Conference Report: January 19, 2018 Conference

On January 19, the Supreme Court held its last Conference until February 16 and on the same day it announced its decision to grant review in the latest travel ban case, Trump v. Hawaii. This case involves one of several legal challenges to President’s Trump third executive order restricting entry into the country primarily by individuals from several majority-Muslim countries. By issuing its latest order granting certiorari on the day of he Conference, the Supreme Court indicated that it would hear Trump v. Hawaii this Term, probably in April, even though it had otherwise finished granting cases for this Term.

President Trump’s first travel ban executive order, issued only a week into his presidency, was quickly enjoined, and was then supplanted by a second order, which was also enjoined. Last June, the Supreme Court agreed to hear the challenge to the second order and issued an opinion narrowing the scope of the lower courts’ injunctions. When the order expired on its own terms in October, the Court dismissed that case as moot. The President issued yet another executive order in September, with a revised list of countries, and no expiration date. Litigation once again ensued. As of now, the Ninth Circuit has upheld a district court’s conclusion that the order is unlawful, and the Fourth Circuit is considering a similar district court ruling, although the Supreme Court stayed the injunctions issued by the  lower courts and allowed the full executive order to go into effect pending its decision. A comprehensive compilation of documents related to the litigation over the executive orders is available at the Lawfare blog. A short summary of the history of the orders and litigation is available at the Civil Rights Litigation Clearinghouse, and a more detailed discussion is available from the Congressional Research Service.

On Monday, January 22, the Court issued the remaining orders from the January 19th Conference, and it added an additional case to its docket, Weyerhaeuser Co. v. Fish and Wildlife Service. Weyerhaeuser centers on the issue of whether the Endangered Species Act (ESA) prohibits private land from being designated as “unoccupied critical habitat” when that land is not being occupied by an endangered species and is not essential to species conservation. The Court must also decide if an agency’s decision regarding exclusion of areas from being designated as critical habitats for economic reasons is subject to judicial review.

The Fifth Circuit Court of Appeals upheld land-use restrictions on private land in Louisiana imposed by the Fish and Wildlife Service (FWS) to protect the dusky gopher frog, a species currently only found in Mississippi. The ESA allows the imposition of land restrictions on unoccupied land if it is “essential” species conservation. The FWS designated the Louisiana land at issue as unoccupied critical habit in order to expand the dusky gopher frog’s domain in efforts to conserve the frog.

The owners of the Louisiana land are fighting the designation because it will reduce the property value by as much as $34 million, and significant modifications will have to be made in order for the frog to be able to habitat there. The owners contend that under the ESA, the FWS must entertain a cost-benefit analysis is this situation, because the high cost to them significantly outweighs the benefits to the frog. The Court of Appeals held, however, that the FWS has full discretion in deciding whether or not to take a cost-benefit approach in making this determination, and that its decision is not subject to review by the courts.

Rich Samp, contributor to Forbes, aired his concerns about the Fifth Circuit’s decision noting it “established a double-standard. It permits environmental groups to seek judicial review when FWS invokes cost considerations as a reason not to impose land-use restrictions, but it denies landowners the right to go to court when FWS reaches the opposite conclusion.” The Cato Institute also reported concerns about the lower court decision, explaining in the ABA Journal, “…the assertion of jurisdiction over land with no connection to a species gives the government almost limitless power to regulate land use.” Check out the Washington Times and the Washington Examiner for more commentary on this case.

This post was drafted and edited by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019,  ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS Co-Director Carolyn Shapiro.

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