Lisa Soronen

Author Articles

A federal district court has held that a question about citizenship may not be included in the 2020 census. The Trump administration is likely to appeal this ruling to the Second Circuit, and it is likely the Supreme Court will ultimately resolve the dispute. Additional challenges to including this question have been brought but not yet decided.  

Judge Furman summarizes the significance of having an accurate census for state and local governments in his 277-page opinion:  “[The census] is used to allocate hundreds of billions of dollars in federal, state, and local funds. Even small deviations from an accurate count can have major implications for states, localities, and the people who live in them — indeed, for the country as a whole.”

In American Legion v. American Humanist Society the Supreme Court will decide whether a local government has violated the First Amendment by displaying and maintaining a 93-year-old, 40-foot tall Latin cross memorializing soldiers who died in World War I.

The State and Local Legal Center (SLLC) amicus brief argues the Supreme Court should rule the challengers have no standing to bring this case. The SLLC also argues the cross doesn’t violate the Establishment Clause and that the Court should come up with a single, clear test to evaluate the constitutionality of public displays.  

In 1986 a majority of the Supreme Court agreed that partisan gerrymandering may be unconstitutional in certain circumstances. But in that case and since then the Court has failed to agree on a standard for when partisan gerrymandering crosses the line.

Last term in Gill v. Whitford the Supreme Court again failed to articulate a standard for unconstitutional partisan gerrymandering. Instead, it held that the challengers failed to demonstrate they had standing to bring their case.

The Supreme Court has agreed to hear two partisan gerrymandering cases this term.

While a federal district court struck down the Affordable Care Act as unconstitutional on December 14, the Act and the litigation will continue. The judge didn’t issue a nationwide injunction which would have had the effect of immediately ceasing all aspects of law.

Unsurprisingly, the states defending the law have stated they will appeal this ruling to the Eleventh Circuit. Particularly if the Eleventh Circuit agrees with the lower court the Supreme Court is likely to hear this case though not until its next term beginning October 2019.

The Affordable Care Act individual mandate required uninsured who didn’t purchase health insurance to pay a so-called shared-responsibility payment. In 2012 the Supreme Court held the individual mandate is a constitutional “exercise of Congress’s Tax Power because it triggered a tax.” The Tax Cuts and Jobs Act of 2017 reduced the tax to $0 as of January 1, 2019.

The State and Local Legal Center (SLLC) has been waiting for this day for a long time. In Kisor v. Wilkie the Supreme Court will decide whether to overturn Auer deference to federal agencies.

In Auer v. Robbins (1997) the Supreme Court reaffirmed its holding in Bowles v. Seminole Rock & Sand Co. (1945) that courts must defer to a federal agency’s interpretation of its own regulations (even if that interpretation is articulated for the first time in an amicus brief during litigation).

State and local governments have long been critical of Auer deference of a number of reasons. First, it gives agencies a lot of authority in every area in which any agency regulates. Second, Auer deference negatively affects state and local governments because they are regulated by federal agencies and regulate in the same space as federal agencies.

The Court’s grant of this petition isn’t all that surprising. Neither will it be surprising if the Court overturns Auer deference. Recently, all five of the conservative Justices, except Justice Kavanaugh—perhaps only due to his short tenure on the Court, have either written or joined an opinion criticizing Auer deference or agency deference more generally.

In a decision difficult to understand without context the Supreme Court held that “critical habitat” under the Endangered Species Act (ESA) must also be habitat. In Weyerhaeuser Co. v. United State Fish and Wildlife Service the Court also held a federal court may review an agency decision not to exclude an area from critical habitat because of the economic impact. The State and Local Legal Center (SLLC) filed an amicus brief on the latter issue arguing in favor of the result the Court reached.

The United State Fish and Wildlife Service (Service) listed the dusky gopher frog as an endangered species. It designated as its “critical habitat” a site called Unit 1 in Louisiana owned or leased by Weyerhaeuser Company, a timber company. The frog hasn’t been seen at this location since 1965. As of today Unit 1 has all of the features the frog needs to survive except “open-canopy forests,” which the Services claims can be restored with “reasonable effort.”

Weyerhaeuser argued Unit 1 could not be a “critical habitat” for the frog because it could not survive without an open-canopy forests. The Fifth Circuit disagreed holding that the definition of critical habitat contains no “habitability requirement.”

The Supreme Court held unanimously that “critical habitat” must be habitat. The ESA states that when the Secretary lists a species as endangered he or she must also “designate any habitat of such species which is then considered to be critical habitat.”

The State and Local Legal Center (SLLC) amicus brief in Tennessee Wine & Spirits Retailers Association v. Byrd argues that Tennessee’s law requiring alcohol retailers to live in the state for two years to receive a license is constitutional.

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.”

States and local governments have long been skeptical of the requirement that courts defer to agency interpretations of statutes because such deference gives unelected agencies a lot of power. In PDR Network, LLC v. Carlton & Harris Chiropractic Inc. the lower court required something worse: blind adherence to an agency order.

The Hobbs Act vests the federal courts of appeals with “exclusive jurisdiction” to “enjoin, set aside, suspend (in whole or in part), or to determine the validity of” certain orders made by the Federal Communications Commission (FCC) and orders of the Secretary of Agriculture, Secretary of Transportation, Federal Maritime Commission, Atomic Energy Commission, and others.

According to one lower court the Hobbs Act “promotes judicial efficiency, vests an appellate panel rather than a single district judge with the power of agency review, and allows uniform, nationwide interpretation of the federal statute by the centralized expert agency.”

In March 2018 Secretary of Commerce Wilbur Ross issued a memorandum stating a citizenship question would be added to the 2020 census questionnaire. In In Re Department of Commerce the Supreme Court will not be deciding whether this question may be legally added. Instead, the Court will decide—among other things—whether Secretary Ross may be deposed as to his motives for adding this question.

A number of state and local governments and nonprofits sued the Secretary claiming that adding this question is arbitrary and capricious in violation of the Administrative Procedure Act.

In the 2018 memorandum Secretary Ross stated that he “began a thorough assessment” of whether to add a citizenship question “[f]ollowing receipt” of a December 2017 letter from the Department of Justice (DOJ) requesting citizenship data to enforce the Voting Rights Act’s prohibition against diluting the voting power of minority groups.

In the latest twist in Virginia’s redistricting saga, Virginia House of Delegates v. Bethune-Hill, the Supreme Court must resolve a showdown between the Virginia House of Delegates and the Virginia Attorney General regarding who may litigate the case, among many other issues.

Plaintiffs, a number of Virginia voters, allege that the Virginia legislature engaged in unconstitutional racial gerrymandering when it constructed 12 majority-black Virginia House of Delegates districts during the 2011 redistricting cycle. More specifically, the plaintiffs argue that requiring each of these districts to contain a minimum 55% black voting age population (BVAP) was unnecessary for black voters to elect their preferred candidates per the Voting Rights Act. Plaintiffs claim this minimum was set to reduce the influence of black voters in other districts.

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