Tag Archives: Chevron deference

Supreme Court Preview — October Term 2023 — Part 2

By tmess2 | Published September 17, 2023

Last week, we took a look at the cases that are set for argument in October and November.  This week, we look at the cases that have been accepted for argument, but have not yet been set for an argument date.  These cases will probably be heard in December or January.

The primary job of the Supreme Court (reflected in the criteria that it lists on its rules for what applicants need to demonstrate before the Supreme Court will accept review) is to assure that courts uniformly interpret and apply federal law.  As such, every case is important to some groups of people.  But the focus in these posts are on those cases which could have a political impact.

First on this list is Muldrow.  This case involves Title VII — the law barring discrimination based on race and gender in employment.  The issue in this case is “transfers.”  Basically, by transfer, we are talking about the reassignment of employees from one job to another job.  Generally, Title VII only applies to “adverse” actions.  As such, the issue is what type of damage/impact does the employee have to show.  At least the argument from the employer is that if the transfer is truly a lateral move with no impact on pay or promotion opportunity, then there is no discrimination.   Obviously, there are other things that impact what qualifies as a desirable job.  Here, the employer is a police department and the transfer is from a detective-type squad to a patrol squad.  Technically, the ranks are equal, but there are reasons why a detective squad is a preferred position.   Needless to say, this case could either indicate an approach to Title VII that would allow it to broadly apply to transfer decisions or an approach in which transfers to nominally equivalent positions will rarely implicate Title VII.  From a practical standpoint, there seems something wrong with an interpretation that would, for example, let an employer assign most women to a night shift and most men to a day shift on the theory that the positions are equivalent, but I would not put such a myopic view past some of the current justices. Continue Reading...

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Supreme Court — October Term 2022 Preview (Part 2)

By tmess2 | Published September 28, 2022

The Supreme Court begins its annual term this upcoming Monday, October 3.  Unofficially, the term begins later today when the Supreme Court holds its opening conference (at which it will start selecting the cases that will start to fill out its January and February argument sessions).  In Part 1, we covered the cases that have been scheduled for argument in October and November.  In this post, we will cover the cases that were previously accepted for argument back in the Spring but which have yet to be assigned to an argument docket (as of yesterday).  Any day now, we should have a list of the December cases (which will actually begin on November 28 and be half in November and half in December).

Percoco vs. United States and Ciminelli vs. United States are related cases involving bidding fraud and government contracting.  One aspect of the cases is whether a lobbyist with political connections (here a former campaign manager) can be found guilty for “honest services fraud” (a means of holding elected officials liable for their part in going along with fraud).

Moore vs. Harper may be the biggest election law case of the term.  The Constitution grants initial power over federal elections to state legislatures.  The two elections clauses — one for congressional elections and one for the choosing of presidential elections — have typically been interpreted as referring to the state legislative power rather than specific bodies (recognizing that, even in the 1780s, there were differences between the states in how they structured their governments).  This traditional interpretation recognized that the people of the states had the authority to enact restrictions on election laws in their state constitutions.  In recent years, conservatives have come up with the “independent state legislature” theory.  Under this theory, the federal elections clauses granted power to the state legislatures that are beyond the control of state constitutions and state laws and rules.  In relevant part, absent an express grant in the state election laws, this theory contends that state courts may not invalidate state elections laws related to federal elections based on state constitutions and that state executive branch officials may not deviate from the express commands in those state elections laws.  This case arises in the context of congressional redistricting, but the theory of the North Carolina legislature would open up a convoluted mess of when a court or an election authority is merely interpreting the relevant state statues and when they are altering it. Continue Reading...

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The Most Dangerous Branch — End of Term Reflections

By tmess2 | Published July 3, 2022

In the Federalist Papers, the Judiciary was called the “Least Dangerous Branch.”  The thought was that the Supreme Court relied on the other branches to follow through on court orders.  However, in our legal system, court orders are usually obeyed.  And, between gerrymandering, filibusters, and the equality of the states in the Senate, it is very hard to get the types of majorities that allow real change in the “political” branches.  Courts, however, simply require a majority to act.  And the relentless campaign of the far right has left us with a Supreme Court that borders on being as political as any other branch of government.  That is not to say that every decision is political.  There are lots of legal issues that are not partisan in nature.  And there are some issues that split conservatives.  However, on this Court, when there is a clear partisan divide over an issue, the result is a foregone conclusion regardless of what the true facts and precedent dictate.    The last week of the term gave us three cases in which Senator Mitch McConnell’s abuse of Senate rules resulted in rulings that we would not have gotten in 2015.

The first case is Kennedy v. Bremerton School District.  What makes this case significant is that this case is ultimately about what version of the facts one chooses to belief.  The normal rule is that appellate courts take the facts as found by the lower courts or in the light most favorable to the lower court.  In this case, however, a major conflict between the two opinions is their characterization of the facts.  The majority sees the practice of the petitioner — a public high school coach kneeling on the football field at the end or the game — as a private act of worship.  The dissent (and the lower courts) saw the act as a public display by a government employee in the course of his employment.  The normal practice when the case is this fact-dependent and the facts are unclear is to “dismiss as improvidently granted.”  Instead, the majority picks and chooses the disputed evidence that supports the legal rules that it wishes to establish notwithstanding compelling evidence supporting a contrary reading of what happened.  In doing so, the Supreme Court announces that the Lemon test for the Establishment Clause has been discarded (as well as other tests for an Establishment Clause violation) and replaced by (wait for it) a historical analysis of what would have been considered an establishment of religion.  It should shock nobody that this approach means that very little will be a violation of the Establishment Clause.  With the Establishment Clause neutered, that just leaves the Free Exercise Clause and the Free Speech Clause.  Given the fact that the Supreme Court has greatly expanded the impact of these two clauses, the end result for the forces of protecting the rights of Christian Theocrats over the rights of everybody else is a foregone conclusion.

The second case Oklahoma v. Castro=Huerta.  This case involves criminal jurisdiction on tribal lands in Oklahoma.  Several years ago, in a 5-4 decision (with Justice Ginsburg) on the Supreme Court, Justice Gorsuch and the four liberal justices ruled that no treaty or act by Congress ever formally disestablished the native reservations in Eastern Oklahoma even as non-Natives bought the land on the reservation.  As such, the lands were still legally part of those reservations.  Under federal statute, crimes by natives against natives on reservations have to be tried in tribal court or federal court (depending on the offense).  The new case involved crimes against natives by non-natives.  With Justice Barrett instead of Justice Ginsburg, there were five votes against tribal authority and in favor of state authority.  As such, the majority — thanks to a rushed confirmation by Senator McConnell in the fall of 2020 — found that Oklahoma also had the authority to try such cases in state court.   Now, both this decision and the earlier decision are based on statutes.  In theory, Congress could fix the laws related to the relationship between tribal authority and state authority to fix the issues brought out by cases (or actually appropriate the money to hire enough prosecutors, public defenders, and judges to handle a large number of cases on tribal lands in Oklahoma), but the deadlock in Congress makes this highly unlikely. Continue Reading...

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Supreme Court Update

By tmess2 | Published June 20, 2022

The last week was both busy and quiet on the Supreme Court front.  The Supreme Court handed down eleven decisions reducing the number of pending cases to eighteen with two weeks to go.  Only two of the cases were medium big, and the really big cases will be decided in the last two weeks.  With the Juneteenth holiday, the Supreme Court will be releasing opinions tomorrow (Tuesday) and Thursday.  For the last week of June, Monday will be an opinion day.  Depending on how many opinions are left after June 27, there will probably be additional opinions on June 29 and, maybe, June 30.  Expect Dodds and New York State Rifle to come the week of June 27.

This week, the two big decisions were in American Hospital Association v. Becerra and Arizona v. City and County of San Francisco.  Both of these are bigger for what they did not say than for what they actually held.

American Hospital Association involves the rules for hospital reimbursements for Medicare.  For years, conservatives have been challenging a judge-made rule (Chevron deference) which dictates that courts should uphold reasonable rules implemented by administrative agencies based on a reasonable interpretation of statutes.  So far, the U.S. Supreme Court has not officially overruled Chevron.  Instead, they are whittling it away through decisions like American Hospital Association.  The courts are doing this by narrowing the field of what is a reasonable interpretation of statutes. Continue Reading...

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Covid and the Supreme Court

By tmess2 | Published January 1, 2022

While many of us were enjoying time off for end-of-year holidays, the United States Supreme Court added extra work for several lawyers.   On December 22, the Supreme Court issued two orders in four cases involving two of the Biden Administration’s vaccine mandates — one involving health care workers and one involving large employers.  In these orders, the Supreme Court granted review and set the cases for expedited argument this upcoming Friday (January 7).   There are several issues worthy of comment on this order.  The first comment is a little “inside baseball.”  The other has to do with what is really happening here as oppose to how the media might comment on this case.

Starting with the inside baseball part of this issue, over the past several years, there has been growing criticism of how the Supreme Court is using the “shadow” docket.  The shadow docket is a reference to applications for stays of lower court rulings (or alternatively a request that the Supreme Court issue a temporary injunction that the lower court refused to issue).   If the application is completely frivolous, it can be denied quickly by an order.  If there is some merit, the Supreme Court might request a response.  After receiving the response, the Supreme Court typically resolves the application by an order or a brief unsigned “per curiam” opinion.  Unless some justice opts to file a concurring or dissenting opinion, the order or opinion does not note the votes of the justices.  All that we know is that, at least five justices, agreed with the order or opinion.  These cases are typically resolved without full briefing or argument.  As some significant issues have come through the shadow docket over the past several years, this process has come under some criticism.  This year, we have seen the Supreme Court opt to grant argument on three separate occasions to matters arising from the shadow docket — first on a question about ministers in the execution chamber (argued but still awaiting a decision), second on the ability to challenge the Texas abortion statute, and now on the Biden vaccine mandates.  In the first two cases, the parties did get to submit full briefs on an expedited basis.  That is not so for the vaccine mandates.  While, maybe, the Supreme Court would have gone this right under any circumstances, clearly the fact that the shadow docket is starting to become an issue is something that the Supreme Court has to be concerning to the justices.  Perhaps, the Supreme Court will continue to hold expedited argument on major issues arising on the shadow docket to avoid Congress taking action.  Only time will tell.

Turning to the merits, while the media will focus on these cases being about vaccine mandates, that framing is misleading at best and wrong in many respects.  While the cases do involve a challenge to vaccine mandates, the legal issues have very little to do with vaccine mandates.  There is no claim in these cases that vaccine mandates violate the rights of anybody.   Cases asserting a right to not be vaccinated have uniformly been rejected.  (To be blunt, those cases demonstrate the hypocrisy of the right wing of the Republican Party.  At the same time that they are asking the court to overturn Roe vs. Wade, they are bringing these cases asserting a right to bodily autonomy that depend largely on Roe.)  Instead, these cases involve two other issues. Continue Reading...

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Supreme Court October Term 2021 — Part II

By tmess2 | Published September 26, 2021

Last week, we took a look at the upcoming Supreme Court Term with a focus on the cases scheduled for the October and November argument sessions.  This week, we take a look at the cases set for December and those with no argument date yet (most likely January) with some comments on pending applications.

The big case on the December docket is Hobbs v. Jackson Women’s Health Organization — the Mississippi abortion case.  Putting the media hype to the side, the technical issue is “whether all pre-viability prohibitions on elective abortions are unconstitutional.”   Roe and Casey both allow some pre-viability restrictions on abortion.  What they do not allow is a pre-viability ban on all abortions.  The real issue for this case will be how the majority tries to chip away at Roe and Casey to allow more restrictions on abortion.  My expectation is for some plurality opinion written by the Chief Justice or Justice Kavanaugh that makes it likely that the lower courts will nominally uphold Roe and strike down this statute while making it easier for states to regulate abortion in ways that will make it harder for women to get abortions in red states.

There are a couple of cases involving Medicare reimbursements.  One of these two cases involves issues of Chevron deference — the principle that, if a statute is ambiguous, courts should defer to the interpretation made by agency charged with applying the statute.  Conservatives have been chipping away at Chevron deference for many years.  The typical approach has been to use the tools of statutory construction to find that the statute is not ambiguous.  In this approach, Chevron deference is a tie-breaker at the end of the interpretive process, and you rarely get a tie at the end of the interpretive process. Continue Reading...

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Judge Gorsuch and Same Sex Bathrooms

By tmess2 | Published February 11, 2017

While, for the most part, Judge Gorsuch reflects the views of the current conservative legal establishment (which is substantially more conservative today than it was thirty years ago), one of the areas in which he stands out is his view on the scope of regulatory authority.  Current case law is mostly bounded in the reality of current politics.  Some conservatives want courts to disrupt the way things currently operate.

Currently, Congress tends to write broad statutes establishing programs or general rules for some type of activity.  Congress then delegates responsibility for filling in the details to some department or agency.  To use health care as an example, such an approach keeps legislation relatively simple and prevents it from being bogged down in the tiny details (should there be a copay for vaccines, do policies have to cover erectile disfunction or contraceptives).  Additionally, leaving the details for the regulatory agency makes it easier to adjust to changes — as new drugs are discovered, the agency can adjust the list of covered drugs to reflect those new drugs.   The best example of this process of adjustment is in the case of pollution where the Clean Air Act and Clean Water Act both allow the EPA to regulate new pollutants upon determining that the evidence demonstrates that a previously unregulated substance is a pollutant.

Current case law supports the ability to operate in this way through three doctrines.  First is the current limited version of the non-delegation doctrine.  Back before the New Deal, the courts regularly struck down regulations on the theory that Congress had improperly delegated legislative authority to the executive branch.  Current law permits such delegation as long as the statute gives sufficient guidance to the administrative agency.  While sufficient is somewhat in the eye of the beholder, most courts only require very broad guidance. Continue Reading...

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Immigration Kerflufle

By tmess2 | Published January 31, 2017

We knew the policy was coming.  We should have guessed that Trump would botch it — both in terms of the actual policy and in terms of how it was implemented.  Now, we have a fustercluck of a “temporary” Arab ban policy.  There are potential legal issues involved which I will discuss below.  As a major cautionary note, I don’t do immigration law.  Despite what the U.S. Supreme Court may think, those of us who deal in ordinary criminal law don’t really get the nuances of immigration law nor all of the technical terms involved.

Before turning to the potential legal challenges, what has happened over the past five days is exactly why there are usual procedures for issuing executive orders.  While Trump would probably have still tended toward the outrageous in this policy, some of the problems might have been avoided if things had been handled better.  Instead, we have a policy statement masquerading as a policy.

Normally before an executive order is released, the White House staff has consulted with the effected agencies — here, State, Homeland Security, I.C.E., U.S.C.I.S., and T.S.A. — to get their input and make sure that everyone is on the same page at the time of implementation.  Additionally, the Office of Legal Counsel typically has gone through the order to make sure that it is legally defensible — not necessarily a winning defense, but at least no glaring fatal flaws for which there is not even a colorable defense — and clearly sets forth the policy. Continue Reading...

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