Federalism

In Georgia v. Public.Rescource.Org the Supreme Court held 5-4 that non-binding, explanatory legal materials created by state legislatures cannot be copyrighted.

The Official Code of Georgia Annotated (OCGA) contains various non-binding supplementary materials including summaries of judicial decisions and attorney general opinions and a list of law review articles related to current statutory provisions. The OCGA is assembled by the Code...

On March 18, 2020, Congress enacted the Families First Coronavirus Response Act (FFCRA), providing certain workers up to ten paid sick days and up to twelve weeks of emergency family leave in response to the coronavirus pandemic.

On April 1, 2020, the Department of Labor (DOL) issued a final rule implementing the FFCRA. In a lawsuit, New York challenges four aspects of the final rule.

Generally, New York objects to the final rule because it...

Whether lower courts may issue nationwide injunctions is one of a number of legal issues the Supreme Court will decide in Trump v. Pennsylvania and Little Sister of the Poor Saints Peter and Paul Home v. Pennsylvania. Nationwide injunctions are controversial because they benefit non-parties. For...

In Allen v. Cooper the Supreme Court held unanimously that a state cannot be sued for copyright infringement. In short, the Court found that Congress lacked the authority to strip states of their sovereign immunity in the Copyright Remedy Clarification Act (CRCA) of 1990.

After the pirate Blackbeard’s flagship Queen Anne’s Revenge was discovered in 1996 off the coast of Beaufort, North Carolina, the current owner of the ship, North...

In Barr v. American Association of Political Consultants the State and Local Legal Center (SLLC) has filed an amicus brief asking the Supreme Court to narrow its opinion in...

Chapter 2 of The Book of the States 2019 contains the following tables:

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.

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.     

The Bladensburg Peace Cross may stay the Supreme Court ruled in a 7-2 decision in American Legion v. American Humanist Association.  According to Justice Alito, writing for the majority of the Court: “It has become a prominent community landmark, and its removal or radical alteration at this date would be seen by many not as a neutral act but as the manifestation of ‘a hostility toward religion that has no place in our Establishment Clause traditions.’” The State and Local Legal Center (SLLC) filed an amicus brief in this case supporting the local government.

In late 1918, residents of Prince George’s County, Maryland, decided to erect a memorial to honor soldiers from the county who died in World War I. The monument, completed in 1925, is a 32-foot tall Latin cross that sits on a large pedestal. Among other things, it contains a plaque listing the names of 49 local men who died in the war. Over the years, memorials honoring the veterans of other conflicts have been added to the surrounding area. In 1961, the Maryland-National Capital Park and Planning Commission acquired the Cross and the land it is on in order to preserve it and address traffic-safety concerns.

One can’t help but wonder if the Supreme Court decided to hear Allen v. Cooper because it involves a pirate ship. The (not very glamorous) legal issue the Supreme Court will decide is whether states can be sued in federal court for copyright violations.

North Carolina owns a ship pirate Blackbeard captured, renamed Queen Anne’s Revenge, and sunk between 1717-18. In the late 1990s North Carolina permitted a private research and salvage firm to photograph the ship. North Carolina continued to own the shipwreck and its artifacts, and the company could make money from the sale of media related to the ship. Frederick Allen, who was hired by the salvage firm to take photos and videos of the ship, sued North Carolina for infringing on images Allen copyrighted.

The Eleventh Amendment protects states and state officials acting in their official capacity from being sued in federal court. Congress may abrogate sovereign immunity by making a clear statement of its intent and validly exercising congressional power. Allen claims North Carolina can be sued in federal court for infringing on his copyright because Congress abrogated states’ sovereign immunity in the Copyright Remedy Clarification Act. 

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