Shh. Good morning. Welcome to a. C. S. s annual Supreme Court preview. Im kara stein, Vice President of policy and program at a. C. S. Which most of you likely know is a National Network of lawyers, law students, judges and policymakers who believe that a law should be a force to improve peoples lives. So here we are again. After a Supreme Court term that many felt was lackluster, despite the muchdelayed addition to the ninth justice to the bench, we are looking at an upcoming term that promises the high stakes we had grown accustomed to in recent years. You need only look at the first two weeks of oral arguments to see what i mean. During just those five days, the court will continue the constitutionality of the president s travel ban, legitimacy of wisconsins redistricting scheme and whether American Workers can be forced to arbitrate their disputes with their employers as opposed to have a day in court. Some might say the stakes are perhaps too high. To lead us through the discussion today with our distinguished panel, we have the privilege of welcoming a newcomer to this annual event, steven schwinn. Steve is a professor of law at the John Marshall law school in chicago and is cofounder and coeditor of the constitutional law prof blog if you are like me a law junky. He regularly writes for the a. B. A. Preview on United StatesSupreme Court cases and directs the a. B. A. Media alert for the seventh circuit. Most importantly he serves on the board of advisors of the chicago chapter of the American Constitution Society. I had the pleasure of working with steve recently on the soon to be ever released the Supreme Court review journal which will be forthcoming october and there are fliers out there if you want more information. But now without further ado, please welcome steve schwinn. [applause] steve thank you, kara. On behalf of myself and the panel, i would like to thank the whole team at the American Constitution Society and wed really like to thank you all for attending. What a fantastic turnout. I am excited about this. What an important time to be talking about these issues. It seems like every time i open the paper theres a new constitutional issue coming up. Its a time we really need to be engaged in these things. And so im pleased you are part of this conversation today and i am really looking forward to hearing from our very distinguished panel. My job as moderator is basically to introduce the panelists and quickly get out of the way and so i think i am going to do that. What id like to do is just a give a short introduction for each of the panelists going to my left. Their full biographies are in your materials so you can take a look and well get onto the program. So immediately to my left is Claire Prestel who is associate general counsel at the Services EmployeesInternational Union where she focuses on the csiu s docket. She worked at public justice and shes authored and coauthored amicus briefs in Supreme Court cases on a full change of range of different topics. So we look forward to hearing from claire today. To claires left, anil kalhan, an associate professor of law at Drexel University and currently visiting associate professor of law at Washington University in st. Louis. He is very involved in new York City Bar Association and American Association law schools. He focuses on immigration law, criminal law, United States and comparative constitutional law, privacy and surveillance and human rights issues. That was quite a mouthful. To his left is marty lederman, associate professor of law at Georgetown University law center. Marty served as Deputy Assistant attorney general in the department of justices office of Legal Counsel from 2009 to 2010 and as attorney advisor from 1994 to 2002. He is an active contributor to media and blogs, regular contributor to balkanization, and slate, among his other very many activities. Were pleased to have marty on the panel with us today. And to martys left, dale ho. Dale is the director of the aclus Voting Rights project and supervises the aclus voting litigation and advocacy work nationwide. Hes litigated a number of cases under the Voting Rights act and National Voter registration act and is an adjunct professor at n. Y. U. And to dales left is erin murphy. Partner in the washington, d. C. Office of kirkland ellis. Her practice focuses on Supreme Court, appellate and constitutional litigation. Shes argued three cases before the United StatesSupreme Court and she has more awards and recognitions than i think we have time for today. But this is our wonderful panel. Would you please join me in welcoming them . [applause] steve thank you very much. With that i will say a brief word about ground rules and turn it over to anil to talk about one of the cases that were all waiting to hear about, the travel ban. So each of our speakers weve asked to speak for about 10 minutes. Weve asked that they consider intervening with each other as we go and that will leave us about 30 minutes at the end for questions and answers from the audience. So with that ill turn it over to anil. Anil great. Thank you so much and thanks for a. C. S. In including me and inviting me to participate in this event. Its interesting to be discussing immigration in the context of the Supreme Court because the Supreme Court doesnt typically grant a lot of grants for a lot of immigration cases. They are typically in the last 10 years, maybe one, two, maybe three. And not necessarily raising big constitutional questions. This year the court has already agreed to hear three cases. Of course, the one that was referred to arising from the muslim entry ban in two consolidated cases but also two cases that were heard last year and then scheduled for reargument in this term with the ninth justice being appointed. Jennings vs. Rodriguez and sessions vs. Dimaya. I will talk about the entry ban case although i will say about rodriguez as well and dimaya if there is time. Especially insofar as they raise similar issues. By way of context for those who are less familiar how constitutional issues arise in the immigration context, theres a long theres two oversimplify and say there are two lines of cases that are somewhat in tension with each other. On one hand going to cases dating back to the 19th century, the Supreme Court said the political branches have quite a bit of are afforded quite a bit of deference in their substantive issues on immigration with very limited judicial review. This line of cases dates back to the late 19th century, the era of chinese exclusion, and has never really been revisited predates the Constitutional Rights revolution. But on the other hand in more recent cases, even back then, procedural due process was still respected in limited extent and in more robust sense since then but the court has more recently indicated there are limits. In cases like ines vs. Chavez. Just because the case may the issue may involve immigration that doesnt mean what the political branches do is entirely immune from constitutional review. Those have never been fully reconciled. They are in somewhat in tension with each other. Often what the court has done is to use constitutional avoidance when possible or look to procedural surrogates for substantive adjudication to use to draw from the work of hiroshi. And they may be at issue in cases that arise this term. The entry ban the case, i am sure most of you are familiar with this because its in the news. I wont belabor a lot of details. Of course, there was the First Executive order that was issued soon after the new administration came to office that was widely understood to be effectuating Campaign Promise that initially was formulated as a total and complete shutdown of muslims entering the United States. That then evolved over time in how it was framed. And that First Executive order was joined and then rather than litigate it, the white house issued a new executive order in march even as it maintained that executive order was simply a watered down version of the first one in response to the ninth circuits decision, the various injunctions affirming the washington injunction. But really seeking to accomplish the same goals. So the cases that are before the Supreme Court, one, from the district of maryland, one from the district of hawaii. Our concern is the second executive order which has a number of different provisions that are at issue. The first one involves the suspension of entry of nationals from six muslim majority countries for a period of 90 days in order for various agencies to conduct a review to identify what additional vetting was necessary. And the order included the number of exemptions that were not in the First Executive order. For example, for lawful permanent residents, duo citizens of other countries and also authorized a waiver that was not authorized in the first order for them to exercise casebycase discretion. These review provisions provided an internal review was to be conducted within 20 days of the Effective Date of the order and also directed it on submission of that report that there would be that the secretary of state would then again to request other governments to provide Additional Information about what information the United States wanted from other countries about nationals seeking to be admitted to the United States. And that report that was supposed to happen within 50 days. So subsequently over the summer the Supreme Court modified its second executive order to change the Effective Date such that the Effective Date of each provision would be when any injunctions were lifted as to those particular provisions. What the ninth circuit lifted the injunction on june 12. So now all of those internal provisions will by now have run the review provisions in terms of the time period thats prescribed in the executive order. Section 6 of the executive order suspended the u. S. Refugee Admissions Program for 120 days and then also reduced the number of refugees that were authorized to be admitted for this fiscal year from 110,000 to 50,000. Also removed an express religious preference in the First Executive order. You have two cases working up. In the Fourth Circuit, the issue was resolved on constitutional grounds. The Fourth Circuit concluded in a divided embank opinion that the District Court enjoined section 2c of the entry ban provision didnt address the refugee provision but did so when the Fourth Circuit affirmed it affirmed on a constitutional ground under the establishment clause. The dissenting opinions in that case essentially took issue at the majority looking beyond the face of the executive order itself to reach its conclusion that religious animus was on the order. With one dissenting judge raising a concern that donald trump might, in his words, never be able to free himself from the stigma of bias that the District Court has enshrined with the preliminary fact finding. In the hawaii order by contrast, the District Court enjoined both the entry ban as well as the refugee curtailing of the refugee Admissions Program. Then when the ninth circuit affirmed that, the threejudge panel rested its decisions on two separate statutory grounds. That it wasnt an exercise of the delegated authority from congress and that it may have run afoul of the antidiscrimination provision in the immigration law. So the Supreme Court granted certiorari and the injunction allows the entry ban to go into effect as to individuals who cant creditably claim bonafide relations to persons or entities in the United States. Theres been a decent amount of litigation as to the scope of that. What the Supreme Court said. Which we can talk about in a q and a if folks are interested. There is a good chance by the time this case is argued next month that it will be regarded as moot. I should note that professor lederman has written quite a bit this issue on i think on just security and i would commend those pieces to you. Because presumably the period will have ended now that the states have been limited and by the stays have been limited and by the oral argument comes around, all of the time limits in the executive order even as modified will now in fact have run. Its also by then, presumably then a new executive order issued and the focal point of this issue will turn to that. Should it reach the merits, its not by any means it will be ultimately be decided on constitutional grounds because there are statutory issues and so it may well be either by avoidance grounds or straightforward statutory interpretation the court doesnt reach these constitutional questions. Let me with just a couple minutes left Say Something about jennings because i think especially if the court doesnt reach these issues in this litigation and does in fact conclude that the case is moot, some of the issues in jennings might become relevant. So jennings involves presents the court with a challenge how to navigate between two two decisions that were intentional with each other. For 2003. Sus kim they held indefinite, permanent detention of an individual who has no foreseeable likelihood of being reinvolved doesnt raise the due process clause and in light of those constitutional concerns, the corporate interpreted those provisions to not authorize indefinite detention, but rather to require periodic review of the need for detention. On the other side, moore vs. Kim decided a couple years later sustained against constitutional challenge, statutory provision that categorically mandates detention for individuals based solely on their being deportable due to prior criminal convictions as opposed to having an individualized determination of their whether theyre a flight risk or a danger to public safety. And unlike the individuals, those are individuals who dont have final orders of removal and so it again in rodriguez there may be it may be that this case will be decided on statutory grounds if the court wishes to invalidate this policy. That is how the ninth circuit did so. At oral argument last year, there was some discussion about how to apply the avoidance cannon and that is something to the extent theres a different approach taken in rodriguez, then that could affect how the avoidance cannon is applied in other context. Theres also the issue involving the strength of the power and also each set of issues theres a concurring opinion in the past from Justice Kennedy that might bear upon how to how the court might act in this case. So ill stop there. We can leave sessions vs. Dimaya and leave that in the q a if folks are interested. Steven ok. Thank you very much. Next up, well hear from Claire Prestel about arbitration cases and possibly about a case that may be on the courts docket dealing with labor issues. Claire yeah. So as mentioned i work for the Service Employees union. So im handling the cases about workers. These two cases are linked to each other because they are about employment. In my mind connected because they have a real chance of being a onetwo punch against Worker Rights that we havent seen a chance of since the 2013 term. And what i mean by that, in 2013 we had a case called mulhall which fortunately in my view was ultimately dismissed as improperly granted. That was an attack on private sector employees ability to ban together and organize. At the same time there was a case called harris vs. Quinn which went after the ability of Public Employees in particular home care workers who are paid with public moneys to organize. And so, in this term we have sort of the same situation where you have the first set of cases i am going to talk about, its three consolidated cases. The lead one i think is called nlrb v. Murphy oil and thats an attack on private sector employees ability to ban together. And then the second case in which cert has not been granted is called janice vs. Ask me and thats an attempt to make every state in the country right to work for all Public Sector employees. So first, with respect to murphy oil, i think the relevant legal background to help understand the case is that the National Labor relations act and another statute thats