A Deeply Misguided Fifth Circuit Ruling on Voting Rights and the Twenty-Sixth Amendment

VIKRAM DAVID AMAR

Illinois law dean and professor Vikram David Amar comments on a recent decision by a divided three-judge panel of the Fifth Circuit holding that a Texas vote-by-mail law that prefers people who are 65 or older does not violate the Twenty-Sixth Amendment of the federal Constitution. Amar explains why the decision is “deeply misguided” and runs counter to the clear words of the Constitution.

Read More

MZM Construction Co. Inc. v. NJ Building Laborers Statewide BenefitsFunds

Docket: 18-3791

Opinion Date: September 14, 2020

Judge: Restrepo

Areas of Law: Arbitration & Mediation, Civil Procedure, Contracts

In a dispute concerning a construction company’s liability for contributions to the Benefits Fund, the Fund unilaterally scheduled arbitration. The company sought to enjoin arbitration, alleging fraud in the execution of the agreement it signed. The district court concluded that the court had the primary power to decide whether fraud in the execution vitiated the formation or existence of the contract containing the arbitration provision. The court enjoined arbitration pending resolution of factual issues that bear upon that claim. The Third Circuit affirmed. Under the Federal Arbitration Act (FAA), 9 U.S.C. 4, questions about the “making of the agreement to arbitrate” are for the courts to decide unless the parties have clearly and unmistakably referred those issues to arbitration in a written contract whose formation is not in issue. Here, the formation of the contract containing the relevant arbitration provision is at issue.

Tazu v. Attorney General United States

Docket: 19-1715

Opinion Date: September 14, 2020

Judge: Bibas

Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Immigration Law

In 1993, Tazu left his native Bangladesh, entered the U.S. without inspection, and applied for asylum based on political persecution. Eight years later, an IJ denied that application. Tazu appealed to the BIA, alleging ineffective assistance of counsel. In 2003, the BIA denied his appeal, giving him 30 days to depart. Nearly six years later, he was detained for removal. An attempt at removal failed. His passport had expired; the airline would not let him board the plane. A passport would not likely be issued quickly. In 2009, Tazu was granted supervised release. He complied with the terms of his release, held a job, paid taxes, and raised his children. Seeking a provisional waiver, in 2017, his son, a U.S. citizen, filed Form I-130, which was approved. Tazu did not immediately take the next step, a Form I212. In 2019, the government got Tazu’s renewed passport and re-detained him for removal. He sought habeas relief in New Jersey, filed his Form I-212, and moved to reopen his removal proceedings based on ineffective assistance of counsel. He lost on every front. The Third Circuit ordered the dismissal of the habeas petition; 8 U.S.C. 1252(g) strips courts of jurisdiction to review any “decision or action by the Attorney General to ... execute removal orders.” Section 1252(b)(9) makes a petition for review—not a habeas petition—the exclusive way to challenge a removal action and funnels Tazu’s claims to the Second Circuit. Tazu has a petition for review pending in the Second Circuit. He can stay with his family while that litigation is pending,.

Center for Investigative Reporting v. Southeastern Pennsylvania Transportation Authority

Docket: 19-1170

Opinion Date: September 14, 2020

Judge: Greenaway

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

The Center for Investigative Reporting sought a permanent injunction that would require the Southeastern Pennsylvania Transportation Authority (SEPTA) to run an advertisement on the inside of SEPTA buses. The advertisement promotes the Center’s research on racial disparities in the home mortgage lending market. SEPTA rejected the advertisement under two provisions of its 2015 Advertising Standards, which prohibit advertisements that are political in nature or discuss matters of public debate. The Third Circuit reversed the district court and ordered injunctive and declaratory relief. The challenged provisions of the 2015 Standards violate the First Amendment; they are incapable of reasoned application. The court noted the absence of guidelines cabining SEPTA’s General Counsel’s discretion in determining what constitutes a political advertisement and that the Center had demonstrated at least some instances of arbitrary decision-making.