Oh What a Term! Lisa Soronen State and Local Legal Center

Transcription

1 Oh What a Term! Lisa Soronen State and Local Legal Center lsoronen@sso.org

2 We Must Start with a Few Nods One preemption case this term Oneok v. Learjet Biggest case in my tenure for local government Reed v. Town of Gilbert, Arizona Pre-recession number of employment cases Young v. UPS biggest SLLC filed an amicus brief in EEOC v. Abercrombie & Fitch Police cases Docket as big as every W the ADA applies to arrests will be back City and County of San Francisco v. Sheehan

3 The Big Two Cases

4 What do These Phrases Have in Common? Jiggery pokery Pure applesauce I would hide my head in a bag For more visit the Justice Scalia insult generator

5 Same Sex Marriage The basics--obergefell v. Hodges 5-4 decision written by Justice Kennedy Opinion poetic if not dramatic

6 Same Sex Marriage Four principles demonstrate why the fundamental right to marry applies with equal force to same-sex couples Right to choose who you marry is inherent in the concept of individual autonomy Right to marry is unlike any other in its importance it should not be denied to any twoperson union Marriage between same-sex couples safeguards children and families just as it does for opposite-sex couples Marriage is a keystone of American social order from which no one should be excluded

7 Same Sex Marriage The intrigue Legal nerd point: analysis focuses on fundamental rights rather than straight equal protection Three unmarried female Justices join opinion without concurring How did we get here this quickly? What s do states rights have to do with it? What about religious liberty?

8 Same Sex Marriage The controversies Some states have resisted complying with the ruling Some government officials have resisted issuing marriage licenses on religious grounds? Can employees be fired for not issuing marriage licenses based on their religious beliefs? Must state and local governments accommodate employees who don t want to issue marriage licenses based on their religious beliefs?

9 Same Sex Marriage What should state legislatures expect to see next? Proposed state legislation dealing with anti-discrimination laws Proposed state legislation dealing religious liberty NC law allows magistrates and registers of deeds to recuse themselves from performing specific marriage ceremonies or issuing marriage licenses Broader religious freedom laws that would allow people to deny products and services to gay people based on religious objections

10 Affordable Care Act The basics King v. Burwell 6-3 opinion written by Justice Roberts joined by Justice Kennedy and the liberals The ACA states that tax credits are available when insurance is purchased through an Exchange established by the State 34 states had Federal Exchanges not State Exchanges Technical legal question: is a Federal Exchange an Exchange established by the State that may offer tax credits

11 Affordable Care Act Most people agreed: text favored the challengers; policy (strongly) favored the federal government Court s reasoning Those four magic words are ambiguous until you look at the statute as a whole If tax credits weren t available on Federal Exchanges it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very death spirals that Congress designed the Act to avoid This was a drafting error

12 Affordable Care Act The intrigue Outcome of the case did not surprise me; Roberts vote did His opinion is pragmatic but is there more to it than that? Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. [The statutory language at issue] can fairly be read consistent with what we see as Congress s plan, and that is the reading we adopt. Legal nerd point: no Chevron deference to IRS interpretation

13 Affordable Care Act What s next for the Affordable Care Act? This case was a boost for the ACA more lawsuits are still pending Origination Clause case House of Representatives cost-sharing reductions case West Virginia case challenging the administrative fix requiring states to determine whether individual health-insurance policies comply with the ACA Florida Medicaid expansion coercion case Numerous ACA birth control mandate case see Lyle Denniston, SCOTUSblog, The ACA birth-control controversy, made simple

14 Biggest Case for State Legislatures

15 Arizona State Legislature v. Arizona Independent Redistricting Commission State legislatures may be excluded entirely from congressional redistricting Most significant case for state legislative power in my tenure at the SLLC 5-4, decided on the last day, didn t go the way I thought it would based on oral argument

16 Arizona State Legislature v. Arizona Independent Redistricting Commission In 2000 Arizona voters adopted Proposition 106 which places all federal redistricting authority in an independent commission The Elections Clause states: "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.... This case asks: who is the legislature the body or the people The legislature is the people

17 Arizona State Legislature v. Arizona Independent Court s reasoning Redistricting Commission Founding era dictionaries typically defined legislatures as the power that makes laws In Arizona, that includes the voters who may pass laws through initiatives The purpose of the Elections Clause was to empower Congress to override state elections rules not restrict how states enact legislation If state legislatures can override redistricting commissions, other voter-initiated election laws may be in jeopardy

18 Arizona State Legislature v. Arizona Independent What s next for state legislatures? Bigger loss in theory than in practice? Redistricting Commission Only Arizona (and California?) have independent commissions that entirely strip legislatures of redistricting authority State legislatures aren t likely to voluntarily exempt themselves altogether from redistricting so only voters in states with ballot initiatives can replicate the Arizona model Next term in Harris v. Arizona Independent Redistricting Commission the Court will decide whether the redistricting plan drawn up by Arizona s redistricting commission violates oneperson-one-vote

19 Cases that May Generate State Legislation/Action

20 North Carolina Board of Dental Examiners v. FTC All states have hundreds of boards and commissions many of which regulate professions through licenses and rules If a controlling number of state board members are market participants, the board must be actively supervised to be immune from antitrust law To comply with this 6-3 decision states may have to rewrite some laws and/or actively supervise boards

21 North Carolina Board of Dental Examiners v. FTC North Carolina Dental Board rid the state of all non-dentist teeth whiteners Per state law, six of its eight board members were actively practicing dentists FTC accused the Board of violating federal anti-trust laws The Board claimed it was immune from federal anti-trust laws per the state action doctrine

22 North Carolina Board of Dental Examiners v. FTC Parker v. Brown (1943) grants states and state actors immunity from federal antitrust liability States may grant non-sovereign entities state action immunity if the clear articulation and active supervision requirements are met When the state delegates control over a market to a nonsovereign actor, such as a board controlled by market participants, supervision by the state is necessary to avoid anticompetitive self-dealing

23 North Carolina Board of Dental Examiners v. FTC States have four options Reduce the number of market participants on boards may require a change in the law Actively supervise boards more likely to require a change in practice Forgo state action immunity Eliminate boards All attorneys general were asked what they are doing to comply with the ruling What are your states doing?

24 Glossip v. Gross Death penalty case Bottom line is simple States may use midazolam as part of the lethal injection three-drug protocol Everything else about this case is complicated

25 Glossip v. Gross All death penalty states and the federal government use lethal injection In Baze v. Rees (2008) the Court approved a three-drug protocol that begins with a sedative, sodium thiopental, followed by a paralytic agent, and a drug that causes cardiac arrest Anti-death penalty advocates have persuaded United States and foreign manufacturers to stop producing sodium thiopental An Oklahoma execution is botched; the state increases the dose of midazolam

26 Glossip v. Gross Does use of midazolam violates the Eighth Amendment prohibition against cruel and unusual punishment because it fails to render prisoners insensate? Prisoners failed to identify a known and available alternative method of execution The inmates experts acknowledged that no scientific proof establishes that a 500- milligram dose of midazolam would not render a person sufficiently unconscious to not feel pain Midazolam may have a ceiling effect, where an increased dose produces no more effect, only speculative evidence suggests that it renders prisoners insensate to pain

27 Glossip v. Gross The controversies Ginsburg and Breyer want full briefing on whether the death penalty is constitutional Other dissenters basically say if appropriate drugs aren t available the death penalty is unconstitutional No courtesy fifth vote to stay one of the executions Legal nerd point: anti-death penalty scholars are up in arms about the Court putting the burden of proof on the inmate to find another drug How did we get to a point where non-medical state officials can essentially experiment with lethal injection cocktails, and a lay plaintiff has to show a lack of viable alternatives to his own execution in order to successfully protect an enumerated fundamental right?, Steven D. Schwinn, SCOTUSblog

28 Walker v. Texas Division, Sons of Confederate Veterans, Inc. Court holds 5-4 that states may refuse to allow images of the Confederate flag on license plates No Western states have Confederate flag plates; but you may want to exclude other messages

29 Walker v. Texas Division, Sons of Confederate Veterans, Inc. So many interesting things about this case 5-4 Did not turn out as expected Was a more pop culture interest than I expected Happened right before the shooting in South Carolina tied to the Confederate flag Roberts Court likes more speech generally; this is a decidedly less speech case Was decided the same day as the sign case which is a more speech case Court did not take (arguably?) more controversial abortion license plate case

30 Walker v. Texas Division, Sons of Confederate Veterans, Inc. Specialty license plates are government speech per Pleasant Grove City v. Summum (2009) Just as governments have a long history of using monuments to speak to the public, states have a long history of using license plates to communicate messages Just as observers of monuments associate the monument s message with the land owner, observers identify license plate designs with the state because the name of the state appears on the plate, the state requires license plates, etc. Texas maintains control over messages conveyed on specialty plates and has rejected at least a dozen designs, just as the city in Summum maintained control monument selection

31 Walker v. Texas Division, Sons of Confederate Veterans, Inc. Legal nerd slide: Government speech is at its infancy as a legal doctrine Summum is really the only other case Alito wrote the majority in Summum and dissented in this case; Justice Breyer concurred in Summum but doesn t seem skeptical here Implications of this case are well beyond license plates: How could a city government create a successful recycling program if officials, when writing householders asking them to recycle cans and bottles, had to include in the letter a long plea from the local trash disposal enterprise demanding the contrary? How could a state government effectively develop programs designed to encourage and provide vaccinations, if officials also had to voice the perspective of those who oppose this type of immunization?

32 Walker v. Texas Division, Sons of Confederate How are states responding? Veterans, Inc. According to the New York Times nine states Alabama, Georgia, Louisiana, Maryland, Mississippi, North Carolina, South Carolina, Tennessee and Virginia allow Confederate flag specialty plates Washington Posts reported governors of Virginia, North Carolina, Maryland and Tennessee say they favor taking the Confederate flag off state specialty license plates Who exactly decides in your state what goes on these plates?

33 And Now the Rest!

34 DMA v. Brohl Federal jurisdiction case Quill Corp. v. North Dakota (1992) prohibits states from forcing retailers with no instate physical presence to collect and remit state sales taxes Colorado makes online retailers who don t to collect sales tax comply with notice and reporting requirements designed to make it easier for purchasers to pay taxes (and for the Department of Revenue to know who owes taxes) Question: Should this case be barred from being brought in federal court? SLLC files an amicus brief saying yes; Supreme Court rules no 9-0

35 DMA v. Brohl Justice Kennedy s concurrence I was wrong in Quill We were wrong in Quill Please bring us a case allowing us to reconsider Quill Cites information from the SLLC s brief What s next? One of three tax cases

36 Armstrong v. Exceptional Child Center Medicaid providers cannot rely on the Supremacy Clause to sue states to enforce a Medicaid reimbursement statute Another 5-4 decision Another Supreme Court do over Another case with implications well beyond the particular case before the Court Entire case is for legal nerds

37 Armstrong v. Exceptional Child Center 42 U.S.C. 1396a(a)(30)(A) requires state Medicaid plans to assure that Medicaid providers are reimbursed at rates consistent with efficiency, economy, and quality of care while safeguard[ing] against unnecessary utilization of... care and services Medicaid providers sued Idaho claiming that its reimbursement rates for rehabilitation services were lower than (30)(A) permits Statute creates no private right of action (no mechanism to sue) What about Supremacy Clause? (United States Constitution, federal statutes, and treaties are "the supreme law of the land )

38 Armstrong v. Exceptional Child Center [The Supremacy Clause] instructs courts what to do when state and federal law clash, but is silent regarding who may enforce federal laws in court, and in what circumstances they may do so The constitution s preratification historical record does not indicate that the Supremacy Clause creates a private right of action And [i]f the Supremacy Clause includes a private right of action, then the Constitution requires Congress to permit the enforcement of its laws by private actors, significantly curtailing its ability to guide the implementation of federal law

39 Armstrong v. Exceptional Child Center What s next for unhappy Medicaid providers? Complain to the Secretary of HHS who can withhold federal If withholding funds does not work, HHS may be able to sue a State to compel compliance If that doesn t work providers could ask HHS to interpret its rules to [providers] satisfaction, to modify those rules, to promulgate new rules or to enforce old ones If that doesn t work, providers could seek judicial review of HHS s refusal and ask the court to compel agency action unlawfully withheld or unreasonably delayed

40 Armstrong v. Exceptional Child Center This would have been a really big deal had this one gone the other way And not just in the context of Medicaid The Supremacy Clause would have provided a cause of action for every federal statute that arguably conflicts with state law

41 Is this a Liberal Term? On the surface of this yes dig a little deeper maybe not SSM had a liberal outcome Liberal outcome may have more to do with the mix of cases Have some conservative doctrines just reached their limit? One thing is inarguable: Much dissension among the conservatives this term

42 Sneak Peak at Next Term Affirmative action is back on the docket Fisher v. University of Texas at Austin its back! Big capital term (already!) Three cases and a life in prison no parole case Redistricting case (so far) is the show stopper Evenwel v. Abbott total population v. total voter population ERISA preemption case states are interested in Gobeille v. Liberty Mutual Insurance Company 16 other states will be affected Sleeper: state court jurisdiction Franchise Tax Board of California v. Hyatt