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Supreme Court hears cases on abortion and immigration referrals

WASHINGTON – The Supreme Court on Monday agreed to rule on two initiatives by the Trump administration: one placing limits on a federal health program in an attempt to restrict access to abortion, and the other denying green cards to immigrants considered likely to make occasional use of public benefits like food stamps.

According to the court’s regular schedule, cases will be debated in the fall. But they might be moot by then, as President Biden has signaled that his administration is reconsidering both measures.

The abortion referral case concerns a program known as Title X, which helps poor women pay for birth control, preventive health screening for breast and cervical cancer, and treatment of sexually transmitted infections.

The program, established under a law enacted in 1970, prohibits federal grants from being “used in programs where abortion is a method of family planning.” The precise meaning of these words is disputed and, over the years, it has been the subject of various interpretations by different administrations.

The Trump administration announced in 2019 that clinics receiving money under the program could not refer patients for abortions at other facilities. Leading medical associations have said this “gag rule” violates medical ethics, and Planned Parenthood has withdrawn from the program.

Several states, the American Medical Association and others have filed a lawsuit challenging the measure, and federal appeals courts in San Francisco and Richmond, Va., Have rendered conflicting decisions. These divisions often lead to review by the Supreme Court.

The cases the court agreed to consider – Cochran v. Mayor and Baltimore City Council, # 20-454, American Medical Association v. Cochran, # 20-429 and Oregon v. Cochran, # 20-539 – may become irrelevant if the Biden administration revises restrictive regulations of the Trump administration.

The Immigration Case, Department of Homeland Security v. New York, # 20-449, concerns the so-called public charge rule, which seeks to discourage some immigrants from using public services.

The Trump administration announced in 2019 that it would revise the rule, which allows officials to deny permanent legal status, also known as a green card, to immigrants who may be in need of public assistance. In the past, only substantial and sustained financial aid or long-term institutionalization counted, and less than 1% of applicants were disqualified for reasons of public office.

The administration’s revised rule broadened the criteria to include “non-cash benefits meeting basic needs such as accommodation or food” used every 12 months over a 36-month period. Using two types of benefits in a single month counts as two months, and so on.

Mr Biden called for a quick review of the measure. One of its goals, he said, was “to reduce fear and confusion among affected communities”.

In August, the United States Court of Appeals for the Second Circuit in New York City ruled against the Trump administration, saying the new program would cool participation in public services for those who are eligible.

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Supreme Court hears cases of Holocaust survivors against Hungary and Germany

WASHINGTON – The Supreme Court, wary in the past of cases involving conduct by and against foreigners that have taken place abroad, heard arguments on Monday over whether US courts have a role in deciding whether Hungary and Germany have to pay for allegedly stolen goods. Jews before and during World War II.

But the seriousness of the human rights violations described in the two trials persuaded a federal appeals court in Washington to let the two cases move forward. The Trump administration has challenged the rulings, filing briefs and making arguments supporting efforts to limit scrutiny in U.S. courts.

The Hungarian Republic of Hungary v. Simon case, No. 18-1447, was brought by 14 Holocaust survivors, including four US citizens, who said their property was stolen by Hungary and its railroad public, which had thousands of Jews in the Nazi death camps in the summer of 1944.

Sarah E. Harrington, lawyer for the plaintiffs, urged judges to take this historical context into account.

“Hungary took everything the plaintiffs possessed, including the goods necessary for survival, such as shelter, clothing and medicine, and the undisputed purpose of Hungary’s receipts was to bring about the physical destruction of the Jews in Hungary. ”She declared. “It’s genocide.”

The German case, Federal Republic of Germany v. Philip, No. 19-351, concerns the Guelph Treasure, a medieval religious art treasure that once belonged to a consortium of Jewish art dealers in Frankfurt and whose value is now estimated at $ 250 million. In 1935, say the merchant families, the consortium was forced by German authorities to sell the collection for much less than it was worth.

The 42 pieces of the collection are now in the Museum of Decorative Arts in Berlin. In 2014, a German commission determined that the museum had acquired the collection legitimately and did not need to return it.

The commission said the 1935 sale was voluntary and came after a year-long negotiation that resulted in a price halfway between the open positions of the two sides. The families said that the consortium was forced to sell in the face of continued persecution.

Panels of three judges from the United States Court of Appeals for the District of Columbia Circuit have ruled against Hungary and Germany, saying cases can go ahead.

The fundamental legal question for judges in both cases is whether the disputes should be resolved in US courts. A federal law, the Foreign Sovereign Immunities Act of 1976, generally prohibits the prosecution of foreign states. The law has a few exceptions, including one for the expropriation of property, and U.S. courts have sometimes refused to hear cases against other nations for fear that this would interfere with international comity.

Gregory Silbert, a lawyer from Hungary, said his courts should be allowed to deal with the matter.

“When a complaint alleges that foreign parties have harmed other foreign parties in a foreign country, a federal court may decline jurisdiction in favor of a foreign court,” he said. “Hungary should have the first opportunity to respond to these allegations.”

The same would be true, he said, if the shoe was on the other foot.

“We can all agree,” he said, “that remedies for America’s worst injustices in the United States should not be decided by a Hungarian judge applying Hungarian law from a courtroom. in Budapest. “

Benjamin W. Snyder, a federal government lawyer who argued for Hungary, took a position that frustrated several judges. He said the Supreme Court should leave open the possibility of the courts to defer to foreign courts in the interests of international comity and send the case back to the lower courts to decide whether Hungary is entitled to such deference. . But he wasn’t saying what they should do.

Chief Justice John G. Roberts Jr. said it was a curious position given the executive branch’s expertise in foreign affairs.

“Now is the perfect time for you to fill that void,” the chief justice told Mr Snyder, who declined.

“The State Department just doesn’t feel it has enough information to provide the tribunal with a recommendation,” Snyder said.

Judge Samuel A. Alito Jr. said he was perplexed as to why judges rather than diplomats should weigh the international relations implications of allowing prosecutions against other nations in US courts. .

“There are almost 700 district judges,” he told Snyder. “Do you want each of them to assess whether a particular lawsuit raises external relations issues?”

Judge Elena Kagan also expressed doubts. “Some might say that what’s going on here,” she said, “is that the State Department expects the courts to do the tough and delicate things and some might say the dirty work. for you.

She questioned Ms Harrington, the plaintiffs’ attorney, on a similar case against Hungary in which an appeals court ruled that the potential damage could amount to 40 percent of its gross domestic product.

“So this is a lawsuit that could essentially bankrupt a foreign nation,” Justice Kagan said. “Now it seems to scream serious international friction.”

Ms Harrington responded that her case, a potential class action lawsuit, was at an early stage and that “it’s pure speculation at this point” to try to calculate her clients’ damages.

A supporting memoir from Hungarian Holocaust victims argued that it was pointless to try to prosecute in that country. He described a case brought there by a 92-year-old plaintiff whose prosecution was dismissed for lack of evidence beyond her sworn testimony and who was ordered to pay the government’s legal fees.

“The Hungarian court demanded the impossible from the survivors, that the concentration camps deprived of the means to prove with written documents the goods which had been stolen from them”, indicates the brief.

In the German case, the judges focused on a different question: Does the exception allowing prosecution under the 1976 Act for expropriation of property apply when a foreign government is accused of taking property? of its own citizens?

Federal government attorney Edwin S. Kneedler said the expropriation exception only applied to “the taking of property from a foreign national”.

More generally, he urged judges to consider the consequences of a general decision.

“It would put the courts of the United States,” said Mr. Kneedler, “to make sensitive judgments on the conduct of foreign governments, including perhaps some of our closest allies, and would invite other countries to open up. their courts to claims based on situations in this country’s unfortunate past, where it committed acts that everyone would now consider violations of international law.

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Justice Amy Coney Barrett Hears Her First Supreme Court Argument

Mr. Guarnieri was happy to accept a clear rule and Judge Barrett considered the tender.

“So your first order of preference would be the kind of formalistic line I just described,” she says. “And then your saving argument would be, if the court were not comfortable with the possibility of avoiding the obligations of the FOIA by, for example, the ‘draft’ stamping on the top, that we let’s go with the most type of multifactorial, fact-specific test. “

M. Guarnieri agreed. “It illustrates how we think the case should be resolved,” he said.

Judge Barrett later lobbied Sanjay Narayan, a Sierra Club lawyer, after arguing that the documents should be released if they had “appreciable legal consequences.”

She said she could see how the draft documents could have practical consequences, but said she doubted they could have legal documents.

Prior to the argument in US Fish and Wildlife Service v. Sierra Club, No.19-547, the court issued two unsigned decisions, ruling for a Black Lives Matter activist and a prisoner on abusive terms. Judge Barrett was not involved in the decisions.

In the first, he overturned an appeals court ruling against DeRay Mckesson, a Black Lives Matter activist who helped organize a protest in Baton Rouge, Louisiana in the summer of 2016 after the shooting death of ‘a black man, Alton B. Sterling, by two policemen. The protest began peacefully but turned violent.

An unknown protester threw a stone or something similar at a police officer identified in court documents as John Doe, seriously injuring him. The officer sued Mckesson, arguing that he was indirectly responsible for the assault given his role in organizing the protest.

The United States Court of Appeals for the Fifth Circuit in New Orleans allowed the case to proceed, rejecting Mr. Mckesson’s argument that his role in organizing the protest was protected by the first amendment.