Category Archives: Judicial

A Partial Victory for Native Americans

By tmess2 | Published June 17, 2023

The history of the United States is full of broken promises to Native American.  For a rather long period of time (in a pattern repeated in other places like Canada and Australia), part of the attempt of the European settlers to eliminate Native Americans was a practice of, for all intents and purposes, kidnapping children and placing them either in boarding schools or adopting them out to White parents to be raised without any knowledge of their ancestral culture.

During the Civil Rights era, several steps were taken to remedy these past sins.  In part, the federal government strengthened the powers of tribal governments.  Congress also passed the Indian Child Welfare Act to prevent a repeat of the efforts of some groups to break the tribes by stealing their youngest members.  Of course, in the U.S. no law stays the same forever, and interest groups always try to push back against the laws that are on the books.  Ultimately, these disputes end up at the Supreme Court, and recent terms have seen an ever growing number of cases related to Native Americans.  This term was no different, and this week saw the U.S. Supreme Court decide two cases related to Native Americans.

The “minor” case — Lac du Flambeau Band of Lake Suprerior Chipewa Indians vs. Coughlin — involved the intersection between tribal government and bankruptcy law.  Like other governments, sometimes an individual who owes money to a tribal government will enter bankruptcy.  If a person owes money to a private business, that business is only allowed to take further steps to collect its debt through the bankruptcy court.  In this case, the debtor tried to have the bankruptcy court enforce the stay against the tribe.  Normally, governments (including the tribes) have immunity from being sued, but the bankruptcy code contains some exceptions.  By a 7-1-1 vote, the Supreme Court found that tribal governments are inclcuded in the limited waiver of immunity contained in the bankruptcy code.  The two who did not join the majority opinion were Justice Thomas and Justice Gorsuch for very different reasons.  Justice Thomas agreed with the majority that the tribe lacked immunity from being sued because the tribe was engaged in “commerical” rather than “governmental” activity and, therefore, would not have had immunity even without the provision in the bankruptcy code waiving that immunity.  Justice Gorsuch, however, would have found no waiver of immunity.  In this case Justice Gorsuch continued his pattern of being one of the foremost defenders of the tribes on the Supreme Court.  While this case was a “loss” for the tribes, it was a loss because the Supreme Court treated tribal governments as being equal to other governments. Continue Reading...

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Supreme Court — October 2022 Term — Update

By tmess2 | Published June 11, 2023

With one week down and three more to go, an updated look at where things stand.  Last week’s post gave some of the basics about reading Supreme Court hints about who might have which opinion.  The Supreme Court has added a second opinion day (Friday) for this upcoming week and the two weeks after that could include three days each with twenty-three cases left to go.

With the decision in the Alabama redistricting case, we now have all of the opinions from October.  As Justice Thomas did not have an October opinion, he is almost certain to have one opinion from November.  As noted last week, a big question mark for November is whether the two affirmative action cases will both produce a signed opinion.  (Because Justice Jackson is recused in the Harvard case, it is less likely that it will be one opinion for the two cases, but the Harvard case might produce an unsigned opinion.)  And depending upon what happens in the affirmative action cases and the student loan cases (which could also end up with only one signed opinion), that will determine whether any justices will have an “extra” opinion through February.

Assuming that we have five opinions coming from November, besides Justice Thomas, the other four justices who could have a November opinion are Chief Justice Roberts, Justice Alito, Justice Kavanaugh, and Justice Barrett.  Based on that line-up, it would be a shock if the Supreme Court upholds affirmative action in college admissions.  It is also an ominous sign for the Indian Child Welfare act case as that group is not known for its concern for Native American interests. Continue Reading...

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Voting Rights Act — A Glimmer of Hope

By tmess2 | Published June 11, 2023

On Thursday, the United Supreme Court issued its opinion in Allen v. Milligan,  a case in which Alabama voters challenged the state’s new congressional district lines under Section 2 of the Voting Rights Act.  As people may remember, due to COVID and the resulting delay in the 2020 census, Alabama completed its redistricting process shortly before filing began.  Although the voters quickly filed their case, and the three-judge panel quickly heard the challenge and issued its decision, a 5-4 majority decided that any change caused by any new lines issued by the judges would be too close to the start of the election process (but that the legislation changing the lines was not) for the judge-drawn lines to be used in the 2022 election.  So the 2022 election was held under the new lines drawn by the legislature while the U.S. Supreme Court decided whether those lines were valid.  In its ruling this week, five justices (with Justice Kavanaugh switching sides and Justice Jackson replacing Justice Breyer) upheld the trial court ruling.

To start with the legal considerations, Section 2 of the Voting Rights Act bars any voting practice or procedure that causes a protected group to “have less opportunity than other” groups “to elect representatives of their choice.”  While Section 2 also contains language disavowing an express requirement of proportionality, previous cases have found that Section 2 applies to redistricting and that it requires those bodies charged with redistricting to consider whether the maps give sufficiently large racial and ethnic groups a fair shot at electing a proportionate number of members.  Basically, this is done by drawing either “minority influence” districts (in which minorities are a large enough percentage of the voters that they can form a majority by aligning with like-minded non-minority voters) and “minority majority” districts. (in which the minority group is over 50% of the likely voters).

The current language in Section 2 was adopted in the early 1980s.  The first major case applying Section 2 to redistricting devised a three-part test.  First, the voters needed to show that minority voters are sufficiently concentrated that there is a reasonable map which would give them an additional minority influence or minority majority district.  In equal protection cases, the Supreme Court has made clear that maps that grossly violate traditional considerations to force geographically dispersed minority enclaves into the same district are forbidden.  Second, the voters must show that the minority group is politically cohesive.  In other words, that a significant majority sees itself as one group and tend to support the same type of candidate.  (For example, it might be harder to show that Asian voters are a group but easier to show that Vietnamese voters are a group.)  Third, the voters must show that the majority group (almost always white voters) will oppose the candidate supported by the minority group.   In other words, the last two parts require showing that racialized voting is still common in the jurisdiction. Continue Reading...

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Quick Hit — Redistricting and Voting Rights Act

By tmess2 | Published June 8, 2023

Today’s Supreme Court opinions included a 5-4 decision affirming a preliminary judgment invaidating the Alabama Congressional Districts under the Voting Rights Act.  We will have a more detailed analysis of the decision this weekend.  But the quick hit is that this decision will probably result in new lines in Alabama and Louisiana which will include a second African-American majority district in both states.

This decision partially offsets the impact of the weird, blatantly partisan, decision of the North Carolina Supreme Court to revert back to the original map after originally striking that map down, and New York might try to draw a new set of lines.  Thus, the state of play for the House is still up to further legislation action this fall.  But, today was a good day for a more representative House.

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Supreme Court — October 2022 Term — First Look at the Remaining Cases

By tmess2 | Published June 4, 2023

It’s the first full week of June.  And that means that the clock is rapidly ticking to the end of this year’s Supreme Court term.  By custom, the Supreme Court tries to issue all of the opinions from the term before the Fourth of July holiday.  (It then spends the last three months of the term handling emergency motions and preparing for the next term.)

As we look ahead, some basics about how the Supreme Court operates.  During the argument portion of the term, the Supreme Court holds seven “monthly” — October through April — argument sessions (not quite as sessions often occur partly in two months but that is the convention used to describe the sessions).  In each session, the court hears arguments on Monday, Tuesday, and Wednesday (with some days skipped for federal and religious holidays).  Then on Friday, they discuss that week’s cases (along with applications for review) and take a tentative vote on each case.  After the vote, the “senior justice in the majority” (either the Chief Justice or the longest serving Associate Justice in the majority if the Chief Justice is the minority) chooses which justice gets to write the first draft of the opinion.  Typically, the justices assigning the opinions try to assure a balanced assignment of cases within the session (i.e., if there were nine cases, each justice would get one opinion to write) and across the term as a whole.   When we reach this point of the term, we have enough opinions from individual argument sessions to try to guess who will have the opinion.

Starting with October, we are down to one outstanding case — the Alabama voting rights case.    The bad news is that there are only two justices without an opinion from October — the Chief Justice and Justice Thomas.  It is slightly more likely that the Chief Justice has the case   He tends to like writing election cases.  While both are very likely to write an opinion that would undermine the Voting Rights Act, Justice Thomas is more likely to want to write an opinion that reverses the decision entirely (with no further proceedings) and the Chief Justice is more likely to send it back to the trial court for further consideration (in light of a standard which allows Alabama to dilute minority votes) so there is a slim chance that the Chief Justice ended up on the wrong side of a 5-4 split.  But my hunch is a 6-3 opinion that ignores the plain language of the Voting Rights Act. Continue Reading...

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Legal Issues Related to the Debt Ceiling

By tmess2 | Published May 27, 2023

With the Republicans once again playing a game of chicken with the debt limit, there has been a lot of chatter about options that the Biden Administration has if the Republicans continue to make unreasonable demands.

To understand the legal issues, it is necessary to understand the different legislative actions related to the debt ceiling.  First, there are the laws related to the budget process.  There are two key aspects to these laws, the first requires Congress to annually pass a budget resolution.  The problem with this law is that one Congress is unable to bind a future Congress.  So Congress does not always pass a budget resolution.  The key thing to remember is that a budget resolution is a concurrent resolution which means that it has to pass both houses but does not go to the President.  In other words, it is not a law.  Instead, the impact of the concurrent resolution is internal to the legislative process.  The budget resolution sets the broad limits for the two Appropriations Committees in drafting the annual appropriations bills.   Additionally, if a budget resolution passes, the budget resolution triggers the reconciliation process which allows the Senate to pass budget related bills without having to overcome the filibuster.  A budget resolution (like the President’s budget proposal which starts the budget process) will typically contain estimates/target numbers for the other components of the budget.  The budget laws also restrict the ability of the President to refuse to spend or to reallocate the money allocated in the budget.

And here is where we get to the actual laws at issue.  In thinking of the budget, there are three types of laws.  In any budget, there are two sides of the equation:  1) income/revenue; and 2) expenditures.  For the most part, the laws on the income side of the equation are tax laws.  (There are certain other things like mineral leases on federal land and user fees at federal facilities, but the primary source of revenue is from taxes).  By its nature, revenue is not entirely predictable.  If every investor tomorrow decided that now was a good time to sell their current stock holdings and buy an entirely new stock, that decision would trigger a significant amount of capital gains and capital losses which in turn would dramatically alter the total income taxes received by the federal government.  But, while there is a degree of unpredictability, there is also a good amount of predictability — subject to changes in the economic climate. In other words, the revenue estimate for any given year will be close but not exact. Continue Reading...

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The Supreme Court and State Governments

By tmess2 | Published May 13, 2023

This year’s Supreme Court Term is now in the home stretch.  All oral arguments have been completed, and all that is left is for the Supreme Court to issue the decisions in the case.  (As of May 12, there are still 40 cases left to be decided over the next seven weeks.)  On Thursday, the Supreme Court issues an opinion in one of the sleeper cases of the term — National Pork Producers Council vs. Ross.  

The issue in the case is the validity of California’s laws requiring pork products sold in that state to meet certain criteria related to the proper treatment of the hogs prior to their slaughter.  As one can imagine, pork producers in other states do not like having to change how they raise their livestock in order to sell pork in California.  They would rather be able to find the most lenient state possible and raise their hogs in that state.  So they filed a challenge to the regulation based on the so-called “Dormant” Commerce Clause.  The Commerce Clauses gives Congress the authority to pass legislation that regulates interstate commerce.  Over the years, the Supreme Court has inferred from that grant of authority that their is an implied (or in legal speak, dormant) aspect of that grant of power that limits the ability of states to regulate interstate commerce.

In deciding this challenge, we got a rather unique alignment of Supreme Court justices.  And one of the reasons for that alignment is that Supreme Court decisions are not just about the current case.  They are about the next case.  The partisan politics of the Supreme Court (and it is impossible to deny that whatever used to be true, Supreme Court justices have become political actors placed on the court to serve specific political agendas) may dictate the preferred “rule of law” that the Supreme Court justices want to see in place including the blatant tossing out with little or no justification of long-established rules that contradict a justices preferred rule, but justices still like to apply those rules consistently from case to case.  Thus, underlying the decision in this case is what type of analysis should the Supreme Corut apply to the next case in which a red state requires manufacturers to not adopt “liberal policies” to their production processes. Continue Reading...

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Judge Shopping in Federal Court

By tmess2 | Published April 22, 2023

In recent years, we have seen some notorious examples of what is commonly called “judge shopping.”  In simple terms, judge shopping is when a party files a case in a particular way in a particular location to get a specific judge.  To understand how judge shopping happens, it is important to understand how the federal judiciary is organized.

At the highest level is the United States Supreme Court.  There is very limited ability to “justice shop.”  Merits cases are heard by the entire court.  In theory, by picking the trial court in which your case starts, you choose the “circuit justice” who will handle any emergency petition.  But if an emergency petition has any merit, the normal practice is to refer the petition to the entire court.  Even if a justice were to enter an order on an emergency petition, the other side could ask the rest of the court to reconsider that order.

At the next level is the Court of Appeals.  There are thirteen circuits, twelve of which cover certain geographical areas and one of which (the federal circuit) covers highly specialized cases like patent cases.   When a case is initially heard by the Court of Appeals, it is randomly assigned to a panel of three judges.  Such panels are composed of the “active” judges assigned to that circuit, “senior judges” (i.e. semi-retired judges who do not count against the number of active judges set by law for that court) who are willing to take cases in that circuit, and, usually, one or two district court judges from that circuit per argument session.  Simply put, parties have no control over which judges are assigned to the initial panel.  That does not mean that the plaintiff can’t get some advantage from filing in a district in a specific circuit.  The judges in the Ninth Circuit (mostly, the Pacific Coast states) are mostly liberal and the judges in the Fifth Circuit (Louisiana, Mississippi, and Texas) are mostly ultra-conservative.  So you have a better chance of drawing a liberal-majority panel in the Ninth Circuit and a better chance at drawing an ultra-conservative panel in the Fifth Circuit.  Additionally, after the initial panel decides a case, the losing party can ask for the case to be reheard by all of the “active” judges in the circuit (except in the Ninth which is so large that rehearing is done by an expanded panel rather than the entire court).  While rehearing by the entire court is rarely granted, having a favorable circuit makes it more likely that you will get rehearing and a favorable ruling on rehearing if you get a bad draw on the panel. Continue Reading...

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What you Need to Know about the FDA

By tmess2 | Published April 9, 2023

The latest fight about abortion is once again in the courts.  This time the battle is over “medical” abortion.  Even before the Dobbs decision last year, there has been a move away from “surgical” abortions to medical abortions. (According to the latest statistics, it is close to a 50-50 split between surgical abortions and medical abortions.)  The reasons for this trend are somewhat simple.

First, it is easy for a state to regulate surgical abortions.  While most surgical abortions are not what most people would consider to be surgical, a surgical abortion is still a hands-on, in-person procedure.   It requires an office, and a state can enact rules about that physical facility — size, location, and equipment.

Second, the need for a physical location for surgical abortions creates two problems.  On the one hand, that makes it easy for anti-abortion activists to target the facility in various ways.  On the other hand, the need for a physical facility makes it harder for patients to access the facility.  Due to the regulations, an abortion clinic is rather expensive investment.  As a result, abortion clinics are in the biggest cities.  If you live in the rural part of your state, the nearest abortion clinic can be over three or four hours away. Continue Reading...

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Waiting for the Other Shoe to Drop

By tmess2 | Published March 26, 2023

There have been signs, including a posting on his Twitter-alternative website from the Crook-in-Chief that an arrest was supposed to be about to occur, that Donald Trump may soon be the prisoner in the dock.  Obviously, until charges are filed, any discussion of potential charges are just speculation.  But here is what seems to be in the wind.  And I did postpone writing this to see what might get filed this past week, but, since there is no guarantee about when these charges will come, I decided to go ahead with this post.

Right now, the case that appears on the eve of being filed is from Manhattan County in New York.  These charges arise out of something which is, unfortunately, somewhat common with closely-held corporations — an inability to keep the corporation separate from the person.  Legally, a corporation is a separate legal person from its owners, officers, and employees.  The corporation is legally responsible for paying its own expenses and liabilities.  The personal expenses and liabilities of the employees are supposed to be paid by the employees out of their personal funds.  If the employer covers those expenses, that is considered to be compensation to the employee (or dividends to the owner) which has to be reported to the IRS and state taxing authorities as income for the employee (or income to the owner).  This situation is what got the Trump Organization charged and convicted for benefits that it provided to some of the executives which were included as business expenses (and employee compensation is a business expense) on the corporate returns but not reported as income to the executives.

In Trump’s case, the issue is sexual misconduct by the CEO of the company.  Now, if the company is being sued for sexual harassment of its female employees under Title VII, that is a legitimate business expense.  If the CEO is sued for sexual misconduct in his personal ife, that is not a legitimate business expense, and he should be paying the settlement and the legal expenses out of his personal account.  Complicating the matter for Trump is that these issues arose while Trump was running for office.  That raises the issue of whether the settlements and non-disclosure agreements were for personal reasons — to avoid his spouse learning about his infidelity — or for political reasons — to avoid the public learning that the candidate is a liar and cheat who can’t even keep his wedding vows much less any other promise.   It is clear that there are some fraudulent business records here as Michael Cohen and the women should not have been paid from Trump Organization accounts but whether the offense is a felony or misdemeanor depends upon whether that improper use of corporate funds where for other criminal purposes — namely avoiding tax liability on the part of Donald Trump (if Trump had paid the bills and then taken a draw from the company that would have been income to Trump and the expense would not have been tax deductible) and the Trump Organization (distribution of income by a company is not tax deductible but legal expenses are) or to avoid reporting a campaign expense (if the settlement was designed to avoid the political consequences, it would be considered to be a campaign expense). Continue Reading...

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