Tag Archives: Supreme Court

Supreme Court — Thursday Blockbusters

By tmess2 | Published June 18, 2021

Normally, at this time of the year, I am posting a look at the big cases to be decided in the last two to three weeks.  I got a little delayed this year by the redistricting posts, and  The Supreme Court beat me to the punch by releasing two of the biggest opinions of the term  — Texas vs. California and Fulton vs. Philadelphia.  

Texas is the latest, and hopefully last, round of the Republicans attempts to use the courts to accomplish what they can’t do in Congress — repeal the Affordable Care Act.  The latest theory was that, by repealing the tax penalty that is part of the individual mandate, Congress effectively repealed the entire Affordable Care Act.

Understanding the issues in the case requires a brief detour into the back history of the case and some basic things that most lawyers learn in law school (but which the dissent kindly forgets).  Before the New Deal, there were a lot of doctrines that a conservative Supreme Court used to block progressive legislation.  And, as will be discussed in the post on the remaining cases, it is important to understand that many in the Federalist Society think that the “Old Court” got it right and oppose the changes that the Supreme Court made in the 1940s to those doctrines.  One of those changes was a much broader definition of the power of the federal government to regulate economic matters under the Commerce Clause.  And when the Affordable Care Act was enacted, most thought that the individual mandate was authorized by the Commerce Clause.  And when the Republicans first challenged the individual mandate, the defense of the mandate relied, in part, on its significance in the overall scheme.  Unfortunately for the future of the Affordable Care Act, when the Supreme Court first analyzed the Affordable Care Act, the Chief Justice sided with the conservatives on the Commerce Clause issue but was willing to find that it was authorized as a tax.  When Republicans managed to repeal the tax in 2017, conservatives saw an opportunity to use that repeal to take a second run at the individual mandate and the Affordable Care Act. Continue Reading...

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The Supreme Court and Elections — Post 2020 Editions

By tmess2 | Published March 7, 2021

This past argument session (the February Session) saw the last gasps of the 2020 election.  There were three very different issues on the table:  1) the Trump attempts to overturn the election for alleged failure to follow election procedures: 2) the role of state legislatures, state election officials, state courts, and federal courts in setting the rules for election; and 3) the Voting Rights Act.

On the first issue, there are apparently two cases still pending at the U.S. Supreme Court — one a Wisconsin case that will likely be turned down on the March 8 order list and the other will not be considered until later (either the March 19 or March 26 conference).  The second one is a Pennsylvania case involving the issue discussed below.  Assuming that the Wisconsin case is denied, the Supreme Court will have denied Trump’s requests for review in all of the cases involving alleged fraud in the election over the past several weeks.

The second issue is likely to arise again.  Article I, Section 4, Clause 1 gives the primary authority to set the “times, places, and manner” of congressional elections to the “legislature” of each state subject to the ability of Congress to also legislate on these issues.  Similarly, Article II, Section 1, Clause 1 gives the power to direct the “manner” of choosing electors to the “legislature” of each state.  In recent years, there has been a significant amount of litigation involving these clauses.  There are two key legal questions:  1) what is the scope of “manner”; and 2) what is the “legislature.” Continue Reading...

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Census Watch 2021

By tmess2 | Published December 18, 2020

As folks who have followed this website for a long time know, the decennial census is something that I consider to be a very big deal.  And, while perhaps not as detailed as we did it back in 2011, I am hoping that we will do something as the numbers come out in the spring about what the numbers might mean for our chances at keeping and increasing the Democratic majority in the House.

Redistricting involves two action at the federal level and at the state level.  At the federal level, the results of the census are use to determine how many representatives each state gets (often referred to as apportionment).  At the state level, assuming that a state has more than one representatives, redistricting involves drawing the lines so that each district has roughly the same population (no more than a 5% gap between the largest and smallest district and preferably smaller).   At the current time, of course, we are dealing with actions at the federal level.  The ball only shifts to the state level once apportionment has occurred and the Census Bureau has released the detailed count (breaking population down to census blocks) to each individual state on a rolling basis.

The federal part of the process comes first and involves two steps:  one involving raw data and the other involving the application of a formula to that data.    The first step is the census finalizing its state level population numbers. According to federal law, by January 1, the Census Bureau is supposed to report its numbers to Secretary of Commerce who is to forward those numbers to the president.  Upon receipt of those numbers, the President is to calculate the number of representatives that each state is entitled to and, by January 10,  forward a statement setting forth the population of each state and the number of representatives that each state will have in the next Congress.  The calculation is done by the “method of equal proportions” (one of several mathematical formulas used to “fairly” allocate partial seats). Continue Reading...

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Electoral College

By tmess2 | Published December 13, 2020

One of the often misunderstood aspects of U.S. elections is how the popular vote relates to the election of the President.  While, in the majority of the states, the ballot simply lists the candidates for President (along with the Vice-Presidential running mate), voters are effectively voting for a slate of electors.  The winning slate in each state then assembles on the first Monday after the second Wednesday in December at the location and time designated by that state.  After assembling, the electors for the state cast a vote for President and a vote for Vice-President.  The votes are then counted, and the electors complete six certificates of vote recording the votes of the electors for that state.  Each certificate of vote is paired with one of the previously completed certificates of ascertainment.  Federal law then directs what happens with the six certificates of vote with one going to the President of the Senate (in practice, the clerk of the Senate), two to the national archives, two to the secretary of state of the individual state, and one to the federal district court for that state.

Normally, the meeting of the electoral college is a big ceremonial event.  With Covid-19 and the potential for protests to get out of control, it appears that most of the states are planning on holding scaled-down events.

The fringe element of Trump supporters (and President Putin) are hoping for some last minute drama for Monday, but that is practically impossible for several reasons.  First, earlier this year, the U.S. Supreme Court upheld state laws requiring electors to vote for the presidential candidate to whom they are pledged.  While states have different laws on so-called faithless electors,  the net effect of those laws is that sixty-nine Biden electors are from states that replace an elector and cancel the electors vote if the elector fails to follow through on their pledge, sixty are from states that fine the elector, seventy-one are from states with pledges but no enforcement provision, and one hundred six are from states with no law on this issue.  That means that, at most, there are 237 Biden electors who could defect. Continue Reading...

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Safe Harbor Day — UPDATED

By tmess2 | Published December 6, 2020

Whether it is just the weirdness of 2020 or the narcissism of the Orange Menace, this post-election period has been about key dates and events.  Over the past four weeks or so, one by one, despite unsuccessful attempts to have courts intervene to block them, states have certified the results of the presidential election, and the remaining states are set to do so on Monday or Tuesday.   Once the appropriate authority within the state has certified the results of the presidential election, the governor is to complete and mail to the National Archives a “certificate of ascertainment.”  As of today’s date, the National Archives has received just under half of these certificates.

Now normally, this process is routine.  It happens, and only political geeks pay attention.  But because Trump and his “lawyers” refuse to face reality, we are now facing an event that has only really mattered once before in U.S. history — the safe harbor date.   If a state has concluded any dispute related to electors by six days before the electors meet, the determination by the state is “conclusive.”  In 2000, the U.S. Supreme Court used this language to find that Florida wanted all election contests to end by the safe harbor date.  The 2000 election is the only time that we have faced the safe harbor date having any meaning.

But we are back in that boat again.  And this year, the safe harbor date is Tuesday, December 8.    Despite Trump’s attempt to cast this election as a repeat of 2000 with the Supreme Court intervening to decide the election if necessary, what is happening in the courts does not support that alternate reality. Continue Reading...

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Trump and the Supreme Court (UPDATED)

By tmess2 | Published November 29, 2020

Even though Joe Biden will become President on January 20, Donald Trump is still the president.  Thus, until January 20, the policies of President Trump are still the policies of the U.S. Government, and Bill Barr and Noel Francisco still get to decide what position the U.S. will take in pending litigation

This week, the U.S. Supreme Court returns for its first set of oral arguments since Joe Biden became the presumptive President-elect.    And the session begins with a very big case — Trump vs. New York.  The issue in the case is whether unauthorized immigrants count as part of U.S. population in the census for the purpose of allocating congressional seats and government funding.

The big development on this case is that the Census Bureau will apparently be unable to meet the statutory deadline of late December for reporting the total count due to certain issues that have arisen in finalizing the count.    The U.S. Supreme Court had shortened the time limits on this case to make sure that they could hear arguments on it and issue a decision in a timely fashion.  But if the numbers will not be available until after January 20, and President Biden opts to use the full count, this case could disappear as moot.  I would prefer that the Supreme Court issue a decision upholding the plain language of the Constitution requiring a count of all persons residing in the U.S., but, as long as the Republicans attempt to manipulate the numbers fails, I can live with a non-decision. Continue Reading...

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Affordable Care Act Back at the Supreme Court

By tmess2 | Published November 8, 2020

Now that we know that our long national nightmare is almost at an end, it’s time to return to looking at the mess that he has left behind.  And on Tuesday, the Supreme Court will be looking at one of the messes that Trump created — the continued validity of the Affordable Care Act.

While the exact issue arises from the “Cut Trump’s Taxes” tax legislation passed in 2017 by some very unusual procedural maneuvers, the core of the issue comes from the Court’s decision upholding the Affordable Care Act, in part, in 2012.   Extreme conservative lawyers are partially right about that decision.  It was an atrocious decision, but not for the reasons identified by the far right.

For seventy-five years, from 1938 to 2012, the Supreme Court had taken a very expansive view of the Commerce Clause (which allows the federal government to regulate interstate and foreign commerce) and the Necessary and Proper Clause (which allows the federal government to pass legislation that is related to the fields expressly allocated to the federal government).  This interpretation is what allows the federal government to criminalize the growing of marijuana for personal use or street level drug offenses.  Somehow, the Supreme Court decided that even though people with health insurance (or without health insurance) may travel in interstate commerce and have to use that insurance in other states, the individual mandate was not authorized by either the Commerce Clause or the Necessary and Proper Clause.  Now, if the Supreme Court had struck down the Affordable Care Act (requiring the average American to purchase health insurance), Congress would have had to turn to an alternative like a single payer system.  So, the Chief Justice wanting to both deliver a victory for the far right (by selectively restricting the scope of the Commerce Clause) without destroying the insurance industry found an alternative justification for the Affordable Care Act — classifying the individual mandate as a tax authorized by Congress’s power to raise taxes. Continue Reading...

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Can Justices Get the Issues that they Want

By tmess2 | Published October 25, 2020

During her confirmation hearings, soon-to-be Justice Amy Coney Barret conveyed the impression that Supreme Court justices do not control the issues that come before them.  This impression is only very slightly true and is mostly false.

The Constitution does limit court to deciding cases and controversies.  A judge does not get to wake up in the morning and say that today I am going to look at absentee voting rules in Texas.  Instead, the judge must have some party bring that case.  But, there are two ways that judges, especially Supreme Court justices, can influence what cases are brought to them.

First, the United States Supreme Court is mostly a discretionary court.  In other words, the Supreme Court gets to choose what cases they take.  If four justices want to look at Second Amendment issues, the Supreme Court will take a Second Amendment case.  The justices, for the most part, understand that there are certain circumstances where they should take a case.  Thus, you have a lot of cases involving issues of federal statutes on which the lower courts have split.  But, for the most part, it is up to the justices how many abortion or civil rights or Fourth Amendment or Free Speech cases they take. Continue Reading...

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Census Talk

By tmess2 | Published October 17, 2020

With a little less than two weeks to go before the election, developments concerning the 2020 Census are likely to get buried beneath the latest nonsense spouting from our President.  But the 2020 Census is going to be a very big deal next Spring, and what happens between now and January could have a significant impact.

The main purpose of the Census is to provide population figures for use by Congress in apportioning house seats to the states and for use by the states (and local government) in then drawing district lines for everything from congressional seats to city council seats.  As a secondary effect, some government grants to states and localities are also based on population.

Typically, the Census can be viewed as having three phases.  Phase One has historically been conducted by mail  — sending forms to every residential address and having the residents complete those forms.  This year, this phase was modified to allow people to respond on-line, but the essence of this phase remains the same in terms of it mostly relying on voluntary participation.  Phase Two is the field operation.  In this phase, workers go to residences that did not respond to try to get answers to the census by personal contact.  Finally, Phase Three is the compilation of this data. Continue Reading...

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The Confirmation Hearings

By tmess2 | Published October 10, 2020

In the past five years, we have seen the Turtle (Senator Mitch McConnell) go from the unprecedented blocking consideration of a Supreme Court nomination made eight months before an election change into the Hare trying to force an unprecedented vote on a Supreme Court nomination made after Labor Day prior to the election.  While the Senate did not have to approve the nomination of Merrick Garland in 2016, the very rules that the Republicans are relying on now to justify their consideration of Amy Coney Barrett mandated giving Judge Garland a hearing and a vote (at least a procedural vote).   And given the modern procedures, giving Judge Barrett a vote before the election requires cutting the process short.  The simple fact is that conservative Republicans are trying to pack the court.  While, barring some type of miracle, Democrats will not be able to prevent a vote from taking place before the election, there are some issues that should be front and center at the confirmation hearings that will take place this week.

At the top of the list is health care.  While the nominee will probably try to evade the question, it is important to make crystal clear that — if confirmed on the current schedule — Judge Barrett may be the one vote that removes the current protection for people with preexisting conditions.  In the November argument session, the Supreme Court will consider the constitutionality of the Affordable Care Act.  This case arises from the 2012 decision upholding the Affordable Care Act.  In that decision, after rewriting the law to avoid finding that the Affordable Care Act was authorized by the impact on interstate commerce, the 5-4 majority found that the individual mandate was authorized as a tax.  When the Republican Congress failed to repeal the entire act but did repeal the tax, Texas and other red states filed the current suit alleging that the repeal of the tax also repealed the individual mandate and the rest of the Affordable Care Act.

While Judge Barrett will probably try to avoid talking about the merits of the case (as she will be sitting on the Supreme Court when this case is heard), she should be at least forced to explain her approach to one of the key issues in the case.   That issue is “severability.”  Stripped of legal jargon, severability is about whether one invalid clause in a bill or statute requires the courts to reject the entire bill.  Under most of the recent decisions, there is no plausible basis for the Supreme Court to strike the entire Affordable Care Act because Congress expressly decided to repeal one part and leave the rest intact. Continue Reading...

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