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The Supreme Court issued its unanimous decision in Sanchez v. Mayorkas on June 7, 2021.
Jose Santos Sanchez, a citizen of El Salvador, entered the United States illegally in 1997. Four years later, he applied for and was granted Temporary Protected Status (TPS) then in 2014, Sanchez applied for Lawful Permanent Resident (LPR) status.
The United States Citizenship and Immigration Services denied Sanchez’ LPR application, finding him ineligible based on his illegal entry—so Sanchez sued in District Court. The court sided with Sanchez, holding that the grant of TPS automatically made Sanchez eligible for LPR consideration.
On appeal, the Third Circuit reversed, finding Sanchez ineligible for LPR, based on his illegal entry, and the Supreme Court affirmed. The Court found that eligibility for LPR status under 8 U.S.C. Section 1255 requires “admission” defined as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” As a result, Sanchez’ illegal entry made him ineligible for LPR.
Featuring:

Hon. Grover Joseph Rees, III, retired United States Ambassador to East Timor, General Counsel of the US Immigration and Naturalization Service from 1991 through 1993



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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Three of the nation's leading scholars on constitutional law and executive power — Michael McConnell, Sai Prakash, and John Yoo — join us to discuss the true extent of executive power, and their new books on the subject.

The most recent book, The President Who Would Not Be King: Executive Power under the Constitution by Prof. McConnell, was reviewed in the pages of the Federalist Society Review by John Yoo. Before that, Profs. Prakash and Yoo joined the Federalist Society's Teleforum to debate the Constitution's grant of presidential power and whether (or to what extent) President Trump upheld that grant. The discussion continues with the new voice of former federal judge and distinguished originalist scholar Michael McConnell.

Featuring:
-- Prof. Michael W. McConnell, Richard and Frances Mallery Professor of Law, Director of the Constitutional Law Center, Stanford Law School; Senior Fellow, Hoover Institution
-- Prof. Saikrishna B. Prakash, James Monroe Distinguished Professor of Law and Paul G. Mahoney Research Professor of Law, University of Virginia School of Law
-- Prof. John C. Yoo, Emanuel S. Heller Professor of Law, UC Berkeley School of Law; Visiting Fellow, Hoover Institution
-- Moderator: Dean A. Reuter, Senior Vice President, General Counsel and Director of Practice Groups, The Federalist Society

On June 17, 2021, the US Supreme Court unanimously decided Fulton v. City of Philadelphia for petitioners. Chief Justice John Roberts, writing for the Court in an opinion joined by Justices Breyer, Kagan, Sotomayor, Kavanaugh, and Barrett, explained that the city violated the First Amendment's Free Exercise Clause when it refused to contract with Catholic Social Services for foster-care services unless CSS agreed to certify same-sex couples as foster parents.
Justice Barrett filed a concurring opinion in which Justice Kavanaugh joined and Justice Breyer joined as to all but the first paragraph. Justice Alito filed an opinion concurring in the judgment, in which Justices Thomas and Gorsuch joined. Justice Gorsuch filed an opinion concurring in the judgment, in which Justices Thomas and Alito joined.
Featuring:

Prof. Mark L. Rienzi, President, Becket Fund for Religious Liberty; Professor of Law, Columbus School of Law, The Catholic University of America

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

The Biden Administration recently made headlines by announcing a greenhouse gas emissions reduction target for the U.S. of 50% by 2030 (relative to 2005 levels) when hosting a climate summit with world leaders. Indeed, in an executive order (Jan. 27, 2021), President Biden stated that “[i]t is the policy of my Administration that climate considerations shall be an essential element of United States foreign policy and national security.” China, on the other hand, is not only the world’s largest carbon emitter, but also considered by many to be a geopolitical rival to the U.S. It has gained prestige for committing to reaching net zero emissions by 2060, even while its emissions continue to increase significantly in the present. The teleforum will discuss the respective aspirational goals and current efforts of China and the U.S. with regard to climate change mitigation, as well as the legal frameworks within which each government attempts to implement policy. It will then discuss the impact of this issue upon the broader strategic interactions between the two nations, and consider paths forward for U.S. policy.
Featuring:

Gabriel Collins, Baker Botts Fellow in Energy & Environmental Regulatory Affairs, Center for Energy Studies, Baker Institute
Moderator: Dan West, Executive Committee, International and National Security Law Practice Group

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

On June 14, 2021, the Supreme Court issued its decision in Terry v. United States. Petitioner Tarahrick Terry plead guilty to possession of crack cocaine in 2008. Following the passage of the First Step Act in 2018, petitioner requested resentencing. The First Step Act makes the 2010 Fair Sentencing Act’s downward sentence modification for certain crack cocaine convictions retroactive. The Court found that since Terry’s initial crack cocaine conviction did not trigger a mandatory minimum, it was not modified by the Fair Sentencing Act. As a result, the First Step Act does not apply and Terry’s request for retroactive resentencing was properly denied.

Featuring:
Vikrant P. Reddy, Senior Research Fellow, Charles Koch Institute


Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

On June 16, 2021, The Federalist Society's Religious Liberties Practice Group hosted a teleforum titled "Talks with Authors: Religious Liberty in Crisis."

In his new book Religious Liberty in Crisis: Exercising Your Faith in an Age of Uncertainty, former U.S. Solicitor General Ken Starr explores the contemporary relationship between government, constitutional law, and religious freedom. Judge Starr is joined by Professor Robert P. George, Princeton's McCormick Professor of Jurisprudence, to discuss the book and related matters.

Featuring:
-- Hon. Kenneth W. Starr, U.S. Court of Appeals, District of Columbia Circuit (1983-1989); U.S. Solicitor General (1989-1993)
-- Moderator: Prof. Robert P. George, McCormick Professor of Jurisprudence; Director, James Madison Program, Princeton University

On June 16, 2021, The Federalist Society's Administrative Law & Regulation Practice Group hosted a teleforum on "Certiorari and Stinson Deference."
The U.S. Supreme Court recently signaled a retreat from deference to agency guidance in Kisor v. Wilkie, in which the Court narrowed judicial deference available to agencies construing their own ambiguous regulations.
But what about judicial deference to the U.S. Sentencing Commission, the agency housed in “within the Judicial Branch,” and which Justice Scalia derided as a “junior varsity Congress,” making policy choices that should be committed to the legislature? In Stinson v. United States, the Supreme Court held that courts should defer to the commentary the Sentencing Commission issued construing their formally adopted Sentencing Guidelines, unless they are “inconsistent with, or a plainly erroneous reading of,” the relevant Guideline. The Stinson Court required such deference even if the Commission’s interpretation “may not be compelled by the guideline text.”
On June 17, the Supreme Court’s conference is slated to include discussion on a series of cases percolating up from the courts of appeals that all raise similar challenges to the use of Stinson deference in deciding criminal defendants’ sentences. The Court seems poised to grant certiorari to one or more of these cases challenging deference in order to resolve a broad and deep split among the circuits that reflects inconsistencies in sentencing nationwide. Or, at least, it would explain why the court has been holding some of these cert petitions for over six months in order to consider all of them together—perhaps in order to select the best vehicle from among the slew of petitions clamoring for the Court’s consideration.
Here to discuss the pending Stinson deference cert petitions is appellate attorney John Elwood, a partner at Arnold & Porter who is better known in some circles as the relist guru on SCOTUSblog. John filed a petition for certiorari on behalf of Zimmian Tabb in a case out of the Second Circuit—one of the first Stinson deference cases to reach the Supreme Court last fall. John will explain what’s at stake in the reconsideration of Stinson deference, including the following questions: Do constitutional due process and the rule of lenity preclude Stinson deference when commentary to a Sentencing Guideline would increase a sentence? Do courts owe deference to Guidelines commentary that appears to expand the scope of the Sentencing Guidelines? Post-Kisor, may courts defer to commentary without first determining whether the pertinent Guideline is ambiguous? Post-Kisor, must courts apply canons of construction like the rule of lenity before granting the agency deference? And, practically speaking, what might the Supreme Court be looking for to select the best vehicle for reconsideration of Stinson deference from among the pending cert petitions? Moderating the discussion will be New Civil Liberties Alliance Executive Director and General Counsel, Mark Chenoweth. NCLA authored another of the cert petitions pending before this week’s conference at the Court on behalf of a defendant in the Eighth Circuit, Marcus Broadway.
Featuring:

John P. Elwood, Partner, Arnold & Porter
Moderator: Mark Chenoweth, Executive Director and General Counsel, New Civil Liberties Alliance

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

On June 17, 2021, The Federalist Society's Federalism & Separation of Powers Practice Group hosted a teleforum exploring the "Department of Justice: Executive Supervision or Independence?".

With the change in presidential administration, some critics and scholars have argued that a need for independence at agencies like the Department of Justice should be reconsidered. To whom is the Department of Justice accountable? Whose interests does it represent?

When a change in executive leadership occurs, should the policies at agencies like DOJ be subject to change as well? And, if so, how far does that latitude extend—to prosecutorial policies, to enforcement discretion, to the questions of constitutional and statutory and criminal law interpretation delegated for resolution to DOJ? This distinguished panel discussion will address these issues and the core question of which governmental actors our constitutional system has charged with directing the arc of the use of that authority.

Featuring:
-- Bob Bauer, Professor of Practice and Distinguished Scholar in Residence, New York University Law School; former White House Counsel
-- Steven Engel, Partner, Dechert LLP; former Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice
-- Jamie Gorelick, Partner, WilmerHale; former Deputy Attorney General, U.S. Department of Justice
-- Hon. Michael Mukasey, Of Counsel, Debevoise & Plimpton; 81st Attorney General of the United States
-- Moderator: Hon. Chad Readler, U.S. Court of Appeals for the Sixth Circuit

This session will cover changes – both observed to-date and anticipated – by OFCCP in the Biden administration. We will discuss the early initiatives the Biden administration has introduced, including a webpage for the Affirmative Action Verification Initiative that may substantially increase compliance obligations. Other topics will include OFCCP’s anticipated policy interests, areas of significant legal risk including compensation analysis, recent trends and expectations for audits, and the intersectionality of diversity equity and inclusion with OFCCP compliance.

Featuring:
-- Lauren B. Hicks, Of Counsel, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Charles Borden had been convicted three times of aggravated assault under Tennessee law. Federal law prohibits possession of firearms by convicted felons, and the Armed Career Criminal Act (ACCA) provides a mandatory minimum sentence of 15 years for those with three prior convictions of violent felonies. Two of Borden's convictions were under a subsection of Tennessee's aggravated assault law covering intentional or knowing violations, and one was under a subsection covering reckless violations. Borden was sentenced to the mandatory minimum over his objection that reckless aggravated assault is not a "violent felony" within the meaning of the ACCA.The federal courts of appeals were divided on the question of whether crimes with a reckless mens rea were included within the particular clause of the ACCA invoked in this case. That clause includes convictions of a crime which "has as an element the use, attempted use, or threatened use of physical force against the person of another."The Supreme Court reversed in a fractured decision, unable to reach majority agreement on a single rationale. The result is that any crime which has a definition permitting conviction on the basis of mental state of recklessness will not count for the ACCA.
Featuring:
Kent Scheidegger, Legal Director and General Counsel, Criminal Justice Legal Foundation
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