Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (June 27–July 3, 2022), Part 1

Legal Sidebari

Congressional Court Watcher: Recent

Appellate Decisions of Interest to Lawmakers

(June 27–July 3, 2022), Part 1

July 5, 2022

The federal courts issue hundreds of decisions every week in cases involving diverse legal disputes. This

Sidebar series selects decisions from the past week that may be of particular interest to federal lawmakers,

focusing on orders and decisions of the Supreme Court and precedential decisions of the courts of appeals

for the thirteen federal circuits. Selected cases typically involve the interpretation or validity of federal

statutes and regulations, or constitutional issues relevant to Congress’s lawmaking and oversight

functions.

Some of the cases identified in this Sidebar, or the legal questions they address, are examined in other

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subscribe to the CRS Legal Update and receive regular notifications of new products and upcoming

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This week’s Congressional Court Watcher is divided into two parts because of the number of notable

decisions issued over the past week. This Legal Sidebar (Part 1) discusses Supreme Court activity during

the week of June 27 to July 3, 2022, while a companion Legal Sidebar (Part 2) addresses decisions of the

U.S. courts of appeals from that period.

Decisions of the Supreme Court

On June 30, 2022, the Supreme Court issued its final opinions of the October 2021 term. That same day,

Justice Stephen Breyer retired from regular active service as an Associate Justice of the Supreme Court,

and Justice Ketanji Brown Jackson was sworn in to succeed him. The Court’s next term begins on

October 3, 2022.

Last week, the Supreme Court issued decisions in several cases for which it heard oral arguments during

the October 2021 Term:

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Criminal Law & Procedure: Between 2010 and 2018, Congress passed legislation

prospectively reducing sentence disparities between certain crack and powder cocaine

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offenses and, in the First Step Act of 2018, gave courts discretion to reduce the sentences

of those convicted under prior standards. In a 5-4 decision, the Court held that § 404(b) of

the Act permits a district court reviewing a sentence under these provisions to consider

intervening legal and factual developments arising after the defendant’s conviction, such

as those modifying the penalties associated with the defendant’s offense (Concepcion v.

United States).

Criminal Law & Procedure: Under 21 U.S.C. § 841, it is a crime “[e]xcept as

authorized . . . [to] knowingly or intentionally . . . manufacture, distribute, or dispense”

controlled substances. In consolidated cases, the Court vacated the convictions under

§ 841 of two doctors who prescribed controlled substances, and who asserted they had

acted in the good faith belief that their conduct was permissible. Six Justices joined an

opinion holding that once a defendant produces evidence showing that his or her conduct

was “authorized,” the government bears the burden under § 841 of showing beyond a

reasonable doubt that the defendant acted knowingly or intentionally in an unauthorized

manner. The Court remanded the cases so the lower courts could discern whether the jury

instructions in the two cases reflected an appropriate understanding of § 841’s scienter

requirement (Ruan v. United States; Kahn v. United States).

Environmental Law: A provision of the Clean Air Act, 42 U.S.C. § 7411(d), authorizes

the Environmental Protection Agency (EPA) to regulate air emissions of pollutants

produced by certain categories of existing stationary sources. The Court ruled 6-3 that

Section 7411(d) did not permit EPA to base emissions guidelines for existing coal-fired

power plants on a system of emission reduction that shifted electricity production from

higher-emitting sources, including coal and gas plants, to lower-emitting sources,

including renewables. Holding that the case was reviewable by the Court, and applying

the “major questions” doctrine, the Court concluded that agency actions of vast economic

and political significance premised on statutory delegations of authority require clear

congressional authorization from the cited statute. The Court found no such clear

congressional authorization in this case (West Virginia v. EPA; North American Coal

Corp. v. EPA; Westmoreland Mining Holdings v. EPA; North Dakota v. EPA).

Immigration: By a 5-4 vote, the Court upheld the Department of Homeland Security’s

(DHS’s) rescission of the Migrant Protection Protocols (MPP), a policy implemented in

2019 requiring most asylum seekers arriving at the southern border to wait in Mexico

while their asylum claims are processed. DHS announced it was terminating the MPP in

early 2021, but a district court issued a nationwide injunction directing its continuation.

The Court held the injunction was an inappropriate remedy in light of its earlier ruling

this term that 8 U.S.C. § 1252(f) bars lower courts from entering class-wide injunctions

in cases involving certain immigration detention and removal provisions. On the merits,

the Court held that the MPP’s statutory authority, 8 U.S.C. § 1225(b)(2)(C), was

discretionary in nature, and the government’s alleged noncompliance with other detention

obligations did not transform this discretionary authority into a mandatory directive

(Biden v. Texas).

Indian Law: In a 5-4 decision, the Court held that states have jurisdiction to prosecute

crimes committed by non-Indians against Indians in “Indian country,” except where such

criminal jurisdiction is expressly preempted by federal law or is inconsistent with tribal

self-governance. The decision appears to limit some of the practical consequences of a

2020 decision, McGirt v. Oklahoma, which classified the eastern part of Oklahoma as

Indian country (Oklahoma v. Castro-Huerta).

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Religion/Speech: In a 6-3 ruling, the Court held that a public high school football

coach’s practice of praying on the football field immediately after games was protected

by the First Amendment’s Free Speech and Free Exercise Clauses. In an analysis likely to

have significant implications for future church-and-state cases, the Court “abandoned”

the mode of analysis that had been the primary (but not sole) basis for Establishment

Clause decisions over several decades. Rather than looking to whether a government

action has the purpose or effect of supporting or endorsing religion, the Court said courts

should interpret the Establishment Clause by reference to historical practices, focusing on

“original meaning and history.” Under this historical-tradition analysis, the Court

concluded that the coach’s prayer practice was not impermissibly coercive. Further, the

Court held that the school could not require educators to eschew any visible religious

expression because that would impermissibly preference secular activity (Kennedy v.

Bremerton School District).

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Veterans: The Uniformed Services Employment and Reemployment Rights Act of 1994

bars adverse employment actions against workers based on their military service, and a

state employer may be sued under the Act for monetary damages in state court. The

Supreme Court ruled 5-4 that the doctrine of sovereign immunity does not render the

Act’s state-suit provision invalid against nonconsenting states. The Court held that

Congress may authorize such suits pursuant to its constitutional war powers, because

when states joined the Union, they implicitly agreed that their sovereignty would yield to

the federal policy to raise and maintain a military (Torres v. Texas Dep’t of Public Safety).

The Supreme Court also granted certiorari in four cases for the October 2022 Term:

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Bankruptcy: The Court agreed to hear a case from the Second Circuit regarding the

meaning of a Bankruptcy Code provision concerning bankruptcy court sale orders, 11

U.S.C. § 363(m). The Court is asked to consider whether that provision deprives

appellate courts of jurisdiction over the appeal of a lease assignment order deemed

integral to the bankruptcy court’s sale order (MOAC Mall Holdings LLC v. Transform

Holdco LLC).

Criminal Law & Procedure: The Court agreed to review a case from the Second Circuit

on whether a private citizen, who does not hold elected office or government

employment, can be convicted of honest-services fraud based on an alleged fiduciary

duty owed to the public on account of his informal influence on government decision

making (Percoco v. United States).

Criminal Law & Procedure: The Court granted certiorari in another Second Circuit

case to consider whether a conviction under the federal wire-fraud statute, 18 U.S.C. §

1343, can be sustained under a “right to control” theory of fraud, which treats the

deprivation of complete and accurate information bearing on an economic decision as a

type of property fraud (Ciminelli v. United States).

Election Law: The Court agreed to review a case from the North Carolina Supreme

Court, which had struck down a congressional redistricting plan adopted by the statute

legislature, and had ordered a lower court to approve a new map. The trial court

ultimately approved a map drawn by three court-appointed experts. The Court is asked

whether a state court is constitutionally permitted to nullify a redistricting map

established by a state legislature and replace it with one of the court’s own devising. In

February, the U.S. Supreme Court denied an application for an emergency stay in the

case, and it seems likely that a Court decision will not be rendered until after the

November 2022 election (Moore v. Harper).

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The Court also took action on an application for emergency action:

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Election Law: In an unsigned order issued over the dissent of three Justices, the Court

permitted Louisiana to move forward with its congressional redistricting plan pending the

Court’s consideration of a similar challenge brought against Alabama’s redistricting plan

(Merrill v. Milligan; Merrill v. Caster). In the Louisiana case, a federal district court had

instructed the state legislature to enact a new redistricting plan that included an additional

majority-Black congressional district, after concluding that the current plan

impermissibly dilutes the votes of Black Louisianans in violation of the Voting Rights

Act. In staying the lower court’s preliminary injunction and granting certiorari, the

Supreme Court did not address the merits of plaintiffs’ arguments. Instead, the case will

be held in abeyance until further action by the Court or until the Court issues its decision

in the Alabama cases. Because the Court will not hear arguments in those cases until the

October 2022 Term, it seems likely that the legal disputes over both states’ congressional

redistricting plans will not be resolved until after the November 2022 congressional

elections (Ardoin v. Robinson).

Author Information

Michael John Garcia

Deputy Assistant Director/ALD

Disclaimer

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