Yes, there is an election on November 3rd, but the Supreme Court soldiers on. Here is a brief synopsis of their November oral argument schedule.
Monday, November 2nd
US Fish and Wildlife Service vs. Sierra Club
This case started in 2011 when the EPA devised new rules regarding water intake to cool industrial processes. As part of the process of changing the rules, the Fish and Wildlife Service were consulted regarding endangered species. According to the record, consultations were held culminating in 2013 with changes to the rules based on a biological impact statement. Although the Sierra Club lost their attempt to block the rule change, they continued their suit, this time under the Freedom of Information Act demanding that the “deliberative” documents be made public. The government argues that the documents are “privileged” (because they are deliberative) and, therefore, not subject to the FOIA.
Salinas vs. US Railroad Retirement Board
A procedural case that asks whether a the Board’s denial to reopen a previous denied request regarding benefits is a “final determination” subject to judicial review.
Tuesday, November 3rd
Jones vs. Mississippi
This is an Eighth Amendment case involving a juvenile, Brett Jones, who stabbed to death his paternal grandfather. He was 15-years-old at the time. After the jury rejected his self-defense claim, he was convicted of murder and sentenced to life in prison, the mandatory penalty under Mississippi law. This case comes down to whether Brett Jones is legally “incorrigible” which would justify a life sentence. In assessing incorrigibility, sometimes mitigating and aggravating circumstances are considered. Jones is basically arguing a “trial error” and that for one to be incorrigible, they must be beyond rehabilitation. The Mississippi courts did make that determination.
Borden vs. United States
Charles Borden pleaded guilty to being in possession of a firearm. The government contends that because of a reckless aggravated assault conviction in Tennessee, it qualified as a violent felony under the Armed Career Criminal Act, and that he should be sentenced to 15 years. Borden claims that a charge of “reckless” does not qualify as a “violent felony” within the meaning of the law.
Wednesday, November 4th
Fulton vs. City of Philadelphia
This is a major religious liberty case this term. In a nutshell, Catholic Social Services (CSS) contracts with Philadelphia to place foster children in homes. As part of the screening process, CSS has a policy, based on catholic doctrine, not to place children in same-sex parent households. City Council passed a resolution directing their city’s Department of Human Services to review their contracting guidelines and in 2018 they stopped contracting with CSS claiming they discriminated against same sex couples. Plain and simple, they cut off contracts merely because of CSS’s policy based on religious doctrine. Fulton herself has fostered over 40 children over 25 years with no complaints. Clearly, CSS was doing a good job finding foster parents. The city argues that the contract with CSS expired in 2018 and the only question is whether the existing policy is unconstitutional. They further that CSS has an option: either do nothing, or enter into a contract under their terms. AS this writer sees it, the city, in their zeal to protect gay rights, trampled on the religious rights of an organization that the city admits did exemplary work.
Monday, October 9th
Niz-Chavez vs. Barr
This is one of several immigration cases the Court will hear this term. At issue is the “stop-time rule.” This stops noncitizens from accruing time in the United States needed to avoid discretionary deportation. Under the law, time “stops” once the non-citizen is served notice. The Court must decide whether that notification must be provided in a single document, or whether the government can trigger the rule in a series of documents over time. At first glance, it appears like a nothing case, but illegal immigrants game the system which is why the “stop time” rule was instituted in the first place.
Brownback vs. King
This is a case of two law officers- one a local police officer and one an FBI agent- who misidentified someone as a wanted fugitive (King). Believing he was being mugged, he was eventually caught after a struggle. The local police charged him with a series of crimes and he was acquitted. He then sued the officers, but because of sovereign immunity, he case was foreclosed. However, the appeals court disagreed and allowed King’s case to go forward. It is a little more complicated and involves state tort laws versus federal tort statutes.
Tuesday, November 10th
California vs. Texas
This is the case the Democrats wasted so much time telling Americans they were going to lose their health insurance. It is one of the many reasons they opposed the nomination of Amy Coney Barrett. At issue is Obamacare, but the real issue is something called severability. The Court must determine if a provision of the law is found to be unconstitutional, do they strike down only that provision and leave the rest standing? What if there are other provisions linked to the offensive provision? Should the entire statute be struck down?
The provision in this case is the individual mandate to purchase insurance. Under the 2017 Trump tax cuts, the tax penalty was zeroed out. The mandate was central in the previous major Obamacare case- NFIB vs. Sebelius- where Roberts tied himself in knots. Although the mandate was considered (according to five Justices) unconstitutional under the Commerce Clause, it passed muster under the Taxing Clause. The challengers argue that the mandate is no longer a tax without the penalty and has no constitutional basis.
Enter severability clauses. Many statutes have such clauses stating that if something is found wrong in one part, the other parts stand. Obamacare lacks such a clause.
This will be a complicated and difficult case to rule upon. One should keep an eye on and ear out for Justice Kavanaugh here since in the past he was written that there is a presumption of severability whether Congress writes the clause into the law or not. On the other hand, Texas and the DOJ rely upon a paragraph in the law stating that the mandate was essential to making sure effective health insurance market reforms took place. The plaintiffs argue that Congress had the opportunity to eliminate the mandate legislatively in 2017, but did not do so and further that the Commerce Clause arguments are irrelevant.
In essence, the convoluted reasoning of Roberts is coming back to bite him in the ass this term. Absent the tax penalty, the mandate is just words on a piece of paper. Absent the mandate’s enforcement through the tax code, there can be no means of “persuasion” for people to purchase health insurance. The whole idea behind the never-materialized market reforms was more people in the pool. Hence, the argument goes, with a toothless mandate, the rest of the law falls apart.
We shall see how this one turns out. Extra oral argument time has been added given the complexity of the case. Of course, they first have to get through the issue of standing, always a tricky thing, and which Roberts sometimes employs to avoid the bigger questions.
That’s it for November. Come December, there is a major separation of powers case looming.