Lisa Soronen

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In an amicus brief in New York State Rifle & Pistol Association Inc. v. City of New York, New York the State and Local Legal Center (SLLC) urges the Supreme Court to not apply strict scrutiny to regulations of guns carried in public.

In this case the Supreme Court agreed to decide whether New York City’s ban on transporting a handgun to a home or shooting range outside city limits violates the Second Amendment, the Commerce Clause, or the constitutional right to travel. The Second Circuit held the law is constitutional on all accounts.

Kelly v. United States is a conflux of fascinating law and facts.

The basic question the Supreme Court will decide is whether the masterminds of “Bridgegate” have committed fraud in violation of federal law. The more technical question is whether a public official “defrauds” the government of its property by advancing a “public policy reason” for an official decision that is not the subjective “real reason” for making the decision.

Former New Jersey Governor Chris Christie’s Deputy Executive Director of the Port Authority of New York and New Jersey, the Port Authority’s Director of Interstate Capital Projects, and Christie’s Deputy Chief of Staff for Intergovernmental Affairs orchestrated “Bridgegate.” Under the guise of conducting a traffic study, they conspired to reduce traffic lanes from the George Washington Bridge (the busiest bridge in the world) to Fort Lee the first week of Fort Lee’s school year, because the mayor of Fort Lee refused to endorse Governor Christie for governor.

Espinoza v. Montana Department of Revenue raises an issue the Supreme Court has long wrestled with:  if a state-aid program violates a state constitutional prohibition against mixing church and state because religious institutions may participate, does discontinuing that program violate the federal constitution’s Free Exercise or Equal Protection Clauses.

Montana statutes allow taxpayers to receive tax credits for contribution to Student Scholarship Organizations (SSO) that give students scholarships to attend private schools, including religious schools. The Montana Department of Revenue adopted Rule 1 disallowing religious schools to participate in the program because it concluded their participation would violate Montana’s constitution. Parents of students attending religiously-affiliated private schools challenged Rule 1.

In Department of Homeland Security v. Regents of the University of California the Supreme Court will decide whether the Department of Homeland Security’s (DHS) decision to end the Deferred Action for Childhood Arrivals (DACA) program is judicially reviewable and lawful. Three lower courts have concluded ending the policy is both reviewable and likely unlawful.  

DACA was established through a DHS Memorandum during the Obama presidency. The program allowed undocumented persons who arrived in the United States before age 16 and have lived here since June 15, 2007, to stay, work, and go to school in the United States without facing the risk of deportation for two years with renewals available.

DHS rescinded DACA in September 2017 after receiving a letter from the Attorney General stating the program was unconstitutional and created “without proper statutory authority.”

In Mitchell v. Wisconsin the Supreme Court held that generally when police officers have probable cause to believe an unconscious person has committed a drunk driving offense, warrantless blood draws are permissible. The State and Local Legal Center (SLLC) filed an amicus brief arguing for this result.

By the time the police officer got Gerald Mitchell from his car to the hospital to take a blood test he was unconscious. Mitchell’s blood alcohol content (BAC) about 90 minutes after his arrest was 0.222%.

Wisconsin and twenty-eight other states allow warrantless blood draws of unconscious persons where police officers have probable cause to suspect drunk driving.

In Rucho v. Common Cause the Supreme Court held 5-4 that partisan gerrymandering claims are non-justiciable—meaning that a federal court cannot decide them.

Partisan gerrymandering is the practice of drawing legislative districts to benefit one political party. In Davis v. Bandemer (1986) a majority of the Supreme Court held that partisan gerrymandering cases are justiciable. In that case and since then the Court has been unable to lay out a standard for when partisan dominance “is too much.” In Rucho v. Common Cause the Supreme Court announced it will stop trying.

Chief Justice Roberts wrote the majority opinion which his conservative colleagues joined (Justices Thomas, Alito, Gorsuch, and Kavanaugh). Unsurprisingly, the Court emphasized the role of state legislatures in districting:  “The Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress.”

Chief Justice Roberts joined his more liberal colleagues (Justices Ginsburg, Breyer, Sotomayor, and Kagan) concluding the reasons Commerce Secretary Wilbur Ross gave for adding the citizenship question to the 2020 census were pretextual in violation of the Administrative Procedures Act (APA).

Presumably, Secretary Ross will now be able to offer different reasons for why he wanted to add the citizenship question. If he chooses to do so those reasons may also be challenged in court as pretextual or discriminatory. If he chooses to offer no different reasons, presumably, the 2020 census for won’t contain a citizenship question.    

In Tennessee Wine and Spirits Retailers Association v. Thomas the Supreme Court held 7-2 that Tennessee’s law requiring alcohol retailers to live in the state for two years to receive a license is unconstitutional. The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing the law was constitutional.  

Two constitutional provisions are at issue in this case. The dormant Commerce Clause prohibits state laws that unduly restrict interstate commerce. Both parties agree that if Tennessee’s durational-residency requirement applied to anyone wishing to sell anything other than alcohol it would violate the dormant Commerce Clause.

Auer deference, courts deferring to agencies’ reasonable interpretations of their ambiguous regulations, is alive following the Supreme Court’s decision in Kisor v. Wilkie. But, in the opinion of a few Justices, it is only on life support.

The State and Local Legal Center (SLLC) filed an amicus brief in this case asking the Supreme Court to overturn Auer v. Robbins (1997). In that case the Supreme Court reaffirmed its holding in Bowles v. Seminole Rock & Sand Co. (1945), that courts must defer to an agency’s interpretation of its own regulations.

As discussed in the SLLC amicus brief, states and local governments object to Auer deference because it gives agencies a lot of power. They both write regulations and may interpret them as they like without significant court scrutiny. Agencies aren’t required to receive notice-and-comment related to their interpretations of regulations. New administrations may change the interpretations at their whim. And agencies may purposely write ambiguous regulations knowing courts will defer to their interpretations of them. If Auer deference wasn’t available, courts would interpret regulations without deferring to agency interpretations of them.     

In Moda Health Plan v. United States the Supreme Court will decide whether Congress may enact appropriations riders restricting the sources of funding available to pay health insurers for losses incurred that were supposed to be paid per federal law.

The Affordable Care Act’s (ACA) risk corridor program provided that if a health insurance plan participating in the exchange lost money between 2014-2016 it would receive a payment from the federal government based on a formula defined in the statute. If it made money the plan had to pay the federal government based on a formula. The purpose of the program was to induce health insurance companies to offer plans on the exchange despite the fact they didn’t have reliable data to price the plans.

The Government Accountability Office (GAO) identified a particular funding source the federal government could use to make payments. Congress passed appropriations riders for all three years disallowing that funding source to be used to make risk corridor payments.

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