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Contraceptive

Summer Sequels and Coming Attractions

by: tmess2

Mon May 26, 2014 at 17:13:20 PM EDT

Everybody loves a good sequel.  Hollywood and the publishing industry love sequels and have the formula down to a science.

The Supreme Court appears to love a good sequel too.  In twenty-eight years since the Supreme Court made it more difficult to discriminate in jury selection, they have taken up almost twenty cases to fill out the details of how that new rule would work in practice.  Similarly, almost ten years ago, the Supreme Court decided to return to the original rules on when an out-of-court statement violates a defendant's right to confront witnesses.  Over the past ten years, the Supreme Court has heard six cases (and will probably add a seventh case for next term) to figure out how those rules apply to the modern criminal justice system.

Among the cases left on the docket are two very big sequels -- both of which are likely to become major issues in the fall races.

The first of the two is the Employer Mandate cases dealing with the requirement that the insurance policies available to employees must include coverage for contraceptives (a sequel to the 2012 decision upholding the Affordable Care Act).  Especially, as seem likely, if the Supreme Court decides this case by applying the Religious Freedom Restoration Act rather than the Free Exercise Clause, the decision will be an easy weapon for both sides in the fall races.  If the employees and the U.S. government win, the decision becomes Exhibit A in the fictional "War on Religion" that Faux News tries to push.  If the businesses win (especially if it is the five Republican appointees against the four Democratic appointees), it is another example of the Republican War on Women (which is less a war than the indifference of Republicans to the difficulties that women face).

The more interesting case is the Climate Change cases.  Back in 2007, the Supreme Court found that the Bush administration was not following the Clean Air Act by ignoring the impact of carbon dioxide and other greenhouse gases on climate change.  Since then, the Supreme Court in a first sequel ruled that any regulation had to be through the Clean Air Act, not through a common law nuisance action.  Now, in the second sequel, the Supreme Court is examining part of the regulations -- particular the part that impacts power plants and coal.

Since the first ruling, the Republicans have tried to push the meme of a war on coal.  This fall, two key Senate races (West Virginia and Kentucky) will take place in states with a significant coal industry.  How, the Supreme Court determines the Climate Change cases could have a potential impact on these races.  The exact issue in the current case is whether the regulations adopted by the EPA are justified by the Clean Air Act -- specifically whether the finding that carbon dioxide (and related gases) are a pollutant for the purposes of regulating cars also means that they are a pollutant for the purposes of power plants.

There are three possible results in this case.  First, the Supreme Court could find that the EPA is correctly applying the Clean Air Act, and that, if anything, it has cut industry a break by phasing in the new regulations.  Second, it could find that the EPA, while not compelled to go as far as it has, is still reasonably interpreting the statute.  Finally, it could find in one or more ways that the EPA has departed from the statutory language. 

From the point of view of the Democratic candidates in Kentucky and West Virginia (both state officials), the best possible result is the first option -- a holding that the EPA is merely doing what the Supreme Court ordered back in 2007.  In this scenario, there is an argument that the EPA has had no choice or discretion in the matter and that the problem is not that the EPA is anti-coal but that the current law is anti-coal.   In this argument, while it probably was not possible to completely prevent some negative impact on the coal industry, there have been proposed amendments to the Clean Air Act that might have postponed the worst of the impact and given the coal industry time to adjust -- amendments that went nowhere largely because Mitch McConnell blocked them in the Senate (and Shelley Capito joined with her fellow Republicans to oppose them in the House).  The question for the fall is whether Democrats in coal states can convince the voters that Republican obstruction of moderate compromise on the Clean Air Act is the equivalent of Nero fiddling while Rome burned.  Control of the Senate may turn on this issue. 

Discuss :: (0 Comments)

Supreme Court Term 2013-14: Outstanding Cases

by: tmess2

Sun May 18, 2014 at 22:31:22 PM EDT

It's that time of year again.  The Supreme Court is done with arguments and will be spending the next six weeks issuing opinions (as well as finalizing the cases to be heard this fall).  This year, the Supreme Court heard arguments in seventy cases.  So far they have decided forty cases and have thirty remaining.  We will probably get 3-4 opinions per week for the next three weeks at which point the remaining cases will come in a flood (including most of the major cases not yet decided).

Most of the cases from last fall have been decided.  The biggest case remaining (probably being written by Chief Justice Roberts) is in many ways a small case that has become much bigger than it should be.  The case is Bond v. United States back for a second time at the Supreme Court.  The case involves a poisoning, but the local federal prosecutor decided to charge a federal offense under a statute implementing the Chemical Weapons Convention.  By opting to charge a federal offense (rather than letting the state prosecutors handle the case as a state offense), the federal prosecutor has created a major dispute over whether a the US can use a treaty to expand federal power.  The easy out in the case would be for the Supreme Court to narrowly interpret the statute to not reach the charges in this case.  The other two cases from the fall involve the ability of a child to get residence status under U.S. immigrations law if that "child" becomes an adult while on the waiting list and the scope of the federal authority to regulate casinos run by Native Americans if those casinos are located outside of tribal land. 

 

The winter cases (January and February) are only half-decide (ten cases remaining out of nineteen arguments).  Because of the number of cases remaining, it is too soon to tell which justices might have these cases.  There are still three big cases from January.  The biggest is the Noel Canning case on the scope of the recess appointment power. Whichever side wins may well regret it when, at some point in the future, control of the White House flips.  For now, conservatives are arguing that the President can only fill a vacancy during the recess between the end of the session in the fall of one year and the first meeting of the following session in January and only if the position becomes vacant during that recess.  Also outstanding from January is a case on the Massachusetts law creating a protest-free bubble around abortion clinics and mandatory unionization for home health care providers in Illinois (for the purpose of Medicaid reimbursements. 

The big case from February is the greenhouse gas case.  As noted in previous posts, the Supreme Court rejected most of the challenges to the regulations and is only considering a limited technical issue of statutory interpretation -- does the finding that these gases are pollutants for the purpose of the sections of the Clean Air Act governing motor vehicles also mean that they are pollutants for the sections covering power plants.  The other major case from February is a securities fraud case involving Haliburton (a/k/a the source of all evil).

There's More... :: (0 Comments, 660 words in story)


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