The Supreme Court- Week of October 22nd

The Supreme Court is currently quiet as concerns oral arguments and will next hear cases beginning on November 4th. That is not to say that its members have dispersed to parts unknown. Next week, they will reconvene on Friday November 1st during their weekly conference to consider more cases. The Court has room for about 20 more cases. They have heard oral argument in 11 cases thus far in October with one being dismissed as “improvidently granted.” Last week, they granted two new cases. One deals with the issue of the parameters of mental retardation and the death penalty. At issue is whether the Florida scheme- a bright line determination- is constitutional. The case involves the conviction of a person in 1978 with an IQ of 71. Florida law prohibits the execution of anyone with an IQ below 70. In previous cases, despite the ban on the execution of the mentally retarded, the definition of retardation was left to the states. Technically speaking, anyone with an IQ below 95 can be considered “retarded.” But, there are functional individuals with an IQ between 71 and 99. Previous decisions determined that IQ should be one factor among others to determine whether the person is “retarded,” and cannot be executed.

The other granted case involves restitution issues in an alleged bank fraud case. In a third case, the Court asked for the view of the Solicitor General. This case involves the authority of American courts to punish foreign banks when they refuse to divulge certain information which is protected by bank secrecy laws. The bank in question, Arab Bank, Inc., allegedly is linked to financing terrorist organizations around the world. Once the Solicitor General submits their view, they will decide whether to take the case or not.

As for the November docket of cases, I will be detailing some cases next week. Perhaps the most watched case will be the one involving public prayer before a city council meeting and that case will receive its own entry.

As mentioned in a previous article entry, the Supreme Court actually granted, then consolidated, six petitions from various groups challenging EPA guidelines over the regulation of greenhouse gases which allegedly cause climate change, or global warming. However, the Court is asking a single question: whether the EPA exceeded its statutory authority in regulating stationary sources of greenhouse gases when a previous ruling (EPA vs. Massachusetts) allowed the EPA that authority in relation to non-stationary (cars) sources. Most of the petitions originally dealt with the minute details of the regulatory process and whether the EPA followed their own guidelines, or guidelines set forth in other laws, when promulgating their regulations. The case has not been scheduled for oral argument, but given its importance, it will be closely watched and debated as the case nears.

Also, the Court is still waiting to hear from the Oklahoma supreme court in a previously granted case which involves the use of RU-486, the drug used to induce abortions. Generally speaking, federal courts defer to state courts in the interpretation of state laws. Quite frankly, the law is not worded intelligently and could lead to bans on the off-label use of any drug prescribed within Oklahoma’s borders. This would go against medical practice. Equally stupid was the treatment of the appeal by the Oklahoma supreme court. Thus, the Supreme Court left itself an outlet not to hear the case after granting it should the state supreme court articulate a clear interpretation of the Oklahoma statute in question. Regardless, if the Court hears the case, it is unlikely to set any groundbreaking rules although it will be watched for its legitimacy as an anti-abortion tactic at the state level.

A recent decision out of the Third Circuit in Philadelphia involving the Fourth Amendment may very well reach the Supreme Court relatively soon. It includes the use of GPS tracking devices placed on vehicles. Previously, the Court determined that such actions were a “search” and thus fell under the 4th Amendment. However, they left open whether law enforcement can actually use the technology in criminal cases. The Third Circuit determined that such “searches” require a warrant. This law enforcement action took place before the Court decided United States vs. Jones and the FBI and Pennsylvania state police are arguing a “good faith” exception to the warrant requirement which the Third Circuit dismissed. Since other Circuits have accepted the “good faith” exception for actions prior to the Jones decision, there exists a split among circuits which is often a good rule of thumb for determining whether the Supreme Court will grant the case review.

Another case out of the Second Circuit in New York may also very well reach the Court this term. It is ABC vs. Aereo which is a Brooklyn based company which uses a series of small antennas to pick up over-the-air television broadcasts then retransmits them to Aereo subscribers. Aereo charges considerably less than cable or satellite television providers since they provide subscribers with their own antenna to receive the transmissions. ABC and the television industry argues that these low fees are possible because they do not have to pay copyright fees to the makers of television shows. Many other companies that negotiate fees with the original broadcasters may pull out of those agreements and restructure their companies along the lines of Aereo the television idustry fears. As a result, they argue the entire scheme goes against the text of federal copyright laws. The Second Circuit determined that because the captured transmissions were not legally and technically “public performances-” thus, not afforded copyright protection- federal copyright laws did not apply. A decision here, should the Court grant this case, has the potential to seriously alter the “streaming television” industry.

Most importantly as concerns recent current events, there are a couple of challenges to Obamacare still percolating in the lower courts that may reach the Court this year or possibly next year at the latest. One major area involves the provision of federal tax subsidies and credits for Obamacare. Under Section 1311 of the law, the IRS is authorized to issue tax credits and subsidies for those purchasing insurance on state-run exchanges. The federal exchange was not established by, nor is it run by a state. Obviously, Congress intended for the states to establish the exchanges. But, this intent was based on a false assumption that the states would simply play along and do so. Several did not. Because of this, the federal government stepped in and now, in direct contravention of the statutory text of Obamacare, are providing the credits and subsidies. In effect, the IRS rule rewrites a law passed by Congress. Naturally, the practical effect, should the anti-Obamacare parties prevail, would be that no one will utilize the federal exchange since they would be ineligible for the tax credits or subsidies. Under Section 1311, they are available only to those who obtain health care insurance from state run exchanges. If nothing else, this case illustrates what happens when legislation is not read prior to passage and one subscribes to the Pelosi dictum: “let’s pass it to see what is in it.” District Judge for DC, Paul Friedman, recently rebuffed an Obama administration plea to dismiss the case. In fact, this is one of four cases challenging the IRS rule and Section 1311. Earlier, a district judge in Oklahoma turned aside a similar Obama administration request to dismiss making Obama 0 for 2 in these cases. Friedman’s decision now allows for briefing on the issues and he has promised to rule on the merits of the case no later than February 15, 2014. Most likely, the administration will then go forward in the lower courts to delay a quick appeal to the US Supreme Court.

The Supreme Court asked for the government to weigh in on a few Obamacare petitions pending before them. In one, they urged the Court to deny a grant to a Liberty University challenge against the individual and employer mandates. Most likely, the Court will deny that case. However, it did argue that the Court take the Sebelius vs. Hobby Lobby case out of the Tenth Circuit. At issue is the mandate on employers that they provide health insurance if they have more than 50 workers and that this insurance cover a host of reproductive health issues and screenings including contraceptive devices and services. A number of non-profit, religious organizations are clearly exempt from the mandate. However, for-profit businesses are not, even if the owners of that business hold religious views that oppose contraception. Thus, the core issue is whether business owners operating a for-profit business can exercise their “religious rights” in how they run their business, including what they are willing to cover in health care plans for their employees. The Tenth Circuit concluded that firms are capable of having religious views and expressing those views in the way they run their companies. Thus, anything that interferes with this runs afoul of the Religious Freedom Restoration Act (RFRA). The Obama administration’s brief arguing review of this case by the Supreme Court addresses only this law, not the First Amendment issues also evident.

What makes this case most likely to be taken this term is threefold. First, the case has been litigated in the lower courts to the disadvantage of the federal government. Conversely, a similar case out of the Third Circuit- the Conestoga Wood case- that court came to the opposite conclusion. In their response for a view on the Conestoga Wood case, the Obama administration urged the Supreme Court to hold the case pending the outcome of the Hobby Lobby case. So, right off the bat we have a split among circuits on identical issues which increases the chance the Court will take the case. Second, Hobby Lobby won in the lower courts. Generally, a winning party would not argue for the Supreme Court to take the case fearing the Court would negate their victory. But in this case, Hobby Lobby did the opposite and argued that the Supreme Court should take the case not only to resolve the differences between the circuits, but also because without Supreme Court definitive action now, these cases will continuously pop up with differing results depending in which circuit the business is located. Third, the Obama administration obviously lost the case in the 10th Circuit and is the obvious party to want the Supreme Court to reverse that decision and agree with the Third Circuit’s interpretation. However, the fact that they urge review and further urge review only under the RFRA is indicative of the fact they believe there may be First Amendment constitutional issues present here. When the Court likely takes this case, it will be interesting to see how the questions presented to the parties will be worded.

The Hobby Lobby case will likely be granted and heard this term. The tax subsidy/credit cases have yet to be fully litigated in the lower courts. Should it come before the Court, the docket will likely be full for a hearing this term. Because no injunction was granted against the subsidies and credits, they can technically go into effect. However, given the uncertainty of their future legitimacy, it certainly throws a monkey wrench into any formula people may be dependent upon to determine if they are eligible.