Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Thursday, May 2, 2019

Admin Law, Stare Decisis Still Left on Court Docket, TBD

As the latest Supreme Court term winds down, the remaining decisions will be cast into one of two main themes, according to Erwin Chemerinsky. Chemerinsky, who argued the Franchise Tax Board v. Hyatt case in January, says the Court will be contemplating standards of review for administrative law, and whether to overrule precedents in several cases. 

Chemerinsky's case, Hyatt, deals with whether Nevada v. Hall should be overruled. Nevada v. Hall set the precedent that a state may be sued in the court of another state. Chemerinsky was surprised to find that when he argued the case, the justices were most concerned with the overarching question of stare decisis and overruling precedent, and not so much with his client who had been harassed by the state of California when he moved to Nevada. Several other cases deal with this larger issue as well. Knick v. Township of Scott, Pennsylvania asks the question whether a person must exhaust all state law remedies before bringing claims in federal court for a taking. A ruling in this case may overrule Williamson County Regional Planning Commission v. Hamilton Bank (1985) that allowed some exceptions to the rule that says a case may be brought in federal court without exhausting all state court claims. Gamble v. United States asks the Court to overrule the "separate sovereign doctrines" that allows prosecution in both federal and state court for the same crime, without implicating double jeopardy. 

Additional cases touch on stare decisis as well, but more specifically implicate administrative law delegation and deference. Kisor v. Wilkie prompts the Court to review whether courts ought to defer to reasonable agency interpretations of ambiguous regulations. Chemerinsky highlights this issue because of the scrutiny the Chevron doctrine has received in recent years. Gundy v. United States will decide the extent of Congress' legislative delegations of power, and whether they are constitutional. The Court has not decided an issue like since 1935, Chemerinsky says.

The most high profile case awaiting ruling is Department of Commerce v. New York that deals with what questions may be asked on the 2020 census. The controversial "citizenship" question is at issue. Detractors say including the question will inhibit responses resulting in a miscount. The question has been included on census forms before from 1820-1950. After that, some households continued to receive the question from 1960-2000. 

The Court's final arguments were on April 24, and it will be issuing opinions until the end of June.

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