Lisa Soronen

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The Supreme Court has agreed to decide whether federal courts of appeals versus federal district courts (lower courts) have the authority to rule whether the “waters of the United States” (WOTUS) regulations are lawful.

Numerous states and local governments have challenged the WOTUS regulations. In National Association of Manufacturers v. Department of Defense the Supreme Court will not rule whether the regulations are lawful. Instead, they will simply decide which court gets to take the first crack at deciding whether they are lawful.

President-elect Donald Trump has vowed to get rid of numerous federal regulations adopted by the Obama Administration. Impossible many say. If there is one man who may be able to make this happen it is Supreme Court Justice Anthony Kennedy.

Three of the most important regulations to state and local government were the subject of litigation likely headed to the Supreme Court before Trump was elected:  the Clean Power Plan (CPP) (President Obama’s signature climate change measure), the regulations defining “waters of the...

President-elect Donald Trump has stated repeatedly that one of the goals of his new administration is to get rid of federal regulations. Despite the fact that the new administration has a menu of options to kill final federal regulations the most effective options are likely the most difficult to achieve.

This blog posting uses as examples three of the most important regulations to state and local government—all of which are on the chopping block:  the Clean Power Plan (CPP) (President Obama’s signature climate change measure), the regulations defining “waters of the United States” (WOTUS) (a significant term in the Clean Water Act defining the federal government’s jurisdiction to regulate water), and the Fair Labor Standards Act (FLSA) overtime regulations (extending overtime pay to 4 million workers).

The Supreme Court issued a unanimous per curiam (unauthored) opinion overturning a lower court’s denial of qualified immunity to a police officer in an excessive force case. White v. Pauly was decided without oral argument.

The question the Supreme Court will decide in Expressions Hair Design v. Schneiderman is whether state “no-surcharge” laws that prohibit vendors from charging more to credit-card customers but allows them to charge less to cash customers violate the First Amendment. The State and Local Legal Center (SLLC) amicus brief argues these laws don’t violate the First Amendment because they regulate conduct rather than speech.

Per a “no-surcharge” law if the regular price of an item is $100 credit-card customers may not be charged $103 and cash customers $100. But if the regular price is $103 credit-card customers may be charged $103 and cash customers $100.   

The Supreme Court refused to hear a case involving the question of whether a Colorado law requiring remote sellers to inform Colorado purchasers annually of their purchases and send the same information to the Colorado Department of Revenue is unconstitutional. As is always the case, the Supreme Court gave no reason for denying the petition.   

In Quill Corp. v. North Dakota, decided in 1992, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax. In 2010 the Colorado legislature passed the law described above to improve sales tax collection. The Direct Marketing Association sued Colorado claiming the law unconstitutionally discriminates against interstate commerce and is unconstitutional under Quill.   

The False Claims Act (FCA) allows third parties to sue on behalf of the United States for fraud committed against the United States. Per the Act a FCA complaint is kept secret “under seal” until the United States can review it and decide whether it wants to participate in the case.

In State Farm Fire and Casualty Co. v. United States ex rel. Rigsby the Supreme Court held unanimously that if the seal requirement is violated the complaint doesn’t have to be dismissed.

While the Supreme Court has yet to rule whether states and local governments can bring FCA claims, local governments, but not state governments, can be sued for making false claims against the federal government.  

It is undisputed that police officers used reasonable force when they shot Angel Mendez. As officers entered, unannounced, the shack where Mendez was living they saw a silhouette of Mendez pointing what looked like a rifle at them. Yet, the Ninth Circuit awarded him and his wife damages because the officers didn’t have a warrant to search the shack thereby “provoking” Mendez.

A Texas federal district court issued a nationwide injunction preventing new overtime rules from going into effect. These rules would have made it more likely states and local governments would have had to pay more employees overtime.

Twenty-one states and a number of business organizations sued the Department of Labor. The rules were to go into effect on December 1, 2016.

It is of course too soon to know (but never too soon to speculate)!

While still a candidate, President-elect Trump released two lists of potential Supreme Court nominees to fill the current vacancy on the Court. While he has indicated that these lists are definitive, only time will tell whether he will in fact stick to them when making a nomination. Both lists were well-received by conservatives.

President Trump should have little trouble getting a conservative nominee through the majority-Republican Senate. If Senate Democrats filibuster Trump’s nominee, Senate Republicans are likely to exercise the “nuclear option,” meaning only a simple majority of Senators will be needed to confirm the nominee.    

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