Who May/Should Preside Over Former President Trump’s Second Impeachment Trial?

VIKRAM DAVID AMAR, JASON MAZZONE

Illinois law dean Vikram David Amar and professor Jason Mazzone argue that the constitutional ambiguity over who may preside over former President Trump’s second impeachment trial supports the conclusion that the Senate should ask Chief Justice John Roberts to preside. Dean Amar and Professor Mazzone explain why other people—such as Senate President Pro Tempore, the Vice President, and any other senator—are not ideal options because of real or perceived conflicts.

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Salinas v. Railroad Retirement Board

Docket: 19-199

Opinion Date: February 3, 2021

Judge: Sonia Sotomayor

Areas of Law: Civil Procedure, Government & Administrative Law

In 1992, Salinas began seeking disability benefits under the Railroad Retirement Act (RRA) based on serious injuries he suffered during his 15-year railroad career. He was granted benefits after his fourth application in 2013. He timely sought reconsideration of the amount and start date. After reconsideration was denied, he filed an administrative appeal, arguing that his third application, filed in 2006, should be reopened because the U.S. Railroad Retirement Board had not considered certain medical records. The Board affirmed the denial of the request to reopen because it was not made “[w]ithin four years” of the 2006 decision. The Fifth Circuit dismissed an appeal for lack of jurisdiction. The Supreme Court reversed. The Board’s refusal to reopen a prior benefits determination is subject to judicial review as a "final decision of the Board.” The decision was the “terminal event” in the Board’s administrative review process. Salinas’ only remaining recourse was to seek judicial review. A reopening decision is one “by which rights or obligations have been determined, or from which legal consequences will flow.” Any ambiguity in the meaning of “any final decision” must be resolved in Salinas’ favor under the “strong presumption favoring judicial review of administrative action.” The Board could decline to offer reopening but, having chosen to provide it, the Board may not avoid the plain text of 45 U.S.C. 355(f ).

Federal Republic of Germany v. Philipp

Docket: 19-351

Opinion Date: February 3, 2021

Judge: John G. Roberts, Jr.

Areas of Law: Civil Procedure, International Law

German Jewish art dealers owned a collection of medieval relics. Their heirs allege that the Nazi government unlawfully coerced the consortium into selling the collection to Prussia for a third of its value. The relics are currently maintained by an instrumentality of the Federal Republic of Germany and displayed at a Berlin museum. After unsuccessfully seeking compensation in Germany, the heirs brought claims in the U.S. Germany argued that the claims did not fall under an exception to the Foreign Sovereign Immunities Act for “property taken in violation of international law,” 28 U.S.C. 1605(a)(3) because a sovereign’s taking of its own nationals’ property is not unlawful under the international law of expropriation. The heirs countered that the purchase was an act of genocide, a violation of international human rights law. The D. C. Circuit affirmed the denial of a motion to dismiss. The Supreme Court vacated. Under the expropriation exception, a foreign sovereign’s taking of its own nationals’ property remains a domestic affair. Historically, a sovereign’s taking of a foreign national’s property implicated international law because it constituted an injury to the state of the alien’s nationality. A domestic taking did not interfere with relations among states. The FSIA’s expropriation exception emphasizes property and property-related rights, while human rights violations are not mentioned. Germany’s interpretation of the exception is more consistent with the FSIA’s goal of codifying the restrictive theory of sovereign immunity, under which immunity extends to a sovereign’s public, but not private, acts. Other FSIA exceptions confirm Germany’s position; those exceptions would be of little consequence if human rights abuses could be packaged as violations of property rights and brought within the expropriation exception.

Roman Catholic Diocese of Brooklyn v. Cuomo

Docket: 20A87

Opinion Date: November 25, 2020

Judge: Per Curiam

Areas of Law: Civil Rights, Constitutional Law

A New York Executive Order imposed restrictions on attendance at religious services. In "red zones," no more than 10 persons could attend each religious service; in "orange zones," attendance was capped at 25. In challenges under the Free Exercise Clause of the First Amendment, the Supreme Court enjoined enforcement of the restrictions pending appellate review. The congregations made a strong showing that the challenged restrictions violate the minimum requirement of neutrality to religion. Some statements made in connection with the rules can be viewed as targeting the “ultra-Orthodox [Jewish] community,” but even disregarding those comments, the regulations single out houses of worship for harsh treatment. In red zones "essential" businesses may admit as many people as they wish; “essential” businesses include acupuncture facilities, campgrounds, garages, plants manufacturing chemicals and microelectronics, and all transportation facilities. In an orange zone, even non-essential businesses may decide how many persons to admit. A large store in Brooklyn could have hundreds of people shopping on any given day but a nearby church or synagogue would be prohibited from allowing more than 10 or 25 people inside for worship services. The Governor stated that factories and schools have contributed to the spread of COVID–19 but they are treated less harshly than churches and synagogues, which have rigorously adhered to health protocols and have admirable safety records. Stemming the spread of COVID–19 is a compelling interest for purposes of “strict scrutiny” but the regulations are not “narrowly tailored.” Less restrictive rules could minimize the risk to those attending religious services; maximum attendance could be tied to the size of the facility. The challenged restrictions, if enforced, will cause irreparable harm. Many important religious traditions require personal attendance. Granting the applications will not harm the public.