Why It Matters
Federal appeals courts reached conflicting conclusions on arbitration, elections, immigration and separation of powers in August, according to a new Congressional Research Service (CRS) report. Because relatively few appellate decisions reach the Supreme Court, the report warns, circuit splits produce nonuniform application of federal law among similarly situated litigants.
The Second Circuit affirmed quashing of grand jury subpoenas obtained by John Sarcone, holding he was not lawfully serving as Acting U.S. Attorney under the Federal Vacancies Reform Act (FVRA) of 1998, and that the law barred wholesale delegation of U.S. Attorney functions to him. That ruling aligns with the Third and Ninth Circuits but conflicts with an earlier Federal Circuit decision, leaving the scope of FVRA delegation authority unresolved across circuits.
The Big Picture
The Seventh Circuit's waiver-review holding in Moore v. Club Exploria split with eight other circuits, the First, Second, Fourth, Fifth, Sixth, Eighth, Ninth, and Eleventh, which continue to apply de novo review after Lakeridge.
On elections, the Fourth Circuit held in Grant v. Belangia that South Carolina's law permitting no-excuse absentee voting only for persons 65 and older violated the Twenty-Sixth Amendment, splitting with the Fifth and Seventh Circuits on the standard for age-based voting restrictions.
Immigration produced several new divisions. The First and Third Circuits have split over mandatory detention under 8 U.S.C. § 1225(b)(2)(A). The Third Circuit's decision in Buele Morocho v. Warden is part of a split with the First Circuit over mandatory detention under 8 U.S.C. § 1225(b)(2)(A).
In securities law, the Ninth Circuit held in KalshiEx, LLC v. Assad that Kalshi's sports event contracts were not "swaps" under the Commodity Exchange Act and were subject to Nevada gaming law; the Sixth Circuit has since deepened that split on different grounds.
The Bottom Line
The Supreme Court granted certiorari on Oct. 1 in Rhoney v. Barbosa da Cunha, taking up the mandatory-detention question under 8 U.S.C. § 1225(b)(2)(A) this term.
Because relatively few appellate decisions reach the Supreme Court, circuit splits produce nonuniform application of federal law among similarly situated litigants.
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