden administration – “a deliberate strategy of judge shopping.” Texas has filed its cases in courthouses where it is virtually guaranteed to draw Republican-appointed judges – a strategy, Vladeck says, demonstrating that the states are “engaged in nothing more than a campaign of generalized grievances against a political opponent.”

Texas and Louisiana insist that they have a right to bring their lawsuit because the policy inflicts “real, particularized, and concrete harms” on them. As Tipton concluded, they write, by increasing the number of unauthorized immigrants with criminal convictions and final deportation orders who are released into the United States, the policy increases the costs to the states for everything from health care and education to incarceration.

The second question in the case is whether the policy is consistent with federal immigration law and the federal law governing administrative agencies. The states contend that Congress adopted federal immigration laws requiring the arrest and detention of noncitizens in the wake of a “wholesale failure” by federal immigration authorities “to deal with increasing rates of criminal activity” by noncitizens. In those laws, the states say, Congress provided that the federal government “shall take into custody any alien who” has committed certain crimes “when the alien is released” from criminal custody, and that when there is a final deportation order, the federal government “shall remove” the noncitizen within 90 days, and that the noncitizen shall remain in custody during that time. The use of “shall” means that these provisions are mandatory, the states argue, but Mayorkas’ memo makes them discretionary by allowing immigration officials to make a case-by-case decision about whether to detain a noncitizen.

The Biden administration tells the justices that federal immigration law gives immigration officials “broad discretion” to deal with people who are not authorized to be in the United States. Officials can, for example, decline to begin deportation proceedings, end such proceedings after they are initiated, or decline to carry out a deportation order after it has been entered. And although Tipton and the states suggest that Congress has created a mandatory duty to apprehend noncitizens who have committed crimes and those who have final deportation orders, the Biden administration insists that Congress’ use of the word “shall” nonetheless “does not displace the Executive’s traditional discretion to apprehend individuals not yet in its custody.” But in any event, the Biden administration continues, such a reading of federal immigration law would be “both unprecedented and unfeasible” when Congress has not given it the resources to apprehend and detain everyone who could be deported.

The states push back against the argument that the federal government simply lacks the resources to detain everyone who might be covered by the provisions that the states cite. When it initially enacted the laws at the center of this case, the states say, Congress provided a two-year grace period for the executive branch to be able to comply with the laws, but it declined to further extend that period. And in any event, the states continue, the federal government has consistently “underutilized existing detention facilities.” Indeed, the states contend, the Biden administration has twice submitted budget requests asking Congress “to cut those very resources by 26%.”

The third question in the case is whether Tipton had the power to set aside the policy. The Biden administration points to a provision of federal immigration law providing that, as a general rule, only the Supreme Court can “enjoin or restrain the operation” of immigration law. Although the federal law governing administrative agencies may allow the district court to disregard the policy in the case before it, that does not give the district court the power to vacate the policy and prevent the Biden administration from implementing it throughout the United States. At the very least, the administration continues, only the Supreme Court can set aside the policy, because federal immigration law reflects “Congress’s considered judgment that only this Court should have the authority to grant programmatic relief against the Executive Branch’s implementation of the INA.”

The states counter that the federal law governing administrative agencies clearly gives courts the power to “set aside” agency actions that do not comply with federal law. The only way that a court can “set aside” agency action, the states say, is by vacating it. By contrast, the states observe, the federal law on which the Biden administration relies only bars federal courts from entering an injunction against the federal government. But an injunction is different from vacating an agency action, the states observe: An injunction requires a party to a case either to do something or to refrain from doing something, while vacating an agency action does not require anyone to do anything. The government’s contrary interpretation, the states contend, “would likely insulate virtually every rule related to the INA from judicial review.” But at a minimum, the Supreme Court – which has the power to do so – should enter an injunction or vacate the policy, the states argue.

Eighteen states with Republican attorneys general, led by Arizona, filed a “friend of the court” brief supporting Texas and Louisiana . Like Texas and Louisiana, the states stress that the federal government’s immigration policies “impose significant costs on the States, including billions of dollars in new expenses relating to law enforcement, education, and healthcare programs.” And they launch a broader attack on U.S. immigration policy generally, contending that it has created an “unmitigated disaster” at the U.S.-Mexico border.

Sixteen blue states and the District of Columbia are supporting the Biden administration , arguing that Texas and Louisiana’s position would undermine principles of prosecutorial discretion and threaten the safety of immigrant communities. And a group of local governments, led by Los Angeles, warn that a ruling for Texas and Louisiana will have significant and serious ripple effects throughout the country . If the Supreme Court eliminates the federal government’s discretion in immigration enforcement, they tell the justices, the government will instead be required “to take a more aggressive, inconsistent, poorly prioritized approach resulting in arbitrary removals.” For example, they write, “a working mother with no criminal history” will be “just as great a removal priority as a would-be terrorist or violent felon.” And that approach, the local governments caution, will prompt immigrants, worried about the prospect of deportation, to “avoid contact with local law enforcement or healthcare services,” which will in turn harm the public more broadly.

This article was originally published at Howe on the Court .

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The morning read for Tuesday, Nov. 29

The morning read for Tuesday, Nov. 29


Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. To suggest a piece for us to consider, email us at

Here’s the Tuesday morning read:

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A squabble over a forest road may pave the way for further narrowing of “jurisdictional” timing rules

A squabble over a forest road may pave the way for further narrowing of “jurisdictional” timing rules


Wednesday’s argument in Wilkins v. United States is next in a protracted line of cases in which the court has considered whether statutory bars to causes of action are firm “jurisdictional” rules or instead more forgiving claims-processing rules. Generally speaking, that line of cases has limited the circumstances in which statutes that impose timing requirements on federal causes of action are regarded as jurisdictional – which means that they automatically and categorically keep a case out of court. The trend appears largely, if not entirely, in cases against the United States. At a big-picture level, these cases limit the ability of the federal government to use these “technicalities” to avoid scrutiny in litigation of its activities.

Why, you might ask, should this matter? In most cases, perhaps, it would not. If a statute of limitations requires that an action be filed within 12 years (like the statute at issue in Wilkins), then a later action usually is going to fail. But unless the provision is jurisdictional, the plaintiff at least has a chance to seek “equitable tolling,” which would allow the court to forgive the lateness of the complaint based on the particular facts of the case. Another possibility (presented here) is that the “jurisdictional” treatment of the bar would affect minor procedural details of the case. In the case at hand, Larry Wilkins and Jane Stanton complain about the use of a road that passes by their homes into the Bitterroot National Forest in Montana. Specifically, they claim that the easement under which that road passes over that land did not contemplate the general public use of the road that the Forest Service presently tolerates (or even encourages).

Wilkins and Stanton brought a complaint under the federal Quiet Title Act, a vehicle for challenging the federal government’s assertion of interests in land. The question whether the complaint was timely depends on when Wilkins and Stanton should have understood that the road would be open to the public. In most contexts, a court assessing the complaint would assume the correctness of factual allegations in the complaint and give the plaintiffs a free opportunity to develop and introduce evidence before rejecting those allegations. When the facts determine jurisdiction, though, a court (at least in the 9th Circuit) can rely freely on evidence outside the complaint and dismiss the complaint without following the normal rules for factual development. That is what happened to Wilkins and Stanton here, as the lower court ruled that the 12-year statute of limitations in the Quiet Title Act was jurisdictional and dismissed their complaint out of hand. That disposition allows Wilkins to claim that the case would come out differently if the statute of limitations was merely a claims-processing rule instead of a stark jurisdictional bar.

The briefs of the parties provide a remarkable example of ships that pass in the night . Wilkins presents a typical linear argument that the lower court’s analysis of the Quiet Title Act cannot be reconciled with the Supreme Court’s recent decisions distinguishing between jurisdictional bars and claims-processing rules. Wilkins emphasizes the court’s unanimous decision this spring in Boechler v. Commissioner rejecting a similar argument by the Internal Revenue Service. His argument has three steps. First, modern cases like Boechler require a clear statement for a statute of limitations to operate as jurisdictional. Second, the statute in this case provides no clear statement (or even an ambiguous statement) that it should be read as jurisdictional. Third, crucially, the modern cases frequently disregard earlier readings of federal statutes as reflecting an era described in Boechler as one “when the Court’s use of ‘jurisdictional’ was less than meticulous.” The government’s brief, by contrast, is devoted almost entirely to arguing that the court’s earlier cases involving the Quiet Title Act already have determined that its statute of limitations is jurisdictional. Indeed, the government does not even try to present a sustained argument that its reading of that statute would prevail under the modern cases on which Wilkins relies.

A casual observer sees a prominent red flag when the government brief relies entirely on precedent and can’t bring itself to argue that the government’s position tracks the court’s current rules of statutory interpretation. Several other features of the case mark this as a grant for the purpose of reversal. Most obvious is the triviality of the dispute; usage rights on a road in rural Montana are not typical fodder for the high court’s docket, and it is doubtful that the complaint Wilkins filed would be timely even under ordinary rules for factual development. Also, there is no serious argument of a circuit conflict; several courts of appeals have considered the question at issue here and none has treated this rule as anything other than jurisdictional.

We’ll know more on Wednesday, but my intuition is that what we’ll see then is a court preparing to reverse the government (yet again).

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