Latest 3 Cases: Pierce v. Ducey (Civil Rights), Banuelos Dominguez v. Barr (Immigration Law), Larson v. Saul (Public Benefits)

What Good Is a Treaty That Congress Can Simply Discard? Quite a Bit, as the Creek Nation’s Victory in the Supreme Court Shows

MICHAEL C. DORF

Cornell law professor Michael C. Dorf comments on the recent decision by the U.S. Supreme Court in McGirt v. Oklahoma, holding that a substantial portion of the state of Oklahoma is an Indian reservation of the Creek Nation. Dorf observes that the majority’s approach in McGirt makes it more likely that courts will find the existence of reservations for other tribes, but there could be collateral consequences in many other contexts.

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Pierce v. Ducey

Docket: 19-17071

Opinion Date: July 21, 2020

Judge: Per Curiam

Areas of Law: Civil Rights, Constitutional Law

Arizona's Governor appealed the district court's declaratory judgment interpreting the New Mexico-Arizona Enabling Act of 1910. The district court declared that even after a 1999 amendment, the Enabling Act continues to require congressional consent to any changes to the state constitution affecting the investment or distribution of assets in Arizona's land trust for public schools. The Ninth Circuit vacated, holding that the district court lacked jurisdiction to enter this judgment. The panel held that plaintiff lacked standing to challenge either past or future changes to the distribution formula. In this case, plaintiff stipulated that the only injury particular to him is his individual belief that the state is not obeying federal law, but such an injury is not concrete for Article III standing. The panel also held that, even if this case had initially presented a justiciable controversy, that controversy ended when Congress consented to the distribution formula in Proposition 123.

Banuelos Dominguez v. Barr

Docket: 18-72731

Opinion Date: July 21, 2020

Judge: Cardone

Areas of Law: Immigration Law

ORS 475.992(1)(a), which criminalizes manufacture or delivery of a controlled substance, is divisible as between its "manufacture" and "delivery" terms. The Ninth Circuit held that the BIA properly applied the modified categorical approach and correctly found that petitioner was convicted of manufacture of a controlled substance, which constitutes an aggravated felony. Therefore, petitioner is removable as charged. The panel also held that the BIA did not abuse its discretion in finding petitioner's offense to be a particularly serious crime and that the notice provided to petitioner was sufficient to vest the IJ with jurisdiction. Consequently, petitioner is ineligible for asylum, withholding of removal, and withholding under the Convention Against Torture. The panel dismissed in part and denied in part the petition for review.

Larson v. Saul

Docket: 18-35985

Opinion Date: July 21, 2020

Judge: Paez

Areas of Law: Public Benefits

The Ninth Circuit affirmed the Commissioner's reduction of claimant's social security retirement benefits pursuant to the Windfall Elimination Provision (WEP) of the Social Security Act. The WEP applies to retirees who, like claimant, are entitled to social-security benefits and pension benefits from employment not covered by social security. The panel held that the text of the uniformed-services exception is ambiguous as applied to dual-status technicians. However, because the Commissioner's interpretation of the uniformed-services exception is reasonable, it is entitled to Skidmore deference.