SCOTUS Monday

Today’s big SCOTUS news is the oral argument over whether Congress can prevent the President from firing officials of independent agencies. This has been a big debate in constitutional law going back at least as far as the administration of President Andrew Johnson (1865-1869). Update: Most observers of the argument expect the Administration position to prevail. See, e.g., this article in the WSJ.

There is far less action in criminal law. The court’s orders list today took no new cases, criminal or civil. Last Friday, the court issued a short list taking up four cases. The most newsworthy of these is the civil case on how broadly to construe the citizenship clause of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” In particular, which children born to noncitizen parents are “subject to the jurisdiction” of the United States?

Children born to diplomats are clearly excluded by that clause. But who else is excluded? An executive order issued by President Trump on his inauguration day takes the position that “children of temporary visitors and illegal aliens are not U.S. citizens by birth,” contrary to the long-standing interpretation. According to the Government’s petition for certiorari in Trump v. Barbara, No. 25-365,  the executive order directs federal agencies not to issue or accept citizenship documents for “children born more than 30 days after the Order’s effective date.”

CJLF has not taken a position on this issue. It tangentially affects criminal law in that noncitizens can be deported for committing serious crimes while citizens cannot, but it is mostly out of our scope. Amy Howe has this post on the case at SCOTUSblog.

The actual criminal case taken up Friday is Abouammo v. United States, No. 25-5146. This case involves a rather technical venue question. Venue in criminal cases was important enough to include in the Bill of Rights, due to the pre-Revolution practice of transporting American colonists back to England for trial. The Sixth Amendment guarantees the defendant the right to trial “by an impartial jury of the State and district wherein the crime shall have been committed….”

But where a crime is “committed” has always involved some uncertainty, and it is even less clear in the modern age. In this case the defendant sent, from his home in Seattle, an email to San Francisco-based federal agents investigating crimes involving Twitter, based in San Francisco. The email had a phony document attached.

Abouammo was charged with various crimes in the district that includes San Francisco, and this was clearly a correct venue for most of the charges. One count, though, was falsification of records with intent to obstruct a federal investigation. Could that crime be tried in California with the others, or did the government have to bring a separate case in Washington State? We will probably find out in May or June.