The Week Ahead – November 7, 2016

In its sixth week of the October 2016 term, the Supreme Court will hear arguments in five cases. On Monday, the Court will hear National Labor Relations Board v. SW General, Inc., the outcome of which will affect the next President’s right to appoint senior officials to temporarily fill vacancies in the executive branch. The case looks at the Federal Vacancies Reform Act, which provides that someone who is nominated to fill a vacant position requiring Senate confirmation “may not perform the office’s functions and duties in an acting capacity unless the person served as first assistant to the vacant office for at least 90 days in the year preceding the vacancy.” Amy Howe of SCOTUSblog previews the argument, here. Depending on the outcome of the election, this case could have significant implications. More specifically, if Hillary Clinton wins the presidency and the Republican party retains control of the Senate, the Senate could decline to confirm many of her executive branch nominees, as some Republicans are threatening to do with respect to her judicial appointments.

On Tuesday, the Court will hear two oral arguments. In Bank of America v. Miami and Wells Fargo v. Miami, which are two consolidated cases, Miami sued the banks, alleging that they had violated the Fair Housing Act by discriminating against African-Americans and Latinos when issuing mortgages and by making predatory loans to them. And in doing so, the city argued, the banks caused the city to lose money due to the effects of the mortgage foreclosure crisis. The case presents the issue of whether Congress required that a Fair Housing Act plaintiff plead more than just injury-in-fact when it limited lawsuits to “aggrieved person(s)”; and whether proximate cause requires more than the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through a chain of contingencies. The Miami Herald describes the city’s claims, here, and SCOTUSblog breaks down the case and discusses the history of the Court with the Fair Housing Act, here.

Lightfoot v. Cendant Mortgage Corp. presents the issue of whether a lawsuit has federal jurisdiction merely because the Federal National Mortgage Association, also known as Fannie Mae, is a party. Fannie Mae’s charter authorizes Fannie Mae to sue and be sued “in any court of competent jurisdiction, State or Federal.” Monique Lightfoot, who is suing Fannie Mae, does not want the suit to be in federal court. She argues that the charter addresses only Fannie Mae’s capacity as a separate entity with the power to litigate. Ronald Mann of SCOTUSblog explains that one interesting aspect of this case is that the Solicitor General is appearing in support of Lightfoot instead of the federally-chartered Fannie Mae.

Wednesday the court will hear arguments in Lynch, Attorney General v. Morales-Santana. The federal government is seeking to defend the constitutionality of less favorable treatment, for purposes of U.S. citizenship, of a child born abroad whose father is a U.S. citizen than the treatment given to a child born abroad whose mother is a U.S. citizen. The court must decide whether Congress’s decision to impose differing gender-based physical-presence requirements on citizen parents of foreign-born children violates the Fifth Amendment’s guarantee of equal protection; and whether the court of appeals erred in conferring citizenship on Morales-Santana. The Atlantic discusses how this case could affect a potential Trump presidency, given his stance on immigration thus far in his campaign.

With the election coming up on Tuesday, emergency litigation is already finding its way to the Supreme Court. Sunday night, the Ohio Democratic Party asked the Court to reinstate a district court order barring the Trump campaign from engaging in voter intimidation. The Sixth Circuit had stayed that order. More on the case is here. Finally, peer into Bloomberg author Noah Feldman’s thoughts on how this election could affect the Supreme Court. He believes, “[l]ots of people who don’t otherwise care for Donald Trump or Hillary Clinton say they’re going to vote Tuesday based on which presidential candidate will be best of the U.S. Supreme Court.

(To stay on top of the latest Supreme Court happenings, follow @ISCOTUS on Twitter.)

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