Supreme Court

In American Legion v. American Humanist Society the Supreme Court will decide whether a local government has violated the First Amendment by displaying and maintaining a 93-year-old, 40-foot tall Latin cross memorializing soldiers who died in World War I.

The State and Local Legal Center (SLLC) amicus brief argues the Supreme Court should rule the challengers have no standing to bring this case. The SLLC also argues the cross doesn’t violate the Establishment Clause and that the Court should come up with a single, clear test to evaluate the constitutionality of public displays.  

In 1986 a majority of the Supreme Court agreed that partisan gerrymandering may be unconstitutional in certain circumstances. But in that case and since then the Court has failed to agree on a standard for when partisan gerrymandering crosses the line.

Last term in Gill v. Whitford the Supreme Court again failed to articulate a standard for unconstitutional partisan gerrymandering. Instead, it held that the challengers failed to demonstrate they had standing to bring their case.

The Supreme Court has agreed to hear two partisan gerrymandering cases this term.

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.

In a decision difficult to understand without context the Supreme Court held that “critical habitat” under the Endangered Species Act (ESA) must also be habitat. In Weyerhaeuser Co. v. United State Fish and Wildlife Service the Court also held a federal court may review an agency decision not to exclude an area from critical habitat because of the economic impact. The State and Local Legal Center (SLLC) filed an amicus brief on the latter issue arguing in favor of the result the Court reached.

The United State Fish and Wildlife Service (Service) listed the dusky gopher frog as an endangered species. It designated as its “critical habitat” a site called Unit 1 in Louisiana owned or leased by Weyerhaeuser Company, a timber company. The frog hasn’t been seen at this location since 1965. As of today Unit 1 has all of the features the frog needs to survive except “open-canopy forests,” which the Services claims can be restored with “reasonable effort.”

Weyerhaeuser argued Unit 1 could not be a “critical habitat” for the frog because it could not survive without an open-canopy forests. The Fifth Circuit disagreed holding that the definition of critical habitat contains no “habitability requirement.”

The Supreme Court held unanimously that “critical habitat” must be habitat. The ESA states that when the Secretary lists a species as endangered he or she must also “designate any habitat of such species which is then considered to be critical habitat.”

The State and Local Legal Center (SLLC) amicus brief in Tennessee Wine & Spirits Retailers Association v. Byrd argues that Tennessee’s law requiring alcohol retailers to live in the state for two years to receive a license is constitutional.

According to Tennessee Wine & Spirits “[a]t least twenty-one States impose some form of durational-residency requirement for liquor retailers or wholesalers. And many States impose other residency-based requirements on those entities.”

Pages