Tag Archives: Supreme Court

The Supreme Court and the Affordable Care Act

By tmess2 | Published May 2, 2020

A continuing story of the past decade has been the multiple rounds of litigation involving the Affordable Care Act.  While politicians have been discussing next steps (Medicare for All, Public Option, Repeal & Replace, etc.), businesses and states and other groups have been fighting out particular provisions in the courts.  Between this term and the next, there are three significant cases (or sets of cases to be more accurate) involving particular aspects of the Affordable Care Act.  One — decided this past week — involved the attempt of Congress to cut off the payments to insurance companies by not appropriating the money for those payments.  The second — to be argued in the May teleconference center — is the latest round of the fight over how to cover contraceptives for employees of those who object to contraceptives on moral grounds.  The final — probably to be argued after the election — concerns the impact of reducing the penalty for violating the individual mandate to $0.

When the Affordable Care Act passed, it included a provision intended to make participation in the exchanges less risky for insurance companies during a transition period.  It did this by creating a mechanism for making payments to insurance companies if the premiums that those companies charged were insufficient to cover claims.  This program was funded in part by requiring the insurance companies that overcharged to pay in part of the excess.  However, before the transition period ended, Congress — in its annual appropriations bills — expressly barred any tax dollars from being used to cover these payments.  The issue in the case was whether — due to the mandate in the Affordable Care Act — the government still owed the insurance companies the money promised by the statutory formula notwithstanding the refusal of Congress to appropriate the money.  In an 8-1 decision, the Supreme Court decided that the insurance companies had a legally enforceable claim against the government.  While this decision is a small defeat to the Republican attempt to frustrate the working of the Affordable Care Act, the reasoning in the decision may be useful in the much bigger case to be heard next term.

One part of the argument in the forthcoming case is that, by repealing the penalty on the individual mandate, Congress not only repealed the individual mandate but effectively repealed the entire Affordable Care Act.  Technically, the argument is that the individual mandate is now unconstitutional (because the Supreme Court upheld it under the taxing power and there is no tax now), and that the rest of the Affordable Care Act is not “severable” from the individual mandate.   One of the arguments in the case decided this week was that the language in the appropriations bills barring payments to insurance companies implicitly repealed the mandate for those payments in the Affordable Care Act.    In its discussion of that argument, the Supreme Court noted the general rule that courts rarely find that the language in one act constitutes an implied repeal of a different statute.  Under this rule, unless the two acts are so contradictory that one must prevail over the other, courts will find ways to give effect to both laws. Continue Reading...

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Supreme Court October 2019 Term — COVID 19 Reset

By tmess2 | Published April 18, 2020

As with other institutions of government, COVID 19 has caused a degree of chaos in the court system.  The judicial system requires a degree of interaction between parties and judges, and social distancing requires finding new ways to handle these interactions.

The Supreme Court, like every other judicial institution, has had to find ways to cope.  Of course, the Supreme Court has been a notoriously slow institution to adapt to modern technology.  It was the last federal court to accept electronic filing.  As recently as a few years ago, everything but emergency petitions were filed by mailing (or having somebody personally deliver them) to the Supreme Court.

As this site has discussed over the years, the Supreme Court is what lawyers call a discretionary court.  That means that, with a limited number of exceptions, a party has to request that the Supreme Court take a case (the formal name for the request is a petition for writ of certiorari).  The Supreme Court then decides if it wants to hear the case.  So most of the decisions of the Supreme Court are decisions to not take a case.  There are also two small categories of cases in which the Supreme Court takes and immediately decides the case — both involving a reversal of the lower court.  One category is frequently referred to as “grant, vacate, and remand.”  Those cases typically involve an issue that the Supreme Court decided while the application for review is pending.  In these cases, the Supreme Court grants review, vacates the decision on that issue by the lower court, and remands (sends the case back) for the lower court to reconsider in light of the recently decided Supreme Court case on the issue.  The other is summary reversal.  These cases typically involve the unanimous conclusion that the lower court simply ignored the prior decisions of the Supreme Court.    But every year, the Supreme Court decides that it wants to fully hear approximately 70 cases per year (representing about 1% of the applications that the Supreme Court receives). Continue Reading...

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Supreme Court and the Electoral College

By tmess2 | Published January 17, 2020

It’s been almost twenty years since the last time that the Supreme Court has taken a case involving the electoral college. In fact, you can on one or two hands the number of times that the U.S. Supreme Court has taken a case in which the sole issue was the process of electing the President.  (I can count three in the past forty years — one involving the right of the national parties to set the rules for nominating their presidential candidate and the two from 2000 involving the recount in Florida.)

This afternoon, the United States Supreme Court took two cases — Chiafolo vs. Washington from the Washington Supreme Court and Colorado Department of State vs. Baca from the United States Court of Appeals for the Tenth Circuit.  Both cases involve the state laws governing so-called “faithless electors.”

Now faithless electors are not usually a significant problem.  While the laws differ from state-to-state,  the general concept is that in every state, there is a slate of candidates for electors associated with each ticket.  In the majority of states, the ballot only lists the individuals running for President and Vice-President, but the actual candidates being elected if that ticket wins that state (or in the case of Nebraska and Maine, the individual congressional districts) are the candidates for elector.  Each state has a process by which the respective parties nominate the slate of electors — typically either a state party convention or a state party committee.  (Obviously, for new parties and independent candidates, the elector candidates are chosen by the people handling the petition to get that party/candidate on the ballot.)   The process of filling the slate normally guarantees that the electors are loyal to the state party. Continue Reading...

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The Argument That Wasn’t — Will the Supreme Court Address Gun Rights This Term?

By tmess2 | Published December 7, 2019

When I attended law school, the general consensus of legal scholars and the controlling cases held that the Second Amendment protected a “collective” right rather than an individual right.  However, around that time, a movement was starting among conservative interest groups (with some support from conservative scholars) to push the idea that there was an individual aspect to the Second Amendment.  The historical argument on this issue is murky due, in large part, to the way that cases were decided pre-1800.  About a decade ago, conservatives prevailed (by a 5-4 vote) in having the Supreme Court hold that individuals did have some rights under the Second Amendment and that those rights were “incorporated” against the states by the Fourteenth Amendment.  However, to get to five votes, the Supreme Court left unaddressed much of the details about the nature of the right protected by the Second Amendment.

Since the Supreme Court issued its two opinions, lower courts have been handling challenges to individual laws restricting the ability to purchase firearms — some involving the type of gun, some involving who can purchase firearms, and some involving other details.  The decisions in these cases have been somewhat narrower than pro-gun activists would like.  They have been hoping to get a case to the Supreme Court so that the Supreme Court could establish the legal test that will be applied in Second Amendment cases.  Earlier this year, conservatives thought that they had found the perfect test case.

Last January, the Supreme Court granted review in New York Rifle and Pistol Association vs. New York, NY.  The case involves a challenge to a New York city ordinance that is very restrictive on where gunowners can take their guns.  (Basically, New York State has two types of permits for gun ownership — one only covers general ownership — sometimes referred to as a target license and sometimes referred to as a premises license — and the other permits carrying a weapon — a carry license.  The New York City ordinance provided that people who only have the general permit can only take their gun out of their in-city home to go to an in-city gun range and could not take them to a second home outside the city or to an out-of-city gun range.)  Seeing the writing on the wall, New York State passed a new gun law that essentially invalidated the New York City ordinance and New York City repealed its ordinance and passed a new one that was significantly less restrictive. Continue Reading...

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The Future of DACA

By tmess2 | Published November 29, 2019

Earlier this month, the Supreme Court held oral arguments on the validity of President Trump’s “decision” to terminate the Deferred Action for Childhood Arrivals (DACA) program established under President Obama.  The program — limited to those brought here as children who meet certain criteria — assures participants that they will not be deported and gives them some legal rights.  President Trump — rather due to his opposition to immigrants from Latin America or his hatred for anything that President Obama accomplished — decided to terminate this program, thereby subjecting individuals who were brought here as children without proper documentation to deportation at any time that they are found by Immigration and Customs Enforcement Agency regardless of what they have done while living in the United States (either good or bad).  Various individual and agencies filed suits challenging this decision, and they prevailed in the lower courts.  The Supreme Court decided to hear three of these cases (consolidated into one argument).

Before going into the issues, it is important to note one complicating factor in this case.  Before the end of his administration, President Obama tried to create a companion program (DAPA) that would potentially have covered the parents of the participants in DACA.  That expansion was blocked in the trial court and by the Fifth Circuit (the appellate court that includes Texas).  The Supreme Court took that case, but — after oral argument — Justice Scalia died.  That left a 4-4 split on the DAPA case which means that the Supreme Court affirmed the Fifth Circuit without opinion as an “equally divided court.”  Because there was no opinion, there is no guidance on any of the relevant legal issues.  That absence cuts both ways in the current case.

The Trump Administration has two basic arguments.  First, they argue that DACA falls within the “discretionary enforcement” part of executive branch authority.  Stripped of legal jargon, agencies have limited resources.  As such, they have to make decisions about enforcement priorities and these decisions are generally not reviewable.  For example, a state prosecutor’s office in an urban area may decide that it lacks the resources to vigorously prosecute violent felonies and, therefore, decline to file routine misdemeanors believing that it would be a better use of state resources to let city prosecutors handle those matters in city court. Continue Reading...

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Title VII and Sexual Orientation/Gender Identity — Some Thoughts on the Supreme Court Argument

By tmess2 | Published November 3, 2019

Most summaries of the Supreme Court arguments on the three Title VII cases on sexual orientation/gender identity reflect that the arguments were a rather convoluted mess.  While I have a hunch that we are heading toward a 5-4 decision with the judges splitting on partisan lines, there was enough in the argument to blur the lines as justices seemed to depart from their traditional stances.

One of the big debate in legal fields over the past 100 years is about the theory of “legal realism.”  In oversimplified terms, legal realism contends that judges are just politicians wearing robes and that they decide cases based solely on their policy preferences.  The alternative theory, as expounded by Chief Justice Roberts during his confirmation hearing, is that judges are just umpires calling the balls and strikes based on rules drawn up by others.  In this latter school of thought, judges are trying to interpret the meaning of texts and should not be concerned about the real world consequences of their decisions.

Much of the debate in the ball and strikes theory is about the proper method of interpreting legal texts.  In recent years, conservatives have been big on textualism.  Textualism posits that words in a text have meaning.  If some of the terms are ambiguous, there are rules that can be applied to clarify the text (e.g., by looking at the term in the context of that statute and how that term is used in other similar statutes).  The alternative to textualism is often a reference to legislative history, but — as many statutes were written during a time when liberals had the upper hand in Congress — legislative history (primarily the reports summarizing what a bill was intended to achieve) often supported a more liberal result.  So conservative judges argued that those reports were never actually approved by Congress and that judges should only look at what Congress actually passed — the statutory language itself. Continue Reading...

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Supreme Court Preview: October 2019 Term (Part IV) (EDIT — 10/5)

By tmess2 | Published September 28, 2019

As noted in Part I, the Supreme Court has yet to issue the calendar for its January argument session.  However, for the first time in several years, the Supreme Court has ten cases left over after the December argument session; so there are enough cases already granted to fill the five days of argument in January 2020.  There is a chance that the Supreme Court might bump some of these cases to one of the later argument sessions, but — for each of these cases — it is more likely than not that they will be heard in January.

Among the cases set for argument, you have the following issues:  1) can the beneficiary of a pension plan seek relief for misconduct by the plan managers without first proving that they have suffered actual loss; 2) whether changes to the Foreign Sovereign Immunities Act (governing when foreign governments can or can’t be sued in U.S. courts) are retroactive; and 3) whether federal employees claiming that the federal government discriminated against them due to age must — similar to private employees — prove that age was a “but for” cause of the adverse employment decision.

There are three potentially big cases for January.  First, there is Kelly vs. United States.  This is the “bridgegate” case from New Jersey.  The ultimate issue is whether a public official who uses false statements to create the pretense that their order to employees is legal is guilty of defrauding the government (by wasting public resources). Continue Reading...

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Supreme Court Term Preview: October 2019 (Part III)

By tmess2 | Published September 25, 2019

As noted in Part I and Part II of this series, there are some very big cases in the first two months of the upcoming Supreme Court term — the applicability of Title VII to sexual orientation and issues related to the board managing Puerto Rico’s debt in October and DACA in November.  Likewise, December has a big case — maybe.

That big case — New York State Rifle and Pistol Association vs. City of New York — is currently set on the first day of the December argument session.  At issue is a New York City ordinance which limits the transportation of firearms by gunowners.  The corporate gun lobby has pushed a Second Amendment challenge to this ordinance. Now, for the catch.  When the Supreme Court took this case, New York City and New York State saw the writing on the wall with this Court.  The original ordinance probably went too far even for those who want tighter restrictions on the sale of handguns.  So New York City repealed the original ordinance and passed a new less restrictive ordinance, and New York State passed legislation clarifying the powers of cities in this matter.  Because the ordinance being challenged no longer exists, the City wants the Supreme Court to dismiss the case as there is no longer a live “controversy” — and under the Constitution the Supreme Court can only hear “cases and controversies.”  There are exceptions which allow a court to review repealed statutes and, one of the issues at the October 1 term opening conference is whether to dismiss this case or keep it on the calendar for argument.

The second case on December 2 involves how copyright law applies to government documents.  Generally speaking, past decisions hold that governments are not allowed to copyright judicial opinions or statutes.  So, any person can go to the library (or an internet site) and copy a judicial opinion or a statute and then establish their own internet site (or publish and sell their own books) containing those opinions or statutes.  This limitation on government copyrights assure that the public has access to the decisions of their government.  One of the things that publishers do to enhance value is create “annotated” copies of statutes — a version in which each statute is followed by a series of notes setting forth the cases that have considered that statute and what those cases have held.  For the most part, these annotated versions are created by private companies.  Georgia, however, has an official copy of its annotated statutes.  The issue is — since a state can’t copyright its statutes or court cases — whether a state can copyright an annotated version of its statutes.  Many of the main legal publishing companies have filed briefs generally in support of Georgia (for fear that a holding in favor of the public interest groups in this case might eventually be used to attack their copyrights on their annotations as well). Continue Reading...

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Supreme Court Term Preview — October 2019 (Part II)

By tmess2 | Published September 21, 2019

As noted in the first part of this series, the highlights of the four-day October argument session are full days devoted to whether the term “sex” in Title VII includes sexual orientation (which might also lead to similar interpretations for other provisions barring discrimination in contexts other than employment) and to the board managing Puerto Rico’s financial issues.  With Veteran’s Day falling on a Monday this year, the November session will only have five argument days — the highlight of which will be DACA day.

DACA is not the only immigration issue in the November argument session.  The first case to be heard in that session in November 4 — Barton vs. Barr is also an immigration case.  That case involves the rules governing deportation.  Overly simplified, certain conduct authorize deportation.  However, an immigration judge can decide to cancel deportation under some circumstances.  One of those circumstances is that the immigrant has been a permanent resident for at least five years and has continuously resided in the United States for seven years.  However, for purposes of calculating that time period, that time stops when the immigrant commits an offense that would render them inadmissible.  The issue presented in Barton is whether a person who is not seeking admission can be rendered inadmissible.  (The paragraph governing “time stops” applies to both the provisions governing lawful permanent residents — who do not need to seek admission — and other immigrants like visa holders who do need to seek admission.  That same paragraph also stops the clock from running if the immigrant commits an offense that renders them removable — a concept that would apply to both lawful permanent residents and to visa holders.)  There is a logical argument for reading the paragraph in both ways, and this case will give a hint about how strictly this Court will read current immigration laws.

The other case on November 4 is a criminal law — Kansas v. Glover — case involving “reasonable suspicion.”  To grossly simplify matters, law enforcement can detain somebody for a brief period to investigate possible criminal activity including traffic offenses if they have “reasonable suspicion” that a crime is being committed.  A reasonable suspicion is basically objective reason(s) that lead the officer to believe that a crime might be in progress.  Here, the exact issue is whether the fact that the owner of a motor vehicle has a suspended license is a sufficient reason to justify stopping that vehicle to see if the owner is driving.  (In this case, the owner was driving, but the issue is not whether the officer was right.  Instead, the issue is whether the inference that the owner was driving is a reasonable inference for the officer to make.)  As you may have noticed, this case is the third criminal law-related case coming from Kansas.   The vast majority of the cases heard by the Supreme Court come from the federal courts.  Last year, the Supreme Court only took ten cases from state appellate courts, and — depending upon how you characterize some of the cases — only six involved criminal-law related issues.   For the Supreme Court to grant certiorari on three appeals from the same state in the same term is highly unusual and rarely happens even for larger states like Texas and California.  For a small state like Kansas, that is highly unusual.  On the other hand, Kansas has been gaining a reputation for loosely applying prior Supreme Court decisions (mostly in cases in which the Kansas Supreme Court has found that something about the state’s death penalty system violates the federal constitution), and Kansas has been involved in at least three major Supreme Court cases over the past twenty years. Continue Reading...

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Supreme Court Term Preview — October 2019 Term (Part I)

By tmess2 | Published September 14, 2019

It’s that time of year again.  October 7 is the First Monday in October meaning that the Justices of the United States Supreme Court will be back in D.C. for another term of arguments.  This term is a little bit unusual for recent terms in that — when the Supreme Court had left for the summer — they had already granted review in enough cases to fill the first four (October, November, December, and January) argument sessions.  Recently, the Supreme Court has had trouble granting enough cases to fill the first three argument sessions and have had (at most) one or two cases left over for January when they meet at the end of September to begin adding cases.

(For a little explanation of what I mean about argument sessions and filling them.   From October through April, the Supreme Court has seven argument sessions.  Each session consists of arguments on Monday, Tuesday, and Wednesday — excluding any federal or religious holidays.  A “normal” argument day consists of two arguments on two cases.  Ech argument is one hour split evenly between the two-sides although time is often allocated to the Solicitor General to express the government’s position.  Typically, there is a two-week gap between each argument session except for longer breaks after the December and maybe January session.  A Supreme Court case has two rounds of written arguments.  The first round is an application to the Supreme Court to take a case — officially called a petition for writ of certiorari.  These pleadings have relatively short page limits and are designed mostly to explain why the case is important enough for the court to take.  While there are time limits on these pleadings, the Supreme Court is relatively liberal about granting extensions.  If the Supreme Court decides to grant review, there is a second round of written arguments on the merits of the case followed by the oral argument.    The time limits to complete the second round of written arguments is approximately 105 days or 10 days before oral argument whichever is earliest — and extensions are almost unheard of.  Thus, oral argument has to be at least three months after the case is accepted for full briefing and argument — and four is better.  So, any case heard in the first three months has to be accepted before the Supreme Court recesses at the end of June,  And once the Supreme Court returns, any January cases have to be accepted by the end of the October session, etc. until all of the cases for this year’s term have to be accepted by the end of the January session.  Any case accepted after January is for the next year’s term barring an unusual case in which the Supreme Court orders accelerated briefing like what happened last term on the Census case.)

At this point in time, the Supreme Court has issued its argument calendars for the October, November, and December argument sessions.  While it has not yet released the calendar for the January session, it is likely that most of the remaining accepted cases will be heard in January (although some add-ons from cases accepted in October is possible).  Each of the first three parts of this series will focus on one argument session with the fourth part focusing on the cases left over for likely January argument and possible cases that might be granted for the rest of the term.  Any attempt to guess what is likely to be granted is highly speculative.  The Supreme Court accepts about 1% of the cases for actual full review.  Even weeding out the significant amount of long shot petitions, the strongest cases have — at most — a 1 in 10 shot at being granted review. Continue Reading...

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