Capitol Comments

What does Barr v. American Association of Political Consultants have to do with state and local governments? The question the Supreme Court will decide in this case is whether allowing robocalls for government-debt only violates the First Amendment. State and local governments aren’t likely recipients of such calls.

In one word the answer is Reed; as in Reed v. Town of Gilbert (2015). In Reed the Supreme Court held that strict (usually fatal)-scrutiny applies to content-based restrictions on speech, and the Court defined content-based broadly. In short Reed was a bad decision for state and local governments, which regularly regulate content-based speech.  

The Telephone Consumer Protection Act (TCPA) prohibits automatic dialing or prerecorded calls to cell phones with three exceptions—emergencies, consent, and debt collection owed to or guaranteed by the United States. The American Association of Political Consultants claims the third exception violates the First Amendment.

In Rutledge v. Pharmaceutical Care Management Association the Supreme Court will decide whether states’ attempts to regulate pharmacy benefit managers’ (PBMs) drug-reimbursement rates are preempted by the Employee Retirement Income Security Act (ERISA).

PBMs are an intermediary between health plans and pharmacies. Among other things, they set reimbursement rates to pharmacies dispensing generic drugs. Contracts between PBMs and pharmacies create pharmacy networks. According to the Eighth Circuit, “[b]ased upon these contracts and in order to participate in a preferred network, some pharmacies choose to accept lower reimbursements for dispensed prescriptions.” So, in some instance pharmacies lose money.

Arkansas passed a law requiring that pharmacies “be reimbursed for generic drugs at a price equal to or higher than the pharmacies’ cost for the drug based on the invoice from the wholesaler.”

The question the Supreme Court will decide in City of Chicago, Illinois v. Fulton is whether a local government must return a vehicle impounded because of code violations immediately upon a debtor filing for bankruptcy.

The City of Chicago impounds vehicles where debtors have three or more unpaid fines. Robbin Fulton’s vehicle was impounded for this reason. She filed for bankruptcy and asked the City to turn over her vehicle...

The question the Supreme Court will decide in McGirt v. Oklahoma may sound familiar: “whether the prosecution of an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries is subject to exclusive federal jurisdiction.” The Supreme Court agreed to decide this very same question last term in Sharp v. Murphy. But the Court didn’t...

In a long-awaited decision in Texas v. Azar the Fifth Circuit held that the Affordable Care Act’s (ACA) individual mandate is unconstitutional. This decision has no practical effect because no one is currently required to pay the shared-responsibility payment. A year ago, a federal district court held the individual mandate is inseverable from the ACA rendering the entire law unconstitutional. The Fifth Circuit sent the case back to the lower court...

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