UPDATE: The D.C. Circuit Court decision at issue in this case can be read here. The order denying en banc review, together with opinions issued along with that order, can be found here.
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In a flurry of activity at a pace unusual for a government agency, the U.S. Environmental Protection Agency in a span of less than six months reeled off a series of rulings that brought a major expansion of federal policy aimed at curbing global warming — one of the Obama administration’s highest domestic priorities.
Finding greenhouse gases to be a major cause of heating up the planet, the EPA drew up a series of regulations that now pose a major analytical challenge – and a pile of reading — for the Supreme Court. A foot-high stack of legal papers is on file and is still growing. The Justices won’t get at this until summer time, but when they do, it will not be easy to sort it all out.
Curiously, the nine pending petitions could either turn into one of the biggest regulatory cases the Court has had in years, or could go nowhere because of the argument that the Supreme Court has already all but resolved the dispute. EPA’s new rules have an interlocking character that makes it seem that they followed almost predictably from a decision by the Court six years ago.
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Monday’s orders and opinions continue to generate coverage and commentary.
At this blog, Allison Christians analyzes the decision in PPL Corp. & Subsidiaries v. Commissioner, in which the Court unanimously held that the United Kingdom’s “windfall tax” is creditable against a company’s U.S. income tax liability. Ilya Shapiro also covers the case at Cato@Liberty. Also at this blog, Ronald Mann analyzes the opinion in Sebelius v. Cloer, another unanimous decision in which the Court held that an untimely National Childhood Vaccine Injury Act petition may qualify for an award of attorney’s fees if it is filed in good faith and there is a reasonable basis for its claim. Continue reading »
The petition of the day is:
12-1159
Issue: Whether the Indiana statute that disqualifies a health care provider from participating in a government program because, outside that program and with wholly private funds, it provides abortion care imposes an unconstitutional condition in violation of the Fourteenth Amendment to the United States Constitution.
I previously have written that the argument in Sebelius v. Cloer presaged a likely defeat for the Solicitor General. Justice Sotomayor’s opinion yesterday firmly rejecting the government’s position was exactly what you would have expected based on the argument.
Opinion author in red.
The case involves a most unusual statutory scheme that provides no-fault compensation for individuals who suffer adverse reactions after taking a vaccine. A claimant who suffers a covered injury seeks relief by filing a petition with the Secretary of Health and Human Services (currently the petitioner, Kathleen Sebelius). The petition is adjudicated by a special master and reviewed by the Court of Federal Claims; all appeals go to the Federal Circuit. Awards come from a fund generated by a small tax on vaccines covered by the program. Among the other oddities of the program, the statute provides that the fund will pay attorney’s fees for all petitions (meritorious or not) filed in good faith and with a substantial basis.
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Allison Christians is the H. Heward Stikeman Chair in Tax Law, McGill University
Employing what Justice Thomas calls a “commonsense approach,” yesterday the Court unanimously decided in favor of the taxpayer with respect to the creditability of a foreign tax in PPL Corp & Subsidiaries v. Commissioner.
Opinion author in red.
The Court held that PPL Corp., a U.S. company that owned a large interest in a U.K. energy company, is allowed to credit against its U.S. income tax an amount paid as a “windfall tax” to the U.K. government in 1997. The ruling reverses the judgment of the U.S. Court of Appeals for the Third Circuit, and sides instead with the Tax Court and the decision of the U.S. Court of Appeals for the Fifth Circuit in Entergy Corp. & Affiliated Subsidiaries v. Commissioner,.
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Yesterday the Court released orders from its May 16 Conference, granting cert. in five new cases; it also issued four opinions in argued cases.
In Metrish v. Lancaster, the Court unanimously held that a state prisoner who was convicted of first-degree murder was not entitled to federal habeas relief when state courts precluded him from relying on a “diminished capacity” defense that had been available at the time of the murder. At this blog, Lyle Denniston notes that “[t]he decision, while interpreting generously the power of a state supreme court to cast aside a string of lower state court rulings allowing a legal defense, did not appear to make much new law on retroactivity doctrine.” Other reports come from Kent Scheidegger at C&C Blog and Jaclyn Belczyk at JURIST.
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John Elwood reviews Monday’s relisted cases.
If you’re reading this post, presumably your early retirement plans didn’t pan out either, meaning you’re probably not in Jamaica preparing for a fulfilling life of lobster shooters and mountains of ganja piña coladas. But luckily, for the rest of us, there’s still Relist Watch, which is now empirically proven to be of at least some marginal utility to your life – to wit, of the five cases granted yesterday, four were featured in last week’s post, giving us the same authoritative heft as sugarless-gum-recommending dentists. (Meanwhile, Tumblr had zero. Just sayin’, Marissa.)
Break out the Sarbanes-Oxley treatise: The grant in “one-time” relist Lawson v. FMR, 12-3, means the Court will soon be considering the First Circuit’s narrow interpretation of SOX’s employee-retaliation protections. And you can hear the sound of Bouzouki and breaking plates all the way in Athens following the cert. grant in one-time relist Town of Greece, New York v. Galloway, 12-696, which considers the propriety of a town council’s legislative prayers. Opa! (Sadly, it looks like summer school for fellow Establishment-Clause-case Elmbrook School District v. Doe, 12-755, which after six relists appears now to be on hold for Greece.) Celebrations are probably a little more subdued over on the Left Coast following the grant in one-time relist Fernandez v. California, 12-7822, which asks whether an absent co-tenant’s prior refusal invalidates a physically present co-tenant’s consent to a search. So liberally were the grants given yesterday that even released holds got a star turn: Northwest, Inc. v. Ginsberg, 12-462, which was released from its slumbers just last week following the opinion in Dan’s City Used Cars, Inc. v. Pelkey, 12-52, is now on the Court’s merits docket, meaning we might soon know whether the Airline Deregulation Act preempts certain kinds of disputes over frequent-flier miles and their promises of free fares, fine refreshments, and a curtain between you and the huddled masses.
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The petition of the day is:
12-895
Issue: Whether the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2, requires proof of (i) intentional facilitation or encouragement of the use of the firearm, as held by the First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits, or (ii) simple knowledge that the principal used a firearm during a crime of violence or drug trafficking crime in which the defendant also participated, as held by the Sixth, Tenth, and District of Columbia Circuits.
Analysis
Amid signs that the ruling was a very easy one to reach, the Supreme Court on Monday allowed the state of Michigan to deny a man accused of murder a legal defense that he previously had but then lost the right to use at a second trial. Allowing the withdrawal of a mental defect defense after the fact, the Court ruled unanimously, did not violate the man’s constitutional rights to fair treatment. It took the Court less than four weeks to prepare that ruling.
Justice Ruth Bader Ginsburg wrote for the Court in Metrish v. Lancaster (docket 12-547), a case that had been argued on the final hearing day of the Term, on April 24. The decision, while interpreting generously the power of a state supreme court to cast aside a string of lower state court rulings allowing a legal defense, did not appear to make much new law on retroactivity doctrine. Continue reading »
Returning for the first time in three decades to the constitutionality of saying prayers at the opening of a government meeting, the Supreme Court on Monday took on a case involving Town Board sessions in the upstate New York community named Greece, a city of about 100,000 people. For years, it followed the practice of having local clergy — mostly leaders of Christian congregations — recite prayers to start Town Board public meetings.
The case of Town of Greece v. Galloway (docket 12-696) was one of five newly granted cases, all of which will be heard and decided in the Term starting next October. No current member of the Court was serving when the Court last ruled on government prayers in the case of Marsh v. Chambers, in 1983.
The Chief Justice announcing orders (Art Lien)
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