The Supreme Court’s hearings on Tuesday focus on basic disputes about federal courts’ monitoring of powers that the Constitution assigns elsewhere in government. The first case is a test of federal court supervision of how Congress and the Executive Branch manage immigration at the U.S.-Mexico border. The second case involves states’ resistance to federal courts’ overseeing of state criminal justice systems.
The hearings’ ”live” audio (no video) will be broadcast at Quick Links on the Supreme Court’s homepage — supremecourt.gov – and at c-span.org/supremecourt and C-Span Now App.
First case: Biden v. Texas The hearing is scheduled for one hour and begins at 10 a.m.
Background: From scattered sources in the text of the Constitution, Congress and the Executive Branch have built up truly sweeping powers over immigration – that is, determining who is allowed to enter the U.S. from other countries.
Congress traces its authority to its assigned roles in foreign relations: deciding who can become a U.S. citizen, how to regulate commercial activity with other nations, and whether to ratify treaties. The President and the Executive Branch find their share of power in negotiating treaties with other nations and in the power to “receive” ambassadors from foreign nations (that is, the power to officially recognize foreign governments’ legitimacy).
The federal courts supposedly have a decidedly secondary role in this field. The Supreme Court has repeatedly acknowledged that foreign policy must be left to the other branches of the national government, because the Court concedes that they are better able to handle it. But that does not mean the federal courts are powerless; the Constitution assigns them all of “the judicial power of the United States,” and that can be awesome, indeed.
This case grows out of two different approaches to government regulation of the flood of foreign nationals from a variety of countries seeking to enter the U.S. across the border with Mexico. When the Trump Administration was in power, it rigorously policed the border and pursued a variety of controversial approaches, mostly aimed at keeping foreign nationals out. This case involves the so-called “return to Mexico” policy, generally sending non-citizens back across the border while deciding whether they had any legal right to enter.
That policy, named the Migrant Protection Program, was based on a clause in immigration law that gives U.S. officials discretion to decide to return foreign nationals coming from Mexico or Canada. The policy started small but expanded widely, along the entire southwest border. MPP was widely criticized as inhumane, subjecting those returned to persecution and abuse.
The Biden Administration came into office with a more tolerant attitude about border crossings, and followed a policy of allowing some foreign nationals to remain in the U.S. until their immigration status could be decided. Within weeks after being sworn in in early 2021, President Biden suspended MPP and ordered a new study of it. By June, the policy had been cancelled, with the Administration deciding that it was ineffective, that other approaches would be more humane, and that it was affecting diplomatic relations with Mexico.
Two states, Missouri and Texas, sued, seeking to have MPP reinstated. They argued that it was suspended without adequate reasons and that its cancellation violated immigration law and the Constitution. A federal trial judge in Amarillo, Texas, agreed and temporarily reinstated MPP. A federal appeals court refused to block that order, and the Supreme Court, splitting 5-to-4, refused to disturb the lower court rulings.
The Administration then did a fuller study of the issue, worked with Mexico on a new understanding, and came to the same conclusion that MPP should be ended, issuing a 38-page report to justify that result. The federal appeals court ruled that the earlier cancellation order was the only one that counted, and that it was not adequate. It upheld the trial judge’s order reinstating the program, concluding that immigration law made the return policy mandatory, not discretionary. It also ruled that the government could not release any foreign nationals rather than return them back across the border.
Further, the appeals court said the MPP could be suspended only if Congress provided enough funds to build detention centers for every foreign national awaiting a ruling on immigration status, or if Mexico were to withdraw its consent to the return policy.
Taking the dispute on to the Supreme Court, the Biden Administration argued that the lower court rulings got immigration law wrong and had “severely impaired” the Executive Branch authority to manage the border and conduct foreign policy. The Court agreed to step in.
The questions before the Court: Does immigration law require the federal government to keep the “return to Mexico” policy in effect indefinitely, and did the appeals court improperly fail to take into account the government’s fuller explanation of the cancellation of MPP?
Significance: This case puts before the Court the stark contrast between the way the Trump and Biden Administrations managed the flow of foreign nationals toward the U.S. southern border, providing the Justices with the task of deciding when a discretionary use of government power should be treated as mandatory.
More fundamentally, this controversy is a test not only of the power of the elected branches of government to manage the nation’s immigration policy, but of the authority of the federal courts to give what are challenged as novel interpretations of law governing that policy.
The Biden Administration appeal argues that the lower court ruling, if allowed to stand, would mean that every administration since the current immigration law was passed in 1997 had understood it incorrectly.
Second case: Shoop v. Twyford This hearing will begin after the conclusion of the immigration case, and is scheduled for 70 minutes.
Background: The Constitution assigns to the state governments the primary authority to prosecute crimes, and the Tenth Amendment attempts to shield that authority from federal interference by the national government. Tenth Amendment keeps for the states and their people all power not specifically given to the national government, and there is nothing in the Constitution that makes the federal government the primary enforcer of criminal law.
But over the 233-year history of the Constitution, the federal courts have gained very broad authority over crimes in general, including state crimes. That power has grown in part out of the Constitution’s assurance that “the writ of habeas corpus” will not be suspended. That “writ” is a court order which compels the government to justify why it is holding a person, thus depriving that person of freedom. Federal courts have authority to issue such writs under laws enacted by Congress, allowing convicted individuals to challenge in federal court their state guilty verdicts and their sentences.
Federal courts’ authority over criminal law also has grown out of a law passed by the very first Congress, in 1789. In creating a national court system, that law includes what has come to be known as the “All Writs Act.” This provides a rather open-ended authority, enabling any federal court to issue any order that it deems necessary to assure that it can do its work in exercising judicial power.
State governments throughout history have often protested vigorously against federal court oversight of their criminal justice systems. As the state of Ohio put it in this new case before the Court, federal court review of state cases “represents an extreme intrusion into state sovereignty.”
The case focuses first on a provision of federal “habeas” law that allows a court to order temporary release of a convicted person from prison or jail in order that the individual can appear in court; it says release is allowed “if necessary to bring him into court to testify or for trial.” If that law applies, then that is the only reason a prisoner can be transported temporarily from prison.
But, if the All Writs Act comes into play, a court may order a person transferred from prison to another place, in order to get information that bears on the legal issues in the case.
The tension between those two provisions is at the center of an appeal by the state of Ohio in a case involving the murder conviction and death sentence of a Jefferson County, Ohio, man, Raymond A. Twyford II. He was found guilty of the 1992 murder of a man he had helped lure into a rural area, where the man was shot dead. Twyford has been challenging the verdict and his sentence ever since.
The case now before the Court involves a habeas challenge, based on his argument that his defense lawyer at trial failed to bring out the full story of a head injury he had suffered as a teenager, contending that this evidence would have helped explain and absolve him of the murder.
In 2020, Twyford asked a federal court to order that he be taken to a hospital for neurological testing, a brain scan which he hoped would support his legal claim. He sought the order under the All Writs Act. A federal trial judge issued the order, finding it to be “warranted and necessary.” A federal appeals court upheld the order, and the state of Ohio appealed to the Supreme Court, arguing that federal appeals courts are divided on the issues.
The Biden Administration’s Justice Department supports Twyford’s claim that the order of his release for a medical test was allowed under the All Writs Act, but sides with the state that there must be an explicit justification for pursuing evidence by that method.
The questions before the Court: Does the All Writs Act allow a judge to issue an order allowing a convicted individual to be released from prison for a medical test as part of an effort to gather evidence to challenge the verdict and sentence, and may a judge issue such an order without first ruling that the potential evidence would be of value in the case?
Significance: Aside from the state of Ohio’s customary complaint to the Court that federal courts in general are intruding too greatly into state criminal prosecutions, the case appears to be of importance in harmonizing the All Writs Act’s open-ended authority for courts to issue orders with the narrower rights allowed in federal habeas challenges to verdicts and sentences.
In general, state prisoners raising legal challenges in federal habeas proceedings are not allowed to seek an opportunity to gather new evidence, but must rely only on the evidence that was actually introduced at their trial unless there has been an intervening change in the law that puts into doubt the evidence at the trial. The All Writs Act conflicts with that.
On Wednesday, the Court will hear a plea by the state of Oklahoma seeking to reclaim some of its criminal prosecution powers after a devastating loss in the Supreme Court two years ago. That will be the final hearing scheduled for the Court’s current term.