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Wednesday, January 15, 2003
No. 01-1491 Denmore v. Kim


First up today, and when I say "today," I mean that the oral arguments are today (I'm late in predicting these cases, again) is a case dealing with the detention of potentially deportable immigrants. 8 U.S.C. 1226 requires that aliens, including permanent residents, who are convicted of specified crimes must be held without bail throughout the administrative removal process. The respondent in this case challenged the law via a petition for habeas corpus, arguing that it was unconstitutional because it violated Due Process. The district court agreed, holding that the detention statute was unconstitutional on its face. The (ahem) Ninth Circuit found that although the provision was not facially unconstitutional, it violated Kim's substantive due process. I predict that the Court will REVERSE because of the deference traditionally accorded Congress in matters of immigration.


No. 01-1368 Nevada DHR v. Hibbs


Here's an interesting federalism question: The Family and Medical Leave Act purports to abrogate states' sovereign immunity under the Eleventh Amendment. Is that abrogation an effective exercise of Congress's power to enforce the Fourteenth Amendment?


One great thing about Eleventh Amendment cases is that they all start the same way. While I may never be 100% sure of any of my predictions, I am fairly certain that the opinion in this case, no matter how it comes out, will start something like this:


    Under the Eleventh Amendment, States are immune from suit by citizens of other states. We have long held, however, that the Amendment merely confirmed that which existed before. States' sovereign immunity from suit extends not only to suits by citizens of other states, but to suits by a state's own citizens, both in federal and in state courts . . .


The Court has been fairly active recently on the side of sovereign immunity. The trend is toward more immunity for states. The question here, I think, will boil down to whether Congress was really enforcing the Fourteenth Amendment by passing FMLA. The (ahem) Ninth Circuit held in this case that Congress expressed its intent to abrogate sovereign immunity through FMLA, and that the act is a valid exercise of power under the Fourteenth Amendment. I think that the Court is likely to be persuaded by petitioner's argument that the Fourteenth Amendment was just a post-hoc justification for abrogation of sovereign immunity under FMLA. Because the Court has already held that Congress may not abrogate tates' sovereign immunity through the Commerce Clause, I predict the Court will REVERSE.