Lisa Soronen

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The Twenty-First Amendment to the U.S. Constitution is famous because it repealed prohibition. The second section, which prohibits the transportation or importation of alcohol into a state in violation of state law, is less well-known. Despite this section’s broad language and the Supreme Court’s repeated affirmation that the states’ three-tier system of regulating alcohol (manufacturers sell to wholesalers; wholesalers sell to retailers; retailers to consumers) is constitutional, the Supreme Court has limited states’ ability to regulate the distribution of alcohol.

The question the Supreme Court will decide in Tennessee Wine & Spirits Retailers Association v. Byrd is whether Tennessee’s law requiring alcohol retailers to live in the state for two years to receive a license violates the Constitution’s dormant Commerce Clause. The dormant Commerce Clause prevents states from “discriminat[ing] against interstate commerce” or “favor[ing] in-state economic interests over out-of-state interests.”

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.”

The issue in Washington State Department of Licensing v. Cougar Den Inc. is whether the “right to travel” provision of the Yakama Nation Treaty preempts Washington’s tax and permit requirements for importing fuel.

Article III of the Yakama Nation Treaty of 1858 states that “the right of way, with free access from the same to the nearest public highway, is secured to [the Yakama]; as also the right, in common with citizens of the United States, to travel upon all public highways.”

The State and Local Legal Center (SLLC) filed a Supreme Court amicus brief in Virginia Uranium v. Warren arguing that Virginia’s ban on uranium mining isn’t preempted by the Atomic Energy Act (AEA).

Virginia has the largest known uranium deposit in the United States. Since its discovery in the 1980s the Virginia legislature has banned uranium mining. Unsurprisingly the land owner, Virginia Uranium, wants to mine. It sued the state arguing the ban is preempted by federal law.

The three themes that dominated the third day of Judge Kavanaugh’s confirmation hearings were the same three topics discussed at length the day before:  executive power, abortion, and gun rights. Executive power received the most attention.

Making headlines were Senator Booker’s release of “committee confidential” Kavanagh emails discussing abortion and racial-profiling before they were cleared for release to the public, Judge Kavanaugh’s refusal to say whether he thinks Roe v. Wade was decided correctly, and his refusal to condemn President Trump’s attacks on the judiciary.  

Issues related to state and local governments received a little attention, including judicial deference to federal agencies, which was discussed a number of times the day before.

If you were interested in the views of protesters, the details of the Federalist papers, Judge Kavanaugh’s most difficult job (working construction at age 16), and a broad ranging discussion of executive power, day two of Judge Kavanaugh’s confirmation hearings weren’t disappointing.

But if you were interested in knowing Judge Kavanaugh’s views on issues of importance to state and local governments you may have been disappointed. Generally, Supreme Court nominees give little away about their actual views on the law. Judge Kavanaugh was no exception. But he also wasn’t asked many hard hitting questions on legal issues of importance to state and local governments--with the exceptions of the expected questions on abortion and gun rights.

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.

The Supreme Court has long resolved whether and when state law claims against drug manufacturers are preempted by federal law. The Third Circuit ruling in Merck Sharp & Dohme Corp. v. Albrecht is very favorable to state-law claims and likely will be modified, if not reversed, by the Supreme Court.

The Food and Drug Administration’s (FDA) approval of a drug warning label does not necessarily insulate drug manufacturers from state-law failure-to-warn claims. In Wyeth v. Levine (2009), the Supreme Court held that state failure-to-warn claims are preempted when there is “clear evidence” the FDA would not have approved the warning a plaintiff claims was necessary. In Merck Sharp & Dohme Corp. v. Albrecht, Merck claims there was such “undisputed” evidence in this case but the Third Circuit improperly allowed the case go to a jury for “conjecture as to why the FDA rejected the proposed warning.”

In Dawson v. Steager the Supreme Court will decide whether states may give some retired state and local government employees a bigger tax break on retirement benefits than retired federal employees.

West Virginia taxes the government-provided retirement income of most local, state, and federal employees. While retired federal employees and most state and local government employees may exempt up to $2,000 of retirement benefits from their taxable income, certain state and local police officers, sheriffs, and firefighters can exempt all of their benefits. This group comprises about two percent of all state government retirees.

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.   

The Fifth Amendment’s Double Jeopardy Clause, which prohibits a person from being prosecuted more than once for the same conduct, is a familiar concept. Less familiar is the “separate sovereigns” exception which allows states and the federal government to convict and sentence a person for the same conduct. In Gamble v. United States, Terance Gamble asks the Supreme Court to overrule this exception.

Gamble was prosecuted for and convicted of possession of a firearm by a convicted felon under both Alabama and United States law. His challenge to the “separate sovereigns” exception is unsurprising given that Justice Thomas joined Justice Ginsburg’s concurring opinion in Puerto Rico v. Sanchez-Valle (2016), which suggested the Court do a “fresh examination” of the “separate sovereigns” exception. These Justices are on opposite ends of the ideological spectrum and typically don’t vote together in close cases. 

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