Constitutional Law Prof Blog

Court Upholds State Prosecution on Tribal Lands

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court this week ruled in Oklahoma v. Castro-Huerta that States have authority to prosecute crimes committed by non-Native Americans against Native Americans on Tribal lands. The ruling deals a sharp blow to tribal sovereignty and expands the power of the States in Indian country.

The Court's reasoning amounts to this: (1) States have sovereign authority--in particular, the power to enforce State law--within their borders; (2) Indian country exists within States; (3) therefore, absent congressional override, States have the power to enforce State law against non-Native Americans in Indian country. (The Court held that Congress did not override, or preempt, this power.)

The ruling upholds a State-court conviction of Victor Manuel Castro-Huerta for child neglect of his step-daughter (a member of the Cherokee Tribe) on Cherokee land.

The ruling drew a lengthy dissent by Justice Gorsuch, joined by Justice Breyer, Sotomayor, and Kagan. Justice Gorsuch carefully traced the history and status of Indian country and tribal sovereignty under the Constitution, demonstrating "a foundational rule that would persist for over 200 years: Native American Tribes retain their sovereignty unless and until Congress ordains otherwise." He also took sharp aim at Oklahoma's cynical efforts to encroach on tribal sovereignty, and at the nature of the case itself:

Really, though, this case has less to do with where Mr. Castro-Huerta serves his time and much more to do with Oklahoma's effort to gain a legal foothold for its wish to exercise jurisdiction over crimes involving tribal members on tribal lands. To succeed, Oklahoma must disavow adverse rulings from its own courts; disregard its 1991 recognition that it lacks legal authority to try cases of this sort; and ignore fundamental principles of tribal sovereignty, a treaty, the Oklahoma Enabling Act, its own state constitution, and Public Law 280. Oklahoma must pursue a proposition so novel and so unlikely that in over two centuries not a single State has successfully attempted it in this Court. Incredibly, too, the defense of tribal interests against the State's gambit falls to a non-Indian criminal defendant. The real party in interest here isn't Mr. Castro-Huerta but the Cherokee, a Tribe of 400,000 members with its own government. Yet the Cherokee have no voice as parties in these proceedings; they and other Tribes are relegated to the filing of amicus briefs.

Court Upholds Biden Administration's Reversal of MPP, for now

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court ruled this week in Biden v. Texas that the Biden Administration's revocation of the Trump Administration's Migrant Protection Protocols did not violate the Immigration and Naturalization Act.

The ruling is a victory for the Biden Administration and its effort to reverse MPP. But at the same time, the Court gives the lowers courts yet another shot at halting the reversal.

The Trump Administration's MPP sent certain immigrants arriving from Mexico back to Mexico pending their deportation proceedings. The Administration cited authority for the move in a provision of the INA that that said that the Secretary of Homeland Security "may return the alien to that territory pending a proceeding [to determine deportability]." 8 U.S.C. Sec. 1225(b)(2)(C).

The Biden Administration revoked MPP, however, focusing on the discretionary power in that section ("may return"), and the many policy problems that MPP wrought.

Texas and Missouri sued, arguing that the revocation violated the INA and the Administrative Procedure Act. As to the INA, the States focused on a different section, which says that immigrants "shall be detained" pending their deportation hearings. 8 U.S.C. Sec. 1225(b)(2)(A). As to the APA, the States claimed that the Administration didn't sufficiently explain its decision to revoke.

The Biden Administration countered that (C), above, is discretionary, not mandatory, and that Congress hadn't appropriated nearly enough money for the Administration to detain all immigrants under (A), above.

Lower courts ruled for the States. They held that the Biden Administration violated (A), and that it failed to engage in reasoned decisionmaking in violation of the APA. After the Administration issued a new final action reversing MPP, the appeals court held that this was merely part of its first reversal, and therefore not separately reviewable (and leaving the ruling that the revocation violated the INA on the books).

The Supreme Court reversed and ruled for the Biden Administration on the INA claim. The Court held that (C)'s "may" means "may," not "must" or "shall," and therefore the INA doesn't require the Biden Administration to retain MPP. The Court said that text, prior practice, and the President's powers over foreign affairs all supported this conclusion.

The Court said that the lack of resources to detain all immigrants didn't affect this result. In particular, the Court rejected the argument that lack of resources forced the Administration to return immigrants to Mexico. That argument went like this: (1) Under the INA, the government must detain all immigrants pending deportation hearings; (2) if it can't detain them, it may either (a) return them to Mexico or (b) release them into the United States pending deportation hearings; (3) the government can't justify a blanket policy of releasing immigrants into the United States under (b), because such a policy isn't justified under the government's parole authority in the INA, which requires, among other things, a "case-by-case" determination that parole is based on "urgent humanitarian reasons or significant public benefit."

The Court simply said that it didn't need to resolve the complicated underlying questions in this argument, because (C) clearly grants the government discretionary power, and therefore does not mandate MPP.

As to the APA, the Court remanded the case for determination whether the Administration's second effort to revoke MPP was arbitrary, capricious, an abuse of discretion, or contrary to law. This part of the ruling means that the challenge isn't over . . . and that the Biden Administration's revocation may fail yet.

Justice Kavanaugh concurred, emphasizing that the lower courts should be deferential to the Biden Administration on remand, given that the case implicates foreign-policy concerns.

Justice Alito wrote the principal dissent, joined by Justices Thomas and Gorsuch. He argued that the INA clearly requires the Administration to detain immigrants pending deportation hearings, and, if not, to hold them in Mexico.

Justice Barrett dissented, too, joined by Justices Thomas, Alito, and Gorsuch. She argued that the Court should remand the case for a determination whether the lower courts have jurisdiction in the first place, under a jurisdiction-limiting provision in the INA. (Justice Barrett also explicitly agreed with the Court's analysis on the merits. Justices Thomas, Alito, and Gorsuch did not sign on to that portion (just a sentence) of her opinion.)

Court, Under Guise of Major Questions Doctrine, Slashes EPA Authority to Regulate Power Plants

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court ruled this week in West Virginia v. EPA that EPA lacked authority to adopt generation-shifting measures to regulate power-plant emissions, because Congress didn't grant EPA that authority with sufficient clarity in the authorizing legislation.

The ruling strikes the Clean Power Plan, a regulatory scheme that is no longer in use, anyway. (More on that below.)

Bigger picture, the ruling creates a new separation-of-powers rule--the major questions doctrine--that says that if Congress wants to delegate regulatory authority over a significant policy question to an administrative agency, it must do so with clarity.

Because of lingering questions--What is a "major question"? What does it mean for Congress to legislative with sufficient specificity?--and because Congress often delegates authority in broad terms, this new doctrine threatens to take down a wide array of federal agency regulations, across the regulatory board. In short: The ruling is a potentially sweeping setback to the administrative state.

The case challenged EPA's authority to adopt the Clean Power Plan, a complex regulatory scheme that, in short, set emissions standards for existing power plants based on generation-shifting, that is, a power-plant's shift to cleaner sources. EPA claimed authority under the Clean Air Act, which authorizes EPA to select the "best system of emission reduction" for regulating power plants.

This didn't sit well with several States. They claimed that this provision authorized EPA to regulate only emissions from within power plants ("inside the fenceline" regulations), and not to force power plants to shift to new sources of energy or to engage in cap-and-trade ("outside the fenceline" regulations). In other words, they claimed that the generation-shifting standard in the Plan was not a "system of emission reduction," because it forced plants to make changes outside their existing facilities.

The Trump Administration later disavowed the Plan, and the Biden Administration put it on ice, because by then it was obsolete. (Market forces drove shifts to cleaner power since its original adoption.) The Biden Administration announced that it'd consider new rules, but continued to defend the Plan in court.

The Court first ruled that the case wasn't moot: it fell under the "voluntary cessation" exception, because the Biden Administration could re-adopt the Plan, or something like it.

The Court ruled next that the Plan violated the major questions doctrine. The Court held that EPA, in adopting the Plan, "assert[ed] highly consequential power" without "clear congressional authorization." In other words, the Plan effects Big Policy, but the Clean Air Act only authorized EPA to select the "best system of emission reduction." The statutory text was too vague to support EPA's regulatory regime.

Justice Gorsuch concurred, joined by Justice Alito, and set out a full-throated articulation of the major questions doctrine and his view of its basis in constitutional law.

Justice Kagan dissented, joined by Justices Breyer and Sotomayor. She argued that the Clean Power Plan fits well within valid congressional authorization, and that the Court has no business second-guessing the judgments of Congress and EPA on something as important as greenhouse gas regulation.