Federalism

The State and Local Legal Center (SLLC) has been waiting for this day for a long time. In Kisor v. Wilkie the Supreme Court will decide whether to overturn Auer deference to federal agencies.

In Auer v. Robbins (1997) the Supreme Court reaffirmed its holding in Bowles v. Seminole Rock & Sand Co. (1945) that courts must defer to a federal agency’s interpretation of its own regulations (even if that interpretation is articulated for the first time in an amicus brief during litigation).

State and local governments have long been critical of Auer deference of a number of reasons. First, it gives agencies a lot of authority in every area in which any agency regulates. Second, Auer deference negatively affects state and local governments because they are regulated by federal agencies and regulate in the same space as federal agencies.

The Court’s grant of this petition isn’t all that surprising. Neither will it be surprising if the Court overturns Auer deference. Recently, all five of the conservative Justices, except Justice Kavanaugh—perhaps only due to his short tenure on the Court, have either written or joined an opinion criticizing Auer deference or agency deference more generally.

States and local governments have long been skeptical of the requirement that courts defer to agency interpretations of statutes because such deference gives unelected agencies a lot of power. In PDR Network, LLC v. Carlton & Harris Chiropractic Inc. the lower court required something worse: blind adherence to an agency order.

The Hobbs Act vests the federal courts of appeals with “exclusive jurisdiction” to “enjoin, set aside, suspend (in whole or in part), or to determine the validity of” certain orders made by the Federal Communications Commission (FCC) and orders of the Secretary of Agriculture, Secretary of Transportation, Federal Maritime Commission, Atomic Energy Commission, and others.

According to one lower court the Hobbs Act “promotes judicial efficiency, vests an appellate panel rather than a single district judge with the power of agency review, and allows uniform, nationwide interpretation of the federal statute by the centralized expert agency.”

The repeal of net neutrality rules under the Obama administration has now been in effect for four months. During this time, states have re-enacted the rules at the state level, urged the federal government to reinstate the rules, and appealed the decision to a D.C. federal court. Net neutrality is the principle that internet service providers—including Verizon, AT&T, Spectrum, and others—should enable access to all content and applications regardless of the source, and without favoring or blocking particular products or websites.

Herrera v. Wyoming is a case of dueling Supreme Court precedent.

Clayvin Herrera, a member of the Crow tribe, shot an elk in Big Horn National Forest in Wyoming. He was charged with hunting without a license during a closed season. Herrera claims that an 1868 treaty giving the Crow the right to hunt on the “unoccupied lands of the United States” allowed him to hunt on this land.

In Herrera v. Wyoming the Supreme Court will decide whether Wyoming's admission to the Union or the establishment of the Big Horn National Forest abrogated the Crow’s treaty right to hunt in Big Horn National Forest.

State sovereignty is front and center in Franchise Tax Board of California v. Hyatt. This case is before the U.S. Supreme Court for (possibly a record-breaking) third time. This time the Supreme Court will decide whether to overrule Nevada v. Hall (1979), which permits a state to be sued in the courts of another state without its consent. In Hyatt II (2016), the Supreme Court deadlocked 4-4 on this question shortly after Justice Scalia died.   

Chapter 2 of The Book of the States 2018 contains the following tables:

As of the end of July, Justice Anthony Kennedy is retired. For states and local governments he will be forever remembered as the Justice who championed allowing online sales tax collection.

In March 2015, Justice Kennedy wrote that the “legal system should find an appropriate case for this Court to reexamine Quill,” which held that businesses without a physical presence in the state did not have to collect sales tax. In his last majority opinion on the bench, South Dakota v. Wayfair, the Supreme Court overturned Quill.

Justice Kennedy was a pivotal Justice for most of his thirty year tenure on the Supreme Court. He often provided the Court’s crucial fifth vote on hot-button national issues. In Planned Parenthood v. Casey, Justice Kennedy blazed a middle path, writing part of the opinion that moved the Court slightly to the right while declining to overrule Roe v. Wade. In LGBTQ cases Justice Kennedy played a much more progressive role, writing for the majority to strike down a law allowing for same-sex discrimination and eventually striking down gay marriage bans in Obergefell v. Hodges.

By Jud Adams

The House considered H.R.50, the Unfunded Mandates Information and Transparency Act of 2017, or UMITA, on July 13. Reforming the Unfunded Mandates Reform Act, or UMRA, has long been a ...

It is fairly rare for the Supreme Court to decide a family law case raising constitutional issues. The last noteworthy case meeting this criteria was Obergefell v. Hodges (2015) where the Court ruled same-sex couples have a constitutional right to marry. Sveen v. Melin isn’t as groundbreaking.  

In this case the Supreme Court held 8-1 that applying Minnesota’s revocation-on-divorce statute to a life insurance beneficiary designation made before the statute’s enactment does not violate the Constitution’s Contracts Clause.

Despite the fact that Washington v. United States wasn’t really decided and technically only affects one state, it is still an interesting case because Washington argues the lower court decision will cost it billions of dollars. Also, this decision comes on the heels of the Supreme Court’s recent grant in Murphy v. Royal. In this case the Tenth Circuit held that for the purpose of criminal prosecutions half of Oklahoma may be located on an Indian Reservation.  

In Washington v. United States the Supreme Court was supposed to decide whether a “fishing clause” in a treaty guarantees “that the number of fish would always be sufficient to provide a ‘moderate living’ to the tribes.” Instead the Court affirmed the Ninth Circuit ruling by an equally divide vote. Whenever the Supreme Court deadlocks in a case the lower court decision stands but it doesn’t have precedential value. Justice Kennedy was recused in this case.

Pages