Supreme Court Year-End Review

by Roger Alford

With the Supreme Court term now complete, I thought it would be useful to give a brief year-end review of the Court’s decisions. The Supreme Court produced no blockbuster cases this year on any subject related to our discipline. It was truly a sleeper year. There were three cases addressing immunity; two cases addressing asylum, one case touching on federal preemption, one on executive power, and one on international trade. All the cases addressed statutory interpretation, and only one involved treaty interpretation. None of the cases will be long remembered, with only Iqbal having potential long-term significance for international practitioners.

Here is a brief synopsis of the relevant eight cases:

Winter v. NRDC, one of the more interesting cases of the year, concerned whether the Navy should be enjoined from using sonar in submarine military exercises because it harms whales and dolphins. The Court ruled that applying the four-part test for granting a stay, the public interest strongly favored allowing the military testing to go forward notwithstanding the environmental concerns. More on the case here and here.

Regarding the immunity cases, one involved foreign sovereign immunity and the FSIA, another qualified government immunity, and a third involved immunity from attachment of assets. In Ashcroft v. Iqbal, the Court addressed a Bivens action against Ashcroft and others alleging supervisory liability for the harsh conditions of confinement on account of Iqbal’s race, religion, and national origin. The Court held that the plaintiff was required to plead sufficient facts to show that Ashcroft adopted the detention policies for discriminatory rather than neutral, investigatory reasons. The key holding in the case, which has potential ramifications for international litigation generally, is that a complaint must make a “facially plausible” claim for relief to survive a motion to dismiss. More on the case here and here.

In Iraq v. Beaty, the Court addressed the terrorism exception to the FSIA as applied to Iraq. Iraq fell within that exception, i.e., was not immune from suit, prior to the Iraq war, but with the United States efforts to rebuild Iraq, the law was changed to provide immunity. The Court unanimously interpreted that law to grant the President the authority to waive the terrorism exception to the FSIA, which in so waiving, had the effect of reinstating Iraq’s sovereign immunity. More on the case here.

In Ministry of Defense v. Elahi, the Court addressed the question of whether a terrorist victim judgment creditor can attach a confirmed arbitration award rendered in Iran’s favor. The Court ruled that Elahi could not attach the judgment given that it had agreed to waive any claim to property “at issue” before the Iran-United States Claims Tribunal. The award was “at issue” within the meaning of the statute because the United States intended to attach the confirmed award as a set off against any award rendered against the United States before that tribunal. More on the case here and here.

On the asylum front, the two cases were narrowly decided, and both favored the applicant. In Negusie v. Holder, the Court ruled that the “persecutor bar” did not prevent the applicant from seeking asylum because he had involuntarily worked as a prison guard. The BIA had improperly relied on distinguishable Supreme Court precedent, and the case was remanded to allow the agency to interpret the statute afresh without following the inapposite decisions. Six justices (Kennedy, Roberts, Scalia, Souter, Ginsburg, and Alito) opted for this minimalist approach, while two justices (Stevens and Breyer) would have interpreted the statute definitively and then remanded with instructions. More on the case here and here.

In Nken v. Holder, the Court addressed the question of the proper test for determining a stay of removal. Voting 7-2 with Alito and Thomas dissenting, the Court rejected the Fourth Circuit’s reliance on 8 U.S.C. 1252(f)(2), which sharply restricts the availability of injunctions blocking removal, and instead opted for the traditional stay criteria of (1) likelihood of success on the merits; (2) irreparable harm absent a stay; (3) harm to other parties; and (4) the public interest. Remanded to apply that standard without reliance on 1252(f)(2). More on the case here and here.

The international trade case, United States v. Eurodif, was the first time the Court has addressed an AD/CVD case in decades. The issue was whether the process of manufacturing low enriched uranium was a service or a good within the meaning of the statute. Only in the latter case would it be subject to the antidumping duty rules. Chevron deference led the Court to conclude that the agency reasonably interpreted the transaction as a sale of good subject to antidumping rules. More on the case here and here.

The final case, Hawaii v. Office of Hawaiian Affairs, addressed the role of a federal resolution apologizing for the illegal overthrow of the Kingdom of Hawaii. The Court ruled that the Apology Resolution did not restrict Hawaii’s right to alienate land given to it in trust upon admission to the Union. The case is generally interesting on the role and impact of congressional apologies for past injustices, which has potential ramifications for other historical reparation cases. More on the case here.

http://opiniojuris.org/2009/06/30/supreme-court-year-end-review/

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