Without comment, the Supreme Court on Monday turned down the Obama administration’s request for a new hearing on the legality of the President’s ambitious immigration policy. That sets the stage for the case to move forward to a trial in a Texas federal courtroom. It likely will mean that there will be no final decision before President Obama has left office next January. Meanwhile, the policy remains on hold under lower court orders.
Issuing 71 pages of orders on the formal opening day of a new Term, the Court refused to consider a case testing the Washington pro football team’s legal right to continue using the trademarks it has long had for its name, the Redskins. Those marks have been cancelled by a federal trial judge, but the case is now moving forward in the U.S. Court of Appeals for the Fourth Circuit.
The Supreme Court simply denied review of the team’s appeal in advance of its normal route through the Circuit Court. The brief order said nothing about the legal issue in that case. Last Thursday, however, the Court agreed to rule on the constitutionality of the federal law that denies trademark protection to names or symbols that “disparage” someone; the outcome of that review could resolve the Redskins dispute.
The granted case involves a rock band that sought a trademark for its name, the SLANTS, but that was denied by the Patent and Trademark Office. The Redskins case differs in that it involved revocation of already existing trademarks, rather than an initial denial.
A special federal appeals court that handles patent and trademark cases has ruled in the rock band case that the law violates the free speech rights guaranteed by the First Amendment. If the Justices uphold that result, the Redskins’ controversial name would remain legally protected. The team could continue to use it even without trademarks, but those provide special economic and legal advantages.
Among the very long list of denials of review of new cases that had reached the Court in recent months, the Justices refused to be drawn into the ongoing controversy over whether players in big-time college sports should be paid a salary or its equivalent. The Court turned down an appeal by the National Collegiate Athletic Association, protesting a ruling that its ban on compensation for college athletes violates federal antitrust law, and a separate appeal by a group of former star athletes in football and basketball, challenging a denial of compensation beyond full tuition and fees while attending colleges. As usual, the Court gave no reason for the denials.
The NCAA has held fast for decades to the idea that actual payments to college athletes for their playing years would undermine the amateur nature that it insists college sports should have. Under the pressure of legal challenges, it agreed, however, to arrange for an athlete’s scholarship to be at the full level of all costs of attending college. That is what the athletes sought to go beyond, seeking a pay package after they graduate at $5,000 for each year they had played.
Last Thursday, before the formal start of the new Term, the Justices granted review of eight new cases. On Monday, they agreed to decide another dispute, a high-stakes feud between a number of states over which state has a legal right to take ownership of millions of dollars of unclaimed property. In the two newly granted cases, the property is an unclaimed check-like instrument that works as if it were a money order or traveler’s check, but is issued mainly by a bank or other financial institution in larger amounts, compared to the small amounts in which retail stores and others issue traveler’s checks.
Delaware was given permission to sue two states, one of those two — Wisconsin — was allowed to sue Delaware, and 21 other states were told they could sue Delaware. Delaware claims ownership of all of the property at issue.
These are what are called “original” cases because the lawsuits in each were filed directly in the Supreme Court under a special appeal provision in the Constitution’s Article III. Those cases do not have to start in lower courts. Customarily, the Court, rather than hearing witnesses and examining exhibits as if it were a trial court, selects a lawyer to act as a “special master” to conduct a trial-like proceeding, and then recommend a decision. Ordinarily, such cases play out over several years.
The order issued by the Court Monday gave the states targeted by the lawsuits 30 days to file their answers. The order said nothing further about the process that will then unfold.
The Court’s refusal on Monday to reconsider its 4-to-4 decision last June on the Obama administration plan to defer the deportation of upwards of four million undocumented immigrants was not a surprise, for two reasons: the Court seldom grants rehearing of a decided case, and it had telegraphed its lack of interest in doing so in this case by failing to call for a response by the state of Texas and the 25 other states that had challenged the policy — usually, a prelude to a rehearing grant.
The policy was announced by the President in November 2014, but has never gone into effect, because its enforcement was blocked first by a federal judge in Brownsville, Texas, and then by the U.S. Court of Appeals for the Fifth Circuit. That was the result that the Supreme Court upheld by the tie vote; a tie vote like that does not settle anything, other than leaving in effect the lower court actions at issue.
The lower courts, in temporary rulings, had declared that the President did not have authority under a federal procedural law to issue the policy. Their decisions were not final rulings on the legality or constitutionality of the policy; that is the subject of a forthcoming trial.
The administration had asked the Court to grant its rehearing request, but then to hold the case until a ninth Justices had been approved to join the bench. That was the plea the Justices turned aside in a very brief order.
On August 31, lawyers for the federal government and for the 26 states that had sued to challenge the policy had agreed to keep all of the proceedings in the trial court in Brownsville on hold until after the Supreme Court had ruled on the government rehearing petition. Now, with the Court’s denial, the case can move forward toward a final ruling on the validity of the policy.
Under the August 31 agreement, the two sides will have 30 days to discuss what to do next, and then return to the court of Judge Andrew S. Hanen to arrange a schedule for further proceedings.
There appears to be no way that the case could be decided in a final wat, even in lower courts, before President Obama’s term ends next January 20. The fate of the program thus is likely to be left to the new president elected on November 8.