Solicitor General Saddles Up for Busy April at SCOTUS

Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.

By Kimberly Strawbridge Robinson

April 13 — April is a big month for the U.S. Solicitor General's office.

The SG's office—which represents the federal government at the U.S. Supreme Court—will argue in all ten cases being heard in the court's final sitting of the term.

Bookending the sitting are two of the most high-profile cases of the term: United States v. Texas, U.S., No. 15-674, to be argued 4/18/16, and McDonnell v. United States, U.S., No. 15-474, to be argued 4/27/16.

In one, the SG's office will face off against 26 states; in the other, against just one man. But both cases have potentially wide-sweeping consequences, court watchers told Bloomberg BNA.

‘Sweeping and Dramatic' Program

Kicking off the sitting is United States v. Texas, a challenge to President Barack Obama's deferred action immigration program—Deferred Action for Parents of Americans and Lawful Permanent Residents, or “DAPA.”

The administration says the program is just one of a long line of deferred action programs that give the executive the discretion to determine which of the more than 11 million immigrants who have entered the country illegally should be deported.

In “any given year, more than 95% of the undocumented population will not be removed” due to limited resources, so the executive has historically had the discretion to determine which deportations to prioritize, the government's Supreme Court brief said.

But the U.S. Court of Appeals for the Fifth Circuit disagreed that DAPA was of the same class of deferred programs regularly employed by the executive. DAPA is “sweeping and dramatic,” the court said, noting that “4.3 million illegal aliens [] would be eligible for lawful presence under DAPA.”

Therefore, the Fifth Circuit put a temporary, nationwide ban on DAPA while a collection of states—led by Texas—fight the program in court.

Reorienting Government Relations

While the case has significant implications for the millions of immigrants potentially affected by DAPA, the court's decision could also “have a dramatic effect on our modern regulatory state that would extend far beyond the important executive action on immigration actually at issue in this case,” Ohio State University Moritz College of Law's Chris Walker, Columbus, Ohio, told Bloomberg BNA April 9.

“There are at least four questions presented in the case, all of which could have profound effects on other executive actions,” Walker, who writes for the ABA Section of Administrative Law and Regulatory Practice's blog, said.

First, the court must decide whether states have standing to challenge such executive actions in court, Walker said. That determination will dictate how much states can push back on federal executive actions that affect their citizens directly, he said.

“Future executive actions on immigration come immediately to mind, but one could imagine challenges to other executive actions ranging from health care and education to financial regulation and tax,” Walker said.

Similarly, the court must consider “whether federal agencies must go through the most time-intensive notice-and-comment rulemaking processes before adopting these types of policies,” he said.

“Notice-and-comment rulemaking is time- and resource-intensive for an agency to undertake, which could discourage an agency from taking any action at all,” he said.

Although a narrow decision could have a limited impact, a more general attack on the executive branch's use of policy guidance to effectuate policy change might affect “all types of executive guidance on federal enforcement actions in immigration and elsewhere,” Walker said.

“And, of course, if the Court concludes that the Obama Administration cannot substantively pursue these immigration policies at all without Congress—either as a matter of statutory or constitutional law—then that decision would have a tremendous impact on the administration of federal immigration law,” he said.

Such a decision “could also reorient the relationship between Congress, the President, and the courts more generally, as well as, perhaps, the relationship between the federal government and the states,” Walker said.

“The stakes are indeed high in United States v. Texas,” he said.

‘Prosecutorial Crosshairs.'

The stakes remain high—though, perhaps less obviously—as the court concludes oral arguments for the 2015 term with McDonnell v. United States.

Here, former Virginia Governor Bob McDonnell asserts that the court below defined bribery too broadly in relation to his 2014 conspiracy convictions.

“This case marks the first time in our history that a public official has been convicted of corruption despite never agreeing to put a thumb on the scales of any government decision,” his Supreme Court brief said.

“Officials routinely arrange meetings for donors, take their calls, politely listen to their ideas, and refer them to aides. In criminalizing those everyday acts, the Government has put every federal, state, and local official nationwide in its prosecutorial crosshairs,” the brief said.

But the Fourth Circuit said that the acceptance of “money and lavish gifts in exchange for efforts to assist a Virginia company in securing state university testing of a dietary supplement the company had developed” was sufficient to support McDonnell's conviction and two-year jail sentence.

‘Clumsy & Outrageously Corrupt Officials.'

Those following the case disagree on which outcome—affirming the conviction or overturning it—would have the greatest impact.

If McDonnell's conviction is overturned, “it could make future prosecutions of public corruption much more difficult,” George Washington University Law School professor Randall Eliason told Bloomberg BNA April 9.

“Corruption often takes place through nods, winks and understandings rather than express agreements,” Eliason, former chief of the United States Attorney for the District of Columbia's Public Corruption/Government Fraud Section who blogs about white collar crime, said. “If McDonnell prevails, the most clumsy and outrageously corrupt officials may still be prosecuted, but subtle and more sophisticated corruption will be much more difficult to prove.”

But McDonnell is supported at the high court by several former federal officials—including former senator and U.S. Attorney General John Ashcroft—who said in their amicus brief said that “the court of appeals’ breathtaking expansion of public-corruption law would likely chill federal officials’ interactions with the people they serve and thus damage their ability to effectively perform their duties.”

“To effectively serve, public officials must interact with the public, seeking to understand their needs and learn about their concerns. Elected officials, in particular, are expected to advocate, publicize, and implement the goals of the people who elected them,” the brief said.

If allowed to stand, the lower courts' interpretation could “cripple the ability of elected officials to fulfill their role in our representative democracy by understanding and serving the needs of their constituents,” it said.

Small Office, Lots of Energy

But while United States v. Texas and McDonnell v. United States will be heavy lifting for the solicitor general's office, it's just the start of the office's work during the sitting. The SG's office—which represents the federal government at the U.S. Supreme Court—will argue in all ten cases being heard in the court's final sitting of the term.

Legal Jiu-jitsu

Of course, the fact that the SG's office faces a tough month is—at least in part—of its own doing. The office used some legal jiu-jitsu to get the Texas immigration case heard this term.

U.S. Solicitor General Donald Verrilli Jr. even warned in a Nov. 24 letter to the court clerk that if the Supreme Court pushed the case past the court's deadline to hear the case this term, he would seek a special argument session in May (84 U.S.L.W. 810, 12/15/15).

Watch more here.

Melissa Arbus Sherry, of Latham & Watkins, Washington, said that's not unusual.

In recent terms, the office “has participated in all or almost all of the April cases—either as amicus or as a party. Although it varies year to year, [the office] tends to participate in about 70 to 80% of the cases each Term,” Sherry said.

How often the office “participates as a party, as opposed to as amicus, tends to vary each sitting and each Term,” she said. For example, “the United States participated in all but one of the April cases last Term and was a party in four,” and “the prior April sitting had the U.S. participating in every April case, but was only a party in two,” Sherry said.

How does the office handle such an intense schedule?

Sherry, herself a former Assistant to the Solicitor General, said although the office is very small—with 21 full-time attorneys—the office “is staffed by incredibly talented and hardworking lawyers who dedicate their energy, efforts, and talent to representing the United States at the highest levels.”

Of course, all that work could end up being in vain.

With a Supreme Court vacancy still looming, the justices could split 4-4 in either of these cases, which would affirm the appeals court decision below. An evenly split court in United States v. Texas would keep in place the temporary injunction on DAPA, handing a de facto loss to the federal government.

But the U.S. would come out on top with an evenly divided court in McDonnell v. United States, affirming the conspiracy convictions.

Either way, the court is expected to decide the fate of both cases by the end of June.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

Request Litigation on Bloomberg Law