How Mike Huckabee and Robert Bork Could Help Center Neil Gorsuch

SHERRY F. COLB

Cornell law professor Sherry F. Colb analyzes an unusual comment by former Arkansas Governor Mike Huckabee that a government restriction on the size of people’s Thanksgiving gathering would violate the Fourth Amendment’s guarantee against unreasonable searches and seizures. Colb describes a similar statement (in a different context) by conservative Supreme Court nominee Robert H. Bork during his (unsuccessful) confirmation hearings in 1987 and observes from that pattern a possibility that even as unenumerated rights are eroded, the Court might be creative in identifying a source of privacy rights elsewhere in the Constitution.

Read More

United States v. Lozoya

Docket: 17-50336

Opinion Date: December 3, 2020

Judge: Mark J. Bennett

Areas of Law: Criminal Law

The en banc court affirmed defendant's conviction for misdemeanor assault within the special aircraft jurisdiction of the United States. Defendant was traveling on a commercial flight from Minneapolis to Los Angeles when she argued with another passenger and slapped him in the face. The en banc court held that venue for in-flight federal offenses is proper in the district where a plane lands. The en banc court explained that, for crimes committed on planes in flight, the Constitution does not limit venue to the district directly below the airspace where the crime was committed, and thus venue "shall be at such Place or Places as the Congress may by Law have directed." The en banc court joined the Tenth and Eleventh Circuits and concluded that the second paragraph of 18 U.S.C. 3237(a) applies to federal crimes committed on commercial aircraft within the special aircraft jurisdiction of the United States. Such in-flight crimes are covered by section 3237(a) and may be prosecuted in the flight's landing district.

Center for Investigative Reporting v. United States Department of Justice

Docket: 18-17356

Opinion Date: December 3, 2020

Judge: Kim McLane Wardlaw

Areas of Law: Government & Administrative Law

CIR filed suit under the Freedom of Information Act (FOIA), requesting that ATF provide records concerning weapon ownership. CIR specifically wants to report on the use in crimes of guns that had at one time been owned by law enforcement agencies. ATF argues that Congress has forbidden the release of that information by approving the Tiahrt Rider to the Consolidated Appropriations Acts of 2005, 2008, 2010, and 2012. ATF also argues that FOIA did not require ATF to run this search in the FTS database because such a query would require it to create a new agency record. The Ninth Circuit held that the Tiahrt Rider does not exempt the data sought by CIR from disclosure under FOIA, nor does it deprive ATF of the funding it needs to turn over this data; the use of a query to search for and extract a particular arrangement or subset of existing data from the FTS database does not require the creation of a "new" agency record under FOIA; and the panel cannot answer whether the FTS database is currently capable of producing the information CIR seeks in response to a search query. Accordingly, the panel reversed and remanded for further factual development.

Medina Tovar v. Zuchowski

Docket: 18-35072

Opinion Date: December 3, 2020

Judge: Susan P. Graber

Areas of Law: Immigration Law

Plaintiff was granted a U-visa effective a month after she married her husband. After USCIS denied plaintiff's petition for a derivative U-visa for her husband, she filed suit for declaratory and injunctive relief. The district court granted defendants' motion for summary judgment and denied plaintiff's motion for summary judgment, ruling that Congress did not address directly the question of when a marital relationship must exist for a spouse to be eligible for derivative U-visa status and that the regulation is a reasonable interpretation of the governing statute. The Ninth Circuit reversed, holding that 8 C.F.R. 214.14(f)(4) is not a permissible interpretation of the governing statute insofar as it requires that spouses be married when the Form I-918 is filed, rather than when the principal petition is granted. The court held that the statute clearly answers the relevant interpretive question: to qualify for a derivative U-visa as a spouse, a person need not have been married to the principal applicant at the time the application was filed, so long as the marriage exists when the principal applicant receives a U-visa. Therefore, section 214.14(f)(4) is invalid insofar as it requires a derivative U-visa spouse to have been married to the principal petitioner when the application was filed. In this case, plaintiff and her husband were married by the time she was granted a U-visa and when she petitioned for derivative U-visa status, her husband was entitled to receive a U-visa if he otherwise met the requirements.