FedSoc Blog

On March 28, the Supreme Court heard oral argument in Fla. v. Dept. of Health and Human Services and Nat'l Fed. of Ind. Business v. Sebelius, two of the three cases before the Court involving the Patient Protection and Affordable Care Act of 2010, sometimes referred to as Obamacare or the Healthcare Act.  A common question raised in the two cases is whether Congress can lawfully withhold federal Medicaid funds from States that do not comply with the requirements of the Healthcare Act, or whether this amounts to unlawful coercion.

Both cases also raise the question whether, if the individual mandate requiring Americans to obtain health insurance or pay a penalty is deemed unconstitutional, the remainder of the Healthcare Act still survives. 

To discuss the coercion issue, we have Richard Epstein, professor at New York University School of Law and professor emeritus at the University of Chicago Law School, and Michael Greve, who is the John G. Searle Scholar at the American Enterprise Institute.

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According to Bloomberg News:

The U.S. Supreme Court limited the reach of a law that protects American citizens from torture in other countries, ruling that victims can sue only individuals, not organizations or corporations.

The justices unanimously threw out a suit filed against the Palestinian Authority and Palestinian Liberation Organization by the relatives of Azzam Rahim, an American allegedly tortured and murdered in the West Bank during the 1990s.

The ruling is a prelude to a dispute the court will take up in its next term, when it will use a case involving Royal Dutch Shell Plc (RDSA) to consider the scope of a similar law that applies to non-citizens, the Alien Tort Statute.

Multinational companies have faced dozens of suits under the two laws accusing them of playing roles in human rights violations, environmental wrongdoing and labor abuses. Exxon Mobil Corp. (XOM), Coca-Cola Co. (KO), Pfizer Inc. (PFE), Unocal Corp., Chevron Corp. (CVX), Ford Motor Co. (F) and KBR Inc. (KBR) have all been sued.

In the Palestinian case, the central issue was a provision in the 1991 Torture Victim Protection Act that authorizes suits against “an individual” engaged in torture. The Supreme Court today upheld a lower court by saying that language excludes corporations or organizations such as the PLO and Palestinian Authority.

“The text of the TVPA convinces us that Congress did not extend liability to organizations, sovereign or not,” Justice Sonia Sotomayor wrote for the court. “There are no doubt valid arguments for such an extension. But Congress has seen fit to proceed in more modest steps in the act.”

The ruling doesn’t necessarily dictate how the court will rule on the Alien Tort Statute, which doesn’t include a similar reference to “an individual.”

On March 6, 2012 The Federalist Society aired a SCOTUScast on the case featuring Northwestern Univeristy Law Professor Eugene Kontorovich.  You can listen to it here.

On March 5, the Supreme Court announced its decision in Martel v. Clair. The question in this case was whether a state prisoner on death row is entitled to replace his court-appointed attorney with a new court-appointed attorney on the grounds that--according to the prisoner--the first court-appointed attorney had failed to pursue potentially important evidence relating to prisoner’s case.  The federal district court had denied the prisoner’s request, but the U.S. Court of Appeals for the Ninth Circuit determined that the “interests of justice” standard applied in non-capital cases should govern the prisoner’s request for substitution of counsel, and directed the lower court to reconsider the prisoner’s request.

In a unanimous opinion delivered by Justice Kagan, the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case for further proceedings.  The Court agreed that the “interests of justice” should apply, but held that the federal district court had not abused its discretion in denying the prisoner’s request for new counsel.

To discuss the case, we have Ronald Eisenberg, who is the Deputy District Attorney for the Law Division at the Philadelphia District Attorney’s Office.

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On February 22, the Supreme Court announced its decision in Messerschmidt v. Millender.  This case presented two questions.  The first was whether police officers are entitled to immunity from suit when their search of a gang member’s residence (for firearms and gang-related items) was based on a warrant that a court later determined to be overly broad and not reasonably supported by probable cause.  The second question was whether the standard applicable to immunity determinations in such circumstances--a standard that asks whether the warrant was so lacking in indicia of probable case as to render official belief in its existence entirely unreasonable--is problematic and should be altered.

In an opinion delivered by Chief Justice Roberts,  the court held by a vote of 6-3 that the officers searching the residence were entitled to immunity from suit with respect to their search for firearms and gang-related materials.  The court also declined to refashion the “lacking indicia of probable cause” standard.  Justices Scalia, Kennedy, Thomas, Breyer, and Alito joined the majority opinion.  Justice Breyer filed a concurring opinion, and Justice Kagan filed an opinion concurring in part and dissenting in part.  Justice Sotomayor, joined by Justice Ginsburg, filed a dissenting opinion. 

We have Joshua Skinner, an attorney at Fanning Harper Martinson Brandt & Kutchin, to discuss the case.

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On March 19, the Supreme Court heard oral argument in Southern Union Company v. United States. The question in this case is whether the imposition of criminal fines is subject to the Fifth and Sixth Amendment principles articulated in Apprendi v. New Jersey, which held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 

To discuss the case, we have Ryan Scott, who is an associate professor at Indiana University Maurer School of Law.

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On February 29, the Supreme Court heard oral argument in Armour v. Indianapolis. The question presented in the case is whether a local government violated the Equal Protection Clause when it forgave the obligations of taxpayers who had elected to pay on a multi-year installment plan, but refused to refund payments made by similarly situated taxpayers who had paid their assessments up front and in full.

To discuss the case, we have Shay Dvoretzky, a partner at Jones Day.

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On February 29, the Supreme Court announced its decision in Kurns v. Railroad Friction Products Corp. The question in the case was whether the federal Locomotive Inspection Act (LIA) preempted design-defect and failure-to-warn claims brought under state law for injuries relating to asbestos contained in locomotive parts.

In an opinion delivered by Justice Thomas, the Court held by a vote of 6-3 that the LIA did preempt such state law claims.  Chief Justice Roberts and Justices Scalia, Kennedy, Alito, and Kagan joined Justice Thomas’ opinion. Justice Kagan also filed a concurring opinion. Justice Sotomayor, joined by Justices Ginsburg and Breyer, filed an opinion concurring in part and dissenting in part.

To discuss the case we have Mark Behrens, a partner at Shook, Hardy & Bacon, L.L.P.

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On March 20, the Supreme Court announced its decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc.  The question in the case was whether a patent can be issued for an observed correlation between blood test results and patient reactions to prescription drugs.

In an opinion delivered by Justice Breyer, the Court unanimously held that such a patent effectively attempts to claim underlying laws of nature, and is therefore invalid.

We have Adam Mossoff to discuss the case.

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The U.S. Supreme Court has agreed to hear a case regarding whether Citizens United, which applied to federal campaign finance, also applies to the states.  UPI reports:

The U.S. Supreme Court agreed to consider taking another bite of the corporate political free speech apple recently, accepting a petition asking justices to summarily overturn a Montana Supreme Court decision petitioners say flies in the face of Citizens United.

Citizens United vs. Federal Election Commission is the Supreme Court's 5-4 decision two years ago that basically negated campaign finance laws. In its ruling, the court said Congress shouldn't be allowed to limit the amount corporations, unions and similar entities give to campaigns.

In upholding a ban on corporate independent expenditures in state elections, the Montana Supreme Court determined that "unlike Citizens United, this case concerns Montana law, Montana elections and it arises from Montana history."

That ruling, the petition said, raises the question for the U.S. Supreme Court to consider: "Whether Montana is bound by the holding of Citizens United, that a ban on corporate independent political expenditures is a violation of the First Amendment, when the ban applies to state, rather than federal, elections."

In asking for a summary judgment, the petition (American Tradition Partnership, et al., vs. Bullock, et al.) by two Montana corporations said the state's top court was wrong in its reasoning about the origin of the flow of the vast sums of money pouring into election campaigns, among other things. The money isn't coming from corporations, but people, the petition argued, and people have been free to spend pretty much as they see fit since 1976.

"The core holding of Citizens United," the petition argued, "is that the independence of independent expenditures means that they pose no cognizable quid-pro-quo corruption risk and no other cognizable governmental interest justifies banning corporate independent expenditures. Thus, the Montana Supreme Court's decision constitutes an attempt to force the reconsideration of Citizens United simply because it disagrees with the opinion.

For The Federalist Society's previous coverage of Citizen United, see William R. Maurer's white paper "Illuminating Citizens United: What the Decision Really Did."  You can also listen to FedSoc's post-decision SCOTUScast with Edward B. Foley, Erik S. Jaffe,and Bradley A. Smith. 

On March 21, the Supreme Court heard oral argument in Reichle v. Howards. This case concerns an incident that occurred when a citizen briefly touched Vice President Cheney during a public appearance, made an anti-war remark to him, and was arrested some time later by Secret Service agents but was not ultimately prosecuted.  The two questions in this case are: 1) whether, if probable cause to make the arrest did exist, the citizen may nevertheless sue the agents for retaliatory conduct in violation of the First Amendment; and 2) whether the agents were entitled to immunity from such a lawsuit under federal law.

To discuss the case, we have Scott Broyles, assistant professor at Charlotte School of Law.

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On March 20, the Supreme Court announced its decision in Roberts v. Sea-Land Services. The case involved the Longshore and Harbor Workers’ Compensation Act, which provides compensation in cases of disability but caps benefits at twice the national average weekly wage for the fiscal year in which the injured worker is “newly awarded compensation.”  The question was whether the determination as to when the worker is “newly awarded compensation” is affected by the issuance of a compensation order on the worker’s behalf.

In an opinion delivered by Justice Sotomayor, the Court held 8-1 that a worker is ”newly awarded compensation” when the worker “first becomes disabled and thereby becomes statutorily entitled to benefits, no matter whether, or when, a compensation order issues on his behalf.”  Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, Breyer, Alito, and Kagan joined Justice Sotomayor’s opinion.  Justice Ginsburg filed an opinion concurring in part and dissenting in part.

To discuss the case, we have Rod Sullivan, an assistant professor at the Florida Coastal School of Law.

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The Supreme Court ruled today in Florence v. Board of Freeholders that it is not a violation of the Fourth Amendment to perform suspicionsless searches of every person held in jail  SCOTUSblog analyzes the decision:

...the Supreme Court divided 5-4 Monday in ruling that every person arrested and held temporarily can be subjected to a routine strip search, so long as it involves only a visual inspection without touching or abusive gestures.  The prisoner, however, may be told to manipulate some part of the body.  Some difference of emphasis among the five Justices in the majority made it appear that the decision might be more limited than at first glance.

The ruling, it appeared, did not authorize jail officials to conduct a strip search unless the prisoner was to be placed among other prisoners at the facility.  Two Justices wrote separately in an effort to stress that aspect of the ruling, and their votes were essential to the 5-4 result.

The decision was a clear defeat for challengers to strip searches as a general policy.  The Court explicitly refused to limit the authority to use strip searches only to situations in which a specific individual gave officers a reason to consider that prisoner to be dangerous or likely to be carrying a concealed weapon or drugs.   The same kind of visual inspection of an arrestee’s naked body, the Court declared, can be applied to anyone placed in the general population of a jail or prison, even if only temporarily.

In October 2011, Sarah Hart, Chief Performance Officer, at the Philadelphia District Attorney’s Office, discussed the issue in a post-argument SCOTUScast.  You can listen to it here.

On March 28, 2012, the Supreme Court heard oral argument in Fla. v. Dept. of Health and Human Services and Nat'l Fed. of Ind. Business v. Sebelius, two of the three cases before the Court involving the Patient Protection and Affordable Care Act of 2010, sometimes referred to as Obamacare or the Healthcare Act.  Both cases raise the question of severability--namely, whether the remainder of the Healthcare Act still survives if the individual mandate requiring Americans to obtain health insurance or pay a penalty is deemed unconstitutional.

Both cases further raise the question whether Congress may lawfully withhold federal Medicaid funds from States that do not comply with the requirements of the Healthcare Act, or whether this amounts to unlawful coercion.  That issue will be the subject of a separate podcast.

To discuss the issue of severability, we have David Rivkin, a partner at Baker Hostetler, and Ian Millhiser, a policy analyst at the Center for American Progress.

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On March 26-27, 2012, the Supreme Court heard oral argument in U.S. Department of Health and Human Services v. Florida, one of three cases before the Court involving the Patient Protection and Affordable Care Act of 2010, sometimes referred to as Obamacare or the Healthcare Act.  This case presents the question whether Congress has power under the Constitution to require that virtually all Americans either obtain health insurance or pay a penalty.  This requirement is commonly referred to as the individual mandate.  

The case also raises the question whether the Anti-Injunction Act prohibits a challenge to the validity of the Healthcare Act until the individual mandate takes effect in 2014.  This question was the subject of a separate podcast.

To discuss the individual mandate we have Ilya Somin, professor at the George Mason University School of Law, and Orin Kerr, professor at the George Washington University Law School.

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On February 21,  the Supreme Court announced its decision in Howes v. Fields.  The question in the case was whether a prisoner who was removed from the general prison population for the purpose of being questioned about outside events was “in custody” during his interrogation, and therefore entitled to Miranda warnings.

In an opinion delivered by Justice Alito, the Court held by a vote of 6-3 that, under the facts of this case, the prisoner was not “in custody” for Miranda purposes.  Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Kagan joined Justice Alito’s opinion.  Justice Ginsburg filed an opinion concurring in part and dissenting in part, which was joined by Justices Breyer and Sotomayor.

To discuss the case, we have Mark Brnovich, Director of the Arizona Department of Gaming and a former federal and state prosecutor.

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