Don’t Blame the SCOTUS DACA Ruling for Difficulties Undoing Trump’s Damage

MICHAEL C. DORF

Cornell law professor Michael C. Dorf responds to claims that the U.S. Supreme Court’s decision last term invalidating the Trump administration’s effort to rescind the Deferred Action for Childhood Arrivals (DACA) program license President Trump to take actions that will be difficult for a future Democratic administration to undo. Dorf argues that characterizing the ruling as a win for Trump and his executive power is far-fetched, and we should instead be concerned with the long-lasting damage to the environment and our nation’s foreign policy caused by the Trump administration.

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Rittmann v. Amazon.com, Inc.

Docket: 19-35381

Opinion Date: August 19, 2020

Judge: Milan Dale Smith, Jr.

Areas of Law: Arbitration & Mediation, Labor & Employment Law

The Ninth Circuit affirmed the district court's denial of Amazon's motion to compel arbitration of one of the named plaintiff's federal and state wage and hour claims. This plaintiff, unlike the other three named plaintiffs, agreed to all of Amazon's Terms of Service (TOS) when he signed up to work as a delivery provider for Amazon's app-based delivery program, Amazon Flex (AmFlex), including the arbitration provision at issue here. The panel held that AmFlex delivery providers in this case are transportation workers engaged in interstate commerce and are thus exempt from the Federal Arbitration Act's enforcement provisions pursuant to 9 U.S.C. 1 where they made "last mile" deliveries of goods in the stream of interstate commerce. The panel explained that the interstate transactions between Amazon and the customer do not conclude until the packages reach their intended destinations, and thus AmFlex drivers are engaged in the movement of interstate commerce, even if they did not themselves need to cross state lines. The panel noted that cases involving delivery services like Postmates or Doordash are distinguishable, because those cases recognize that local food delivery drivers are not "engaged in the interstate transport of goods" where the prepared meals from local restaurants are not a type of good that are "indisputably part of the stream of commerce." In this case, AmFlex workers complete the delivery of goods that Amazon ships across state lines and for which Amazon hires AmFlex workers to complete the delivery. Therefore, AmFlex workers form a part of the channels of interstate commerce and are engaged in interstate commerce. The panel also held that the TOS bars application of Washington state law to the arbitration provision. Therefore, there is no valid and enforceable arbitration agreement.

Kipp v. Davis

Docket: 15-99020

Opinion Date: August 19, 2020

Judge: Jacqueline H. Nguyen

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Ninth Circuit affirmed the district court's denial of a petition for habeas corpus relief challenging petitioners' conviction and death sentence for first-degree murder, forcible rape, and robbery. The panel held that any constitutional error in admitting petitioner's reference to "Satan" was harmless at both the guilt and penalty phases, and thus rejected petitioner's First Amendment argument under Dawson v. Delaware, 503 U.S 159 (1992). The panel also held that because the admission of the Satan references could not have had substantial and injurious effect or influence in determining the jury's verdict, petitioner cannot meet the higher Strickland standard of prejudice on his ineffective-assistance-of-counsel claims. Furthermore, the district court properly denied petitioner's claim that trial counsel was ineffective during the penalty phase by failing to adequately investigate and present mitigating evidence regarding his life. Finally, weighing the overwhelming weight of the aggravating evidence against the purported juror misconduct, the panel held that any misconduct was harmless.

Kipp v. Davis

Docket: 16-99004

Opinion Date: August 19, 2020

Judge: Richard A. Paez

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Ninth Circuit reversed the district court's denial of petitioner's habeas corpus petition challenging his California conviction and death sentence for first degree murder and attempted rape. Over petitioner's objection, the trial court allowed the prosecution to present evidence of an unadjudicated murder and rape in Los Angeles County. The prosecution then relied on this "other acts evidence" to show the identity of the victim's killer and intent to commit rape and to kill. The panel held that the state court made a crucial erroneous factual determination in linking the two crimes and apparently failed to consider the entire record. Therefore, the California Supreme Court's decision finding no due process violation was based on an unreasonable determination of the facts under 28 U.S.C. 2254(d)(2). The panel also held that the admission of the evidence constituted a due process violation that prejudiced petitioner. Accordingly, the panel remanded with instructions to issue a conditional writ of habeas corpus.

United States v. Mitchell

Docket: 20-99009

Opinion Date: August 19, 2020

Judge: Per Curiam

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Defendant filed an emergency motion to stay his execution pending appeal of the denial of his motion to strike his execution warrant, vacate his execution, and enjoin violation of the district court's original judgment. Defendant argues that he is entitled to a stay pending appeal of the district court's order because the district court erred in denying his motion for injunctive relief. The Ninth Circuit denied the motion and held that defendant failed to carry his burden of demonstrating that he is likely to succeed on the merits of his claim that inconsistencies between the BOP's protocol for implementing his execution and Arizona's procedures violate the judgment and the Federal Death Penalty Act (FDPA), or that it is probable that he would suffer an irreparable injury in the absence of the stay. In this case, defendant identifies six purported inconsistencies between the BOP's execution protocol and the procedures in the Department Order Manual. The panel held that the BOP's protocol and the Department Order Manual procedures on which defendant relies are largely indistinguishable. To the extent there is any difference between the federal and Arizona procedures with respect to the first four examples, the BOP has provided a declaration certifying that it will comply with those procedures. Furthermore, as to the fifth and sixth examples, the BOP has complied with the Department Order Manual's procedures.

United States v. State of Washington

Docket: 19-35673

Opinion Date: August 19, 2020

Judge: Milan Dale Smith, Jr.

Areas of Law: Constitutional Law, Government & Administrative Law, Labor & Employment Law

The United States filed suit against the State of Washington, claiming that HB 1723 impermissibly directly regulates and discriminates against the Federal Government and those with whom it deals in violation of the doctrine of intergovernmental immunity. HB 1723 amended Washington's workers' compensation scheme and established for workers at the Hanford site – a decommissioned federal nuclear production site – a presumption that certain conditions and cancers are occupational diseases that is rebuttable only by clear and convincing evidence. The Ninth Circuit affirmed the district court's grant of summary judgment in favor of Washington, holding that HB 1723 fell within the waiver of 40 U.S.C. 3172, which authorizes states to apply their workers' compensation laws to federal lands and projects in the states in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the state. Therefore, HB 1723 did not violate the doctrine of intergovernmental immunity. Finally, the panel declined to resolve the remaining issues raised by the parties because they were not properly before the court.

Cheneau v. Barr

Docket: 15-70636

Opinion Date: August 19, 2020

Judge: Per Curiam

Areas of Law: Criminal Law, Immigration Law

The Ninth Circuit granted in part and denied in part a petition for review of the BIA's determinations that petitioner does not qualify for derivative citizenship and that his burglary conviction renders him removable. The panel held that petitioner is not a derivative citizen of the United States and did not become a citizen of the United States under 8 U.S.C. 1431(a). In this case, petitioner concedes that he never resided in the United States pursuant to a lawful admission for permanent residence while he was under the age of eighteen. Therefore, petitioner was subject to removal proceedings. The IJ and the BIA found that petitioner was removable because his California burglary conviction was a crime-of-violence aggravated felony. While this appeal was pending, the Supreme Court held that the "crime of violence" statute, as incorporated into the Immigration and Nationality Act's definition of aggravated felony, is unconstitutionally vague. Therefore, the panel held that petitioner's burglary conviction can no longer support removal as a crime-of-violence aggravated felony. The panel remanded to the BIA for the agency to determine whether petitioner is removable on another ground, including based on his California conviction for receipt of stolen property.

United States v. Swenson

Docket: 18-30215

Opinion Date: August 19, 2020

Judge: Milan Dale Smith, Jr.

Areas of Law: Criminal Law, Public Benefits

After defendant was convicted of wire and securities fraud, he was ordered to pay restitution pursuant to the Mandatory Victims Restitution Act (MVRA). The government sought to enforce the restitution order pursuant to the Federal Debt Collection Procedures Act (FDCPA), and thus applied for a post-judgment writ of garnishment against a bank account that held the Social Security benefits of defendant's wife (the claimant), on the theory that those funds were subject to garnishment pursuant to community property principles of Idaho state law. The district court denied claimant's objections and concluded that the MVRA's enforcement provision, 18 U.S.C. 3613(a), overrides the protections afforded Social Security benefits under the Social Security Act (SSA) so the benefits were garnishable community property. The Ninth Circuit held that it has jurisdiction, following the district court's entry of an order directing the disposition of the funds at issue pursuant to the writ of garnishment. The panel reversed the district court's disposition order and held that claimant's Social Security benefits are not subject to garnishment pursuant to the MVRA in connection with her husband's criminal restitution order. The panel explained that the government was entitled to collect on property only to the same extent defendant had a right to it. In this case, defendant would have no right to his wife's Social Security benefits because the SSA preempts application of Idaho state law community property principles. Accordingly, the panel reversed the order denying claimant's objections, vacated the disposition order, and remanded for further proceedings.

United States v. Valencia-Lopez

Docket: 18-10482

Opinion Date: August 19, 2020

Judge: Mark J. Bennett

Areas of Law: Criminal Law

The Ninth Circuit vacated defendant's conviction of four drug felonies stemming from his transportation and importation of 6,000 kilos of marijuana. Defendant, a truck driver, was transporting bell peppers from Mexico to Arizona when Customs and Border Protection officers stopped him and found the marijuana hidden within the pepper packages. Defendant claimed that he acted under duress after armed gunmen seized his truck in Mexico and held him at gunpoint for several hours. The panel held that the district court erred in allowing an ICE agent's testimony because the district court did not properly fulfill its gatekeeping role under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). In this case, the district court made no reliability findings about the agent's testimony. The panel also held that the error was not harmless where allowing the agent to testify obviously and substantially impacted the viability of defendant's duress defense. Accordingly, the panel remanded for a new trial.

Flores Castro v. Hernandez Renteria

Docket: 19-16048

Opinion Date: August 19, 2020

Judge: Milan Dale Smith, Jr.

Areas of Law: Family Law, International Law

The Ninth Circuit affirmed the district court's denial of a petition for the return of a child to Mexico pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. Petitioner is the child's paternal half-sister and respondent is the child's maternal grandmother, who has been raising the child in Las Vegas, Nevada since 2017. In this case, the district court clearly erred in its factual finding regarding the date of removal, which was August 25, 2017. Furthermore, respondent's removal of the child was wrongful because it breached the Mexican court's rights of custody. Because the petition was filed more than one year after the date of wrongful removal, the district court had discretion to decline to order the return of the child. Because petitioner does not appeal the district court's findings that the child is now settled in Las Vegas, nor does petitioner argue that the district court abused its discretion in declining to order return, the panel affirmed the district court's discretionary decision not to order the return of the child pending custody proceedings.