Ruling that the federal health care law’s mandate to buy health insurance is a law about a tax but not about raising government revenue, the U.S. Court of Appeals for the District of Columbia Circuit on Tuesday rejected a new constitutional challenge to that key part of the Affordable Care Act.  The three-judge panel’s decision in Sissel v. Department of Health & Human Services can be read here.

Because the mandate was not designed primarily to bring in money to the Treasury, the court of appeals concluded, it was not a revenue measure that, under the Constitution, must have its legislative start in the House of Representatives.  The decision also rejected a renewed claim that the individual mandate was invalid because it exceeded Congress’s power under the Constitution — a variation of a claim that the Supreme Court turned aside two years ago.

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Tuesday round-up

By on Jul 29, 2014 at 11:28 am

Some coverage of the Court focuses on recent decisions by the courts of appeals striking down state bans on same-sex marriage and the likelihood that the Supreme Court will take up the issue.  (Because the round-up only focuses on news relating to the Court, here and elsewhere we do not include coverage of issues such as same-sex marriage, the death penalty, and the challenges to the Affordable Care Act that are not focused primarily on the Supreme Court.)  In The New York Times, Adam Liptak looks at a concurring opinion in the Tenth Circuit, in which Judge Jerome Holmes indicated that “animus toward gay people had played no role in the ban” that the court of appeals was striking down; that statement, Liptak suggests, “may foreshadow a problem for gay rights advocates at the Supreme Court.”  Continue reading »

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Petition of the day

By on Jul 28, 2014 at 10:11 pm

The petition of the day is:

Ashley Furniture Industries, Inc. v. United States
13-1367
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, serves as counsel to the petitioners in this case.

Issue: (1) Whether a statute that denies a government benefit based on a recipient’s failure to express support for a proposed course of government action, is subject to, and survives, strict scrutiny under the First Amendment; and (2) whether, to successfully defend a viewpoint-discriminatory statute subject to intermediate scrutiny under Central Hudson Gas & Electric Corp. v. Public Service Commission, the government must prove that non-discriminatory measures would fail to satisfy the government’s interests.

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Arguing before the Supreme Court, watching United States v. Windsor play out, the emergence of procedural barriers to courts, how the Court has changed since Chief Justice Warren E. Burger, and how to talk about the Court.

In this six-part interview, Steven R. Shapiro, legal director of the American Civil Liberties Union (ACLU) since 1993, discusses his background; the ACLU’s history and mission; what civil liberties and Supreme Court advocacy look like now; and what civil liberties challenges we face next.

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UPDATE 6:10 p.m.  The attorney general of North Carolina said at a news conference following the ruling discussed below that his office would no longer defend his state’s ban on same-sex marriage, conceding that the Fourth Circuit decision had taken away all of the arguments that could be made for the ban.  However, in another state in the Fourth Circuit, South Carolina, the attorney general said his office would continue the defense of that state’s ban.

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Continuing the year-long, so far uninterrupted trend of court rulings against states’ bans of same-sex marriage, the U.S. Court of Appeals for the Fourth Circuit on Monday nullified the Virginia prohibition; the panel divided two to one.  This was the second federal appeals court to add its ruling to a lengthy string of district court and state court decisions reaching the same result.

Meanwhile, in Florida, a gay couple sought to move a test case directly to the state supreme court, bypassing a middle-level appeals court.  Their lawyers argued that “there is a need to bring finality to this issue on a statewide basis.” Continue reading »

The annual meeting of the American Bar Association, which will take place from August 8 through August 10 in Boston, will include several events of interest to Court watchers.  On August 8 this blog’s Rory Little will moderate a panel to review the Court’s criminal docket in the October Term 2013; more information about that panel is available here.  On August 10, Sports Illustrated analyst and law professor Michael McCann will moderate a panel to discuss federal regulation of sports betting in the wake of the Supreme Court’s order denying review in a group of challenges filed by (among others) New Jersey governor Chris Christie; more information is available here.  Other Court-related events include a review of the October Term 2013 featuring Linda Greenhouse and a panel on the impact of the Court’s 2013 decision in Shelby County v. Holder, holding unconstitutional the coverage formula of the Voting Rights Act, as well as a panel — featuring, among others, Laurence Tribe — on August 9 to discuss the implications of the Court’s recent Second Amendment decisions for gun control and gun safety.

 
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UPDATE:  July 28, 7:32 p.m.  The Washington, D.C., government and its police chief on Monday asked the federal judge in this case to postpone the decision that would allow the public carrying of handguns in the city.   The motion asked that the judge at least allow a delay while the city appeals, but also suggested a 180-day delay to allow the city council time to pass a new licensing law that would put some limits on public carrying of guns in the city.   The motion argued that, because of the nature of the city as the nation’s capital, it should be treated differently on the scope of gun rights.

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The nation’s last total ban on carrying a gun in public — a local handgun law in Washington, D.C. — has been struck down by a federal judge in a case that took almost five years to decide.  The ruling in Palmer v. District of Columbia emerged on Saturday — a day when federal courts seldom issue decisions.  The judge extended Second Amendment rights to have a gun so that they apply outside the home.

Written by a judge brought in from outside the city, the case had gained notoriety as the challengers to the D.C. law tried repeatedly to get a ruling, even asking a federal appeals court to step in to command that the case be decided.  The ruling came more than seven months after the appeals court refused to get involved, saying it was confident the district court ”will act . . . as promptly as its docket permits.”  Frustrated, the challengers renewed that plea in May, and that was still pending when the judge ruled.

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Petition of the day

By on Jul 25, 2014 at 10:11 pm

The petition of the day is:

Athena Cosmetics, Inc. v. Allergan, Inc.
13-1379

Issue: Whether, under Buckman Co. v. Plaintiffs’ Legal Committee, the Federal Food, Drug, and Cosmetic Act impliedly preempts a private state-law claim for unfair competition premised on a party’s purported failure to obtain Food and Drug Administration approval, where the Food and Drug Administration itself has not imposed any such requirement.

There has never been a shortage of books on the Supreme Court, and that tradition continues as evidenced by fifteen new or forthcoming works.  The new books cover a range of topics, from a critique of the current Court to an examination of the Court’s monetary decisions to books on how the traditional and electronic media cover the Court’s work.

If you missed it the first time around, you might be interested to know that H.N. Hirsh’s The Enigma of Felix Frankfurter (1981) has been reprinted in paperback and on Kindles by Quid Pro Books.

Speaking of Supreme Court Justices, Dan Ernst notes at the Legal History blog that Justice Hugo Black’s papers are available in the Manuscript Division of the Library of Congress. A listing of the documents is available online.  (We posted more information about access to the Justices’ papers last summer.)  And on a related front, the papers of Mark W. Cannon, the former administrative assistant to the late Chief Justice Warren Burger, are available at the Harold B. Lee Library at Brigham Young University.

With that all said, here are fifteen new or forthcoming works on the Supreme Court: Continue reading »

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This fall the Court will hear a case on the future of retiree health care. M&G Polymers USA v. Tackett asks a challenging question:  what language in a union collective bargaining agreement will cause health-care benefits to vest – that is, continue as long as the beneficiary remains a retiree?  Many employers and tens of thousands of retirees have an interest in the Court’s decision.  If benefits are vested, employers are obligated to provide them, regardless of future employer-union negotiations.  If not, they can later be modified or terminated.

In an experiment designed to explore how members of the Supreme Court bar can assist the Court, Goldstein & Russell has submitted an amicus brief in the case.  This is a “true” amicus brief, with no agenda or desire to advocate for a particular outcome.  Instead, the brief’s only goal is to provide the Court with factual information that may be useful in guiding its decision.

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