Archive for the ‘Agency Law’ Category


WHAT HAPPENED: Defendant is this case is probably the least-lucky person on Earth.  Defendant is charged with a sex crime for being slightly over 18 years old and having sex with someone who is a three year age difference.  This is a crime in the State of California, but it is legal in a strong majority of States.    After being convicted, Defendant moves to Michigan, where Defendant’s conduct would not have been a State crime.  Unfortunately, removal proceedings are brought against him, and even though he would not have been subject to removal in California, the same rules do not apply in Michigan.

WHY IS THIS BEFORE THE SUPRME COURT:  In an effort to make this generally unfair case more legal, Defendant is arguing that the immigration board’s ruling in favor of removal should be overturned, since Defendant’s crime should not subject him to removal as a “sex abuse” crime.  The State argues that even if this case is unfair, the immigration board’s ruling should stand since agencies are entitled to deference enforcing their own rules.

WHAT ARE THE RAMIFICATIONS:  One of the hot-button talking points of Trump’s new appointment is the possibility that the Court will overrule the Chevron doctrine, which is the above-referenced policy that agencies should be given deference for enforcing their own rules.  Presumably, this is the kind of case where you could make an argument that the unreasonableness of the doctrine is on display, since the different State rules and precedent have created a generally unfair proposition.  Unfortunately for this Defendant, the Conservative push for overruling agency authority is probably not going to come in a case involving immigration and sex crimes.

ROOT FOR ESQUIVEL-QUINTANA IF: you want to overrule Chevron, and don’t care about the underlying facts in what will likely be a landmark decision going forward.

ROOT FOR SESSIONS IF:  you want to overrule Chevron, but you’d rather wait until it’s an EPA decision that prevents a company owned by your right friend Doug from polluting a river.



WHAT HAPPENED:  A Virginia School District made a rule that infringed upon a transgender student’s ability to choose which bathroom to use.  The student filed suit and lost at the original level.  The Federal Government (by way of the Dept. of Education) stepped in and stated that this action violated Title IX, which was the basis for the Fourth Circuit’s reversal of the lower decision in favor of the student.  In other words, the student is currently winning based on the opinion by the Department of Education.

WHY IS THIS BEFORE THE SUPREME COURT:  For one, it’s not the reason you think it is.  While there are certainly Equal Protection issues, Substantive Due Process issues, and general Constitutional concerns, this issue comes down to agency law; and specifically whether the Department of Education had the authority to issue an opinion based on Title IX, and whether the Fourth Circuit should have followed that opinion.

WHAT ARE THE RAMIFICATIONS:  For one, it’s not as significant as you might think.  While a ruling in favor of G.G. would give more power to trans students in an educational setting, there are probably very little ramifications outside of this specific context.  The issue in this case is limited to the value of the Department of Education’s opinion, so affirming that opinion would likely just benefit this student.  Similarly, a ruling against G.G. would likely just state that the grounds for the decision were wrong and that the Court has to review the findings again fresh.  To whatever extent this makes you feel better, a ruling against G.G. is not the end of the world, as the Court could still rule in favor of the student, just on different grounds.   Ultimately, the ramifications of this ruling are very limited to the problem at hand, even though the circumstances are a hot button issue.

ROOT FOR GLOUCHESTER COUNTY IF: (and only if) if you do not agree with the Department of Education’s interpretation of Title IX and the 4th Circuit Court of Appeals’ reliance on that opinion.

ROOT FOR G.G. IF: (and only if) you do agree with the Department of Education’s interpretation of Title IX and the 4th Circuit Court of Appeals’ reliance on that opinion.

PREDICTION:  4-4 push.