Lisa Soronen

Author Articles

Emotions ran high at the Supreme Court today in oral argument of what is considered to be the most important abortion cases in over 20 years. Chief Justice Roberts repeatedly tried to cut off Justice Sotomayor as she asked questions when time was up of one of the attorneys arguing. When she and Justice Ginsburg did it again he didn’t even try to stop them.

Perhaps more than any other issue all the Justices except Justice Kennedy are considered to have entrenched views on abortion. The questions for Justice Kennedy following oral argument appear to be whether he feels he has enough information to decide this case, and if he does, where he stands.  

The Supreme Court held 6-2 in Gobeille v. Liberty Mutual Insurance Company that the Employee Retirement Income Security Act (ERISA) preempts Vermont’s all-payers claims database (APCD) law. Seventeen other states collect health care claims data. The State and Local Legal Center (SLLC) filed an amicus brief arguing against ERISA preemption, which Justice Ginsburg cited three times in her dissenting opinion.

ERISA applies to the majority of health insurance plans. Rather than guaranteeing substantive benefits, it mandates oversight over plans. ERISA preempts all state laws that “relate” to any employee benefits plan. Vermont’s APCD law requires health insurers to report to the state information related to health care costs, prices, quality, and utilization, among other things.

In a 2-1 decision the Sixth Circuit Court of Appeals ruled that it—rather than a federal district court—has jurisdiction to decide whether the Clean Water Rule, clarifying the scope of the “waters of the United States (WOTUS),” exceeds the Environmental Protection Agency’s (EPA) authority.

In October the Sixth Circuit assumed it had jurisdiction and issued a temporary nationwide stay of the rule. The WOTUS rule defines “waters the United States,” according to the EPA, “through increased use of bright-line boundaries” to make “the process of identifying waters protected under the Clean Water Act easier to understand, more predictable and consistent with the law and peer reviewed science, while protecting the streams and wetlands that form the foundation of our nation’s water resources.”

The Tenth Circuit held that a Colorado law requiring remote sellers to inform Colorado purchasers annually of their purchases and send the same information to the Colorado Department of Revenue is constitutional.

In Quill Corp. v. North Dakota, decided in 1992, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect use tax. To improve tax collection, in 2010 the Colorado legislature began requiring remote sellers to inform Colorado purchasers annually of their purchases and send the same information to the Colorado Department of Revenue. The Direct Marketing Association sued Colorado in federal court claiming the law was unconstitutional under Quill

U.S. Supreme Court Justice Antonin Scalia’s death on Feb. 13 came at an uncertain time in our nation’s history, as we are quickly approaching a presidential election. Unsurprisingly, while some of the news coverage has focused on the substance of his nearly 30-year career as a Supreme Court justice, much of it has focused on the challenges of replacing him. The public knew Justice Scalia as a conservative, particularly on social issues like abortion, the death penalty and same-sex marriage. Attorneys will remember Justice Scalia as an “originalist,” who believed that the U.S. Constitution should be interpreted as the founders intended, and a “textualist,” who interpreted laws by looking only at the words on the page. Court watchers admired Justice Scalia’s beautifully written, clear and often colorful opinions. But what was Justice Scalia’s impact on state and local governments?

So the million dollar question (other than who will fill Justice Scalia’s seat) is what will happen to undecided Supreme Court cases heard or to be heard this term.

The short answer is it depends and in all instances isn’t entirely clear.

If a case isn’t 4-4 it will be decided as usual with only eight Justices.

If a case is going to be decided 4-4 the Court has two choices:  wait for the ninth Justice to join the Court and rehear the case or issue a non-precedential 4-4 decision that affirms the lower court decision.

Justice Scalia’s death this weekend comes at an uncertain time in our Nation’s history as we are quickly approaching a Presidential election. Unsurprisingly, while some of the news coverage has focused on the substance of his nearly 30 year career as a Supreme Court Justice, much of it has focused on the challenges of replacing him.

The public knew Justice Scalia as a conservative, particularly on social issues like abortion, the death penalty, and same-sex marriage. Attorneys will remember Justice Scalia as an “originalist” who believed that the Constitution should be interpreted as the founders intended and a “textualist” who interpreted laws by looking only at the words on the page. Court watchers admired Justice Scalia’s beautifully written, clear, and often colorful, opinions.  

But what was Justice Scalia’s impact on state and local government?

What happened when land on an Indian reservation was opened to settlers? Did the land lose its reservation status? What if an Indian tribe tries to regulate a city now located on that land?

In Solem v. Bartlett (1984) the Supreme Court articulated a three-part test to determine if a reservation has been diminished. Courts must look at “statutory language used to open the Indian lands,” “events surrounding the passage of a surplus land Act,” and “events that occurred after the passage of a surplus land Act.”

In Nebraska v. Parker when the Omaha Tribe tried to enforce its new alcoholic beverages tax in the Village of Pender, Nebraska, the village objected. It claimed it is not located on the Omaha Indian Reservation because Congress diminished the reservation in 1882. The 1882 Act allotted less than 1,000 out of 50,000 acres of the western portion of the reservation to tribe members; the remaining acres were sold to non-Indians.  

Imagine yourself (if you can) on an Alaska moose hunting trip riding along in your hovercraft. Oh no your hovercraft has just broken down! While you are repairing it, three National Park Service (NPS) law enforcement officers inform you that you cannot operate it here because of an NPS regulation banning hovercrafts.

You are shocked because you know that while the portion of the Nation River you are on is contained in a national park, Alaska owns (at least) the land under the Nation River.

So what would you do? John Sturgeon sued.   

The Supreme Court has issued a stay preventing the Clean Power Plan regulations from going into effect until the D.C. Circuit Court of Appeals, and the Supreme Court if it chooses to, rules on the regulations.

The Clean Power Plan requires power plants to reduce carbon emissions and establishes state-by-state targets to accomplish this goal.

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