Every time a federal agency thinks the scope of a preemption clause in federal law is too narrow may it just write a regulation expanding it? That is the heart of the matter in Coventry Health Care of Missouri v. Nevils.

The question of most interest to state and local governments in this case, more technically, is whether Chevron deference applies to an agency’s regulation construing the scope of a statute’s express-preemption provision.

The question in Kindred Nursing Centers v. Clark is whether the Federal Arbitration Act preempts Kentucky’s rule that an “attorney-in-fact” may bind a principal to an arbitration agreement only if the power-of attorney document expressly refers to arbitration agreements.

A number of parents executed power-of-attorney documents designating one of their children “attorney-in-fact.” While some of these documents gave the children broad rights to act on their parent’s behalf (“to do and perform for me in my name all that I might if present”), none explicitly gave their children the authority to agree to arbitration (rather than a jury trial) to resolve disputes regarding their parent’s legal rights.

In Texas, state law requires most people under age 25 to attend a state-licensed private driver education school to obtain a driver’s license. None of the schools accommodate deaf students. So a number of deaf students sued the Texas Education Agency (TEA) arguing it was required to bring the driver education schools into compliance with the Americans with Disabilities Act (ADA).    

In Ivy v. Morath the Supreme Court was supposed to decide when state and local governments are responsible for ensuring that a private actor complies with the ADA. The Court dismissed the case concluding it was moot most likely because Texas claimed that four of the students suing completed the driver education course and one moved out of state.

G.G. is biologically female but identifies as a male. The Gloucester County School Board prevented him from using the boy’s bathroom. He sued the district arguing that is discriminated against him in violation of Title IX.

The facts of Gloucester County School Board v. G.G. could not be simpler. But the legal issue is complicated.

The Supreme Court will decide in Nelson v. Colorado whether it violates due process to require criminal defendants whose convictions have been reversed to prove their innocence by clear and convincing evidence to receive refunds of monetary penalties they have paid.  

Shannon Nelson was convicted of five charges relating to sexually assaulting her children. She was ordered to pay a variety of costs and fees. The appeals court overturned her conviction because the trial court allowed a lay witness to testify about the age at which children have the ability to remember information and relate it accurately. A new jury acquitted her.

She asked the trial court to refund the money she paid in costs and fees. It refused ruling that the legislature has not given it authority to issue refunds.

In its Supreme Court amicus brief in Wells Fargo v. City of Miami and Bank of America v. City of Miami the State and Local Legal Center (SLLC) argues that Miami, and other local governments across the country, should have “standing” to sue banks under the Fair Housing Act (FHA) for economic harm caused to local governments by discriminatory lending practices.

The City of Miami claims that Wells Fargo and Bank of America targeted black and Latino customers in the City for predatory loans that carried more risk, steeper fees, and higher costs than those offered to identically situated white customers. The City further claims the banks’ lending policies caused minority-owned property to fall into unnecessary or premature foreclosure.

The FHA makes it unlawful for banks to discriminate against mortgage recipients on the basis of race. To bring a lawsuit under the FHA the City of Miami must have “statutory standing,” in other words, “a cause of action under the statute.”

There are not many questions of public policy that economists widely agree upon. The benefits of free trade, negative impacts of rent controls, and the infeasibility of returning to a gold standard, are a few.  Add to that list the use of tax-exempt municipal bonds to subsidize the construction of professional sports complexes, a practice that 85% of surveyed economists disagree with.

While the Supreme Court is still down a Justice, its docket is about half full, which is typical for this time of the year. Five cases in particular on the Court’s docket, described below, will directly impact at least some states. Interestingly, the Court agreed to decide the religion and the takings case before Justice Scalia died last winter.   

On June 7, Tennessee Senate Majority Leader Mark Norris, who served as the 2014 CSG national chair, testified before the U.S. Senate Environment and Public Works Subcommittee on Superfund, Waste Management and Regulatory Affairs at a hearing regarding “Oversight of EPA Unfunded Mandates on State, Local, and Tribal Governments.” The hearing was a continuation of the subcommittee’s oversight of the Environmental Protection Agency’s rulemaking process and examined the agency’s compliance with the Unfunded Mandates Reform Act, or UMRA, and the impact of unfunded mandates on state, local and tribal governments. 

Federalism is again a silent note in the presidential campaign, although some candidates advanced platforms or policies relevant to state-local relations. Despite partisan gridlock,Congress finally reauthorized the highway and education programs, with the latter increasing state and local discretionary authority, but regulatory enactments and Supreme Court diminutions of state powers continue apace. Legalized marijuana still experiences intergovernmental impediments; a revival of the Sagebrush Rebellion was a publicity failure; the federal government is poised to demand states’ compliance with REAL ID while also encroaching upon state regulation of the operation of autonomous motor vehicles.

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