Monthly Archives: June 2012

Health care in plain english (by SCOTUS)

Let’s break down what could happen tomorrow, in Plain English.

First off, although (almost) everyone’s focus will be on health care, the Court will also decide two other cases:  United States v. Alvarez, about whether a law that makes it a crime to lie about having received military honors violates the right to freedom of speech; and First American Financial Corp. v. Edwards, about whether homebuyers who aren’t injured by kickbacks between banks and title companies can still file suit.

In another year, both of these cases would be high-profile ones in their own right. Alvarez involves very interesting First Amendment issues, and First American – while sounding a bit dry and technical – could announce very important rules on when lawsuits can be filed.  But tomorrow they will be mere footnotes in history.  They matter here because they will probably be announced before health care, pushing that decision to 10:15 or so before it is issued.

Once the Court does turn to health care, there are four questions before it.  Three of those questions revolve around the “minimum coverage” provision, popularly known as the “individual mandate.”  Of course, the question keeping the White House, Congress, and everyone else in the country on pins and needles is whether the mandate – which would require virtually all Americans to buy health insurance by 2014 or pay a penalty – is constitutional:  can Congress, using its power under the Constitution to regulate commerce between the states, make people buy health insurance?  (More detailed Plain English discussions of the substantive issues in the case, including the individual mandate, are available at this link.)

But before the Court can decide whether the mandate is constitutional, it must first decide whether it can even rule on this question at all.  The potential obstacle to the Court’s review of the mandate is the Anti-Injunction Act (AIA), an 1867 law that prohibits lawsuits to challenge a tax until the tax has actually gone into effect and needs to be paid.  At least one lower court has concluded (and the federal government once even argued) that the “penalty” which would be imposed on someone who doesn’t buy health insurance under the mandate is a “tax”; therefore, this line of reasoning goes, someone who believes that the mandate is unconstitutional cannot bring a lawsuit making that argument until after the mandate actually goes into effect in 2014.

If the AIA applies to the lawsuit over the mandate, then the Court cannot consider the challenge to the mandate even if both the federal government and the states challenging the law want the Supreme Court to decide the case.  So if at least five of the nine members of the Court were to conclude that the AIA does apply to the mandate, that would be the end of the matter.  The Court would not discuss, much less rule on, whether the mandate is constitutional, nor would there be any reason for the Court to weigh in on what parts of the law, if any, can survive if the law is unconstitutional – the “severability” question.  Instead, the Court would skip straight to the fourth and final question, dealing with the constitutionality of a provision that expands eligibility for Medicaid, the state-federal partnership that provides health care to the poor.

What the Court will in fact decide about the AIA obviously remains to be seen tomorrow.  After the oral argument in March, most Court watchers believed that the Court would not regard the AIA as a bar to reviewing the mandate.  But if that issue went the other way, that decision would postpone a decision on the mandate until well after the presidential election – which might be an appealing option both for political reasons and if the Court is having a hard time coming up with a majority to resolve the mandate issue.

At least for tomorrow, all that anyone will really be interested in with regard to the AIA is the Court’s bottom line:  can it review the mandate issue or not?  If it agrees with both sides that it can, all eyes will then turn to that constitutional question.  Most Americans care about the bottom line:  is the mandate constitutional?  Even if the Justices disagree on the reasoning, the mandate would still survive.

If the mandate does survive, then the Court’s work is almost done; all that would be left would be the Medicaid issue, which we will discuss in a moment.  But if at least five Justices vote to strike down the mandate, then the Court will have to decide what other parts of the law, if any, fall with it.  On this “severability” question, the Court will again have several options.  It could allow all of the rest of the ACA to stay in place; it could conclude that the rest of the law must go too (as the states have argued); or it could settle on a middle ground – for example, as the federal government argued, by striking down the provisions that are inextricably linked to the mandate but allowing the others to go into effect.

Finally, as long as the Court doesn’t conclude that the entire ACA must fall, it will have to resolve one more issue:  does another provision of the Act violate the Constitution because it effectively coerces the states, requiring them to comply with the ACA’s expanded Medicaid eligibility requirements or risk losing all of the money that they receive for Medicaid from the federal government?  The lower court agreed with the federal government that it does not, and the Justices seemed to be leaning that way at oral argument.  But as we saw on Monday when the Court announced its decision in theArizona case, the oral argument is not always a foolproof predictor of how the opinion will turn out.

via Anticipating the health-care decision: In Plain English : SCOTUSblog.

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More on Arizona v. United States

The Supreme Court did not strike down section 2(B).  That section requires local law enforcement officials to determine the immigration status of any person stopped under state or local law if “reasonable suspicion” exists that the person is unlawfully present in the U.S. In fact, the Supreme Court wants more information about how 2(B) will be interpreted by state courts and how the section will be implemented. So the jury is still out on 2(B).

NPR (Nina Totenberg) described it this way: “The state courts have not yet construed 2(B).  If the state courts go on to construe it as, ‘you stop the person and can resolve the issue right at the stop, or you release the person and look into it later,’ that may be permitted – but it won’t be if you detain the person until you resolve the issue.”

Here is court’s language:

“However the law is interpreted, if §2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive pre- emption—at least absent some showing that it has other consequences that are adverse to federal law and its objec¬tives.    There  is  no  need  in  this  case  to  address  whether  reasonable suspicion of illegal entry or another immigra¬tion crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law.”

Before that the Court talked about how a longer stop solely for immigration would disrupt federal power and not be permitted:

“Some who support the challenge to §2(B) argue that, in practice, state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status. See,  e.g., Brief for Former Arizona Attorney General Terry Goddard et al. as Amici Curiae 37, n. 49. Detaining individuals solely to verify their immi¬gration status would raise constitutional concerns.  See, e.g., Arizona v. Johnson, 555 U. S. 323, 333 (2009); Illinois v. Caballes, 543 U. S. 405, 407 (2005) (“A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission”). And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. Cf. Part IV–C,  supra (concluding that Ari¬zona may not authorize warrantless arrests on the basis of removability). The program put in place by Congress doesnot allow state or local officers to adopt this enforcement mechanism. But §2(B) could be read to avoid these concerns.  To take  one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification.  The first sentence of §2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with ICE if there is reasonable suspicion that his presence in the United States is unlawful.  The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry. See Reply Brief for Petitioners 12, n. 4 (“[Section 2(B)] does not require the verification be completed during the stop or detention if that is not reasonable or practica¬ble”).”

“Arizona may have understandable frustrations with the problems caused by illegal immigration while that process [of rational civic discourse] continues, but the State may not pursue policies that undermine federal law.”

via ImmigrationProf Blog: Arizona v. United States — Not A Victory for Arizona.

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Arizona immigration law dismantled

Arizona police may continue to demand proof of immigration status, but other provisions of the controversial immigration law were overturned today by the U.S. Supreme Court.   The court voted 5-3, with Justice Anthony Kennedy writing the opinion.  Justices Antonin Scalia, Clarence Thomas and Samuel Alito wrote opinions concurring in part and dissenting in part. Justice Elana Kagan recused. The case is Arizona v. United States.

The court found key provisions of the law invalid: Section 3 making it a misdemeanor to fail to register , Section 5C making it a misdemeanor  to work   and Section 6 warrantless arrests of aliens suspected of being removable.  “ This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect,”  Kennedy  wrote.

via Arizona immigration law dismantled – MinnLawyer Blog.

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The remaining merits cases as of June 23: In Plain English

On Monday morning the Court is once again scheduled to sit to release opinions in argued cases as well as orders from its June 21 Conference.  Counting the health care cases as one “case,” and the juvenile life-without-parole cases as one “case” too, this week the Court will decide five argued cases, issuing between six and eight opinions.

Here – after the jump – are the “Plain English” questions at issue in each of the outstanding cases.


First American Financial Corp. v. Edwards

Plain English Issue: Whether lawsuits under the Real Estate Settlement Procedures Act, which allows homebuyers to sue banks and title companies when they pay kickbacks for the closing of a mortgage loan, are constitutional if the kickback does not affect the price or quality of the services provided?


United States v. Alvarez

Plain English Issue: Whether a federal law that makes it a crime to lie about receiving military medals or honors violates the First Amendment’s guarantee of the right to free speech.


Miller v. Alabama and Jackson v. Hobbs

Plain English Issue: Whether a sentence of life without parole for someone who was convicted of murder when he was fourteen violates the Constitution’s prohibition on cruel and unusual punishment.


The health care cases

Department of Health and Human Services v. Florida

Plain English Issue: 1 Whether Congress has the power under the Constitution to require virtually all Americans to obtain health insurance or pay a penalty; and 2 whether the Anti-Injunction Act, which prohibits taxpayers from filing a lawsuit to challenge a tax until the tax goes into effect and they are required to pay it, prohibits a challenge to the Act’s provision requiring virtually all Americans to obtain health insurance or pay a penalty until after the provision goes into effect in 2014.

Nat’l Federation of Independent Business v. Sebelius

Plain English Issue: 1 Whether Congress can require states to choose between complying with provisions of the Patient Protection and Affordable Care Act or losing federal funding for the Medicaid program; and 2 whether, if the Court concludes that the provision of the Act requiring virtually all Americans to obtain health insurance or pay a penalty is unconstitutional, the rest of the Act can remain in effect or must also be invalidated.

Florida v. Department of Health and Human Services

Plain English Issue: 1 Whether Congress can require states to choose between complying with provisions of the Patient Protection and Affordable Care Act or losing federal funding for the Medicaid program; and 2 whether, if the Court concludes that the provision of the Act requiring virtually all Americans to obtain health insurance or pay a penalty is unconstitutional, the rest of the Act can remain in effect or must also be invalidated.


Arizona v. United States

Plain English Issue: Whether an Arizona law that, among other things, requires police officers to check the immigration status of anyone whom they arrest, allows police to stop and arrest anyone whom they believe to be an illegal immigrant, makes it a crime for someone to be in the state without valid immigration papers, and makes it a crime to apply for or hold a job in Arizona without proper papers, is invalid because it is trumped by federal immigration laws.

via The remaining merits cases as of June 23: In Plain English : SCOTUSblog.

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NLRB Issues Primer On Supervisory Status

Alternative Concepts, 358 NLRB No. 38 April 27, 2012, is an interesting case. The Board reaffirms the Oakwood line of cases and summarizes the applicable law as follows:

The Board set out the analytical framework for determiningsupervisory status in Oakwood Healthcare, 348 NLRB 686 2006, in which it defined the statutory terms“assign,” “responsibly to direct,” and “independentjudgment.” See also Croft Metals, 348 NLRB 717, 721–722 2006, and Golden Crest Healthcare Center, 348NLRB 727, 728, 731 2006. The burden of provingsupervisory status rests on the party asserting that suchstatus exists. Oakwood Healthcare, 348 NLRB at 694,citing Dean & Deluca New York, 338 NLRB 1046, 10472003. The party seeking to prove supervisory statusmust establish it by a preponderance of the evidence. 1047–1048; Springfield Terrace LTD, 355 NLRB 937,941 2010. Mere inferences or conclusionary statements,without detailed, specific evidence, are insufficientto establish supervisory authority. Golden CrestHealthcare Center, 348 NLRB at 731; Lynwood Manor,350 NLRB 489, 490 2007.

Like the other statutory indicia of supervisory status,the authority to assign and responsibly to direct otheremployees are not determinative of supervisory statusunless they are exercised using independent judgment.To exercise “independent judgment,” an individual mustact or effectively recommend action “free of the controlof others,” using a degree of discretion rising above “themerely routine or clerical.” Oakwood Healthcare, 348NLRB at 693.In Oakwood Healthcare, 348 NLRB at 689, the Boardexplained that assignment means designating an employeeto a place such as a location, department, orwing, appointing an employee to a time such as a shiftor overtime period, or giving an employee significantoverall duties as opposed to ad hoc instructions that theemployee perform a discrete task. There must be specificevidence that a putative supervisor “has the abilityto require that a certain action be taken; supervisory authorityis not established where the putative supervisorhas the authority merely to request that a certain actionbe taken.” Golden Crest Healthcare Center, 348 NLRBat 729.The Board in Oakwood Healthcare, 348 NLRB at 691,also interpreted the meaning of the phrase “responsiblyto direct”: “If a person on the shop floor has ‘men underhim,’ and if that person decides ‘what job shall be undertakennext or who shall do it,’ that person is a supervisor,provided that the direction is both ‘responsible’ and carriedout with independent judgment.” The Board furtherheld that, for direction to be “responsibl[e],” the persondirecting the performance of a task must be accountablefor its performance. To establish accountability for purposesof responsible direction, the party with the burdenof proof must show that “the employer delegated to theputative supervisor the authority to direct the work [ofothers] and the authority to take corrective action, if necessary,”and also that “there is a prospect of adverse consequencesfor the putative supervisor” if the putativesupervisor “does not take these steps.”12 Id. at 692. Evidenceof actual accountability must be present to proveresponsible direction. Alstyle Apparel, 351 NLRB 1287,1287 2007; Golden Crest Healthcare Center, 348 NLRB at 731.B.We find that neither the crew dispatchers nor line controllers are statutory supervisors.

via Adjunct Law Prof Blog: NLRB Issues Primer On Supervisory Status.

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Supreme Court Rules Against Union in Case Expanding First Amendment Rights of Nonmembers – News – ABA Journal

The U.S. Supreme Court has ruled that an opt-out system doesn’t give sufficient protection to public sector employees who don’t want to pay special assessments for political activities of unions they choose not to join.

The court ruled for nonmembers of the Service Employees International Union who objected to a temporary assessment imposed to fight two ballot initiatives. Seven justices agreed that the union violated the First Amendment by failing to give notice of the intended special assessment, but only five joined the majority opinion PDF endorsing an opt-in system in such circumstances.

The nonmembers already paid a required annual fee to cover the cost of collective bargaining, but they did not want to pay the special assessment. The union provided no notice before charging the nonmembers for its “political fight-back fund” to oppose the ballot measures, though it reduced the amounts by nearly half for those who later objected. “This aggressive use of power by the SEIU to collect fees from nonmembers is indefensible,” Justice Samuel A. Alito Jr. wrote in the majority opinion.

One of the ballot measures opposed by the union would have benefited the nonmembers, since it required unions to obtain employees’ affirmative consent before charging fees to be used for political purposes.

Alito said prior cases have given “surprisingly little attention” to the distinction between opt-out and opt-in systems for nonmembers of public sector unions who don’t want to pay for political activities.

“Our cases have tolerated a substantial impingement on First Amendment rights by allowing unions to impose an opt-out requirement at all,” Alito wrote. “In the new situation presented here, we see no justification for any further impingement. … Therefore, when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh … notice and may not exact any funds from nonmembers without their affirmative consent.”

via Supreme Court Rules Against Union in Case Expanding First Amendment Rights of Nonmembers – News – ABA Journal.

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NLRB launches webpage describing Protected Concerted Activity | NLRB

The National Labor Relations Board today made public a webpage that describes the rights of employees to act together for their mutual aid and protection, even if they are not in a union.

The page, at, tells the stories of more than a dozen recent cases involving protected concerted activity, which can be viewed by clicking points on a map. Among the cases: A construction crew fired after refusing to work in the rain near exposed electrical wires; a customer service representative who lost her job after discussing her wages with a coworker; an engineer at a vegetable packing plant fired after reporting safety concerns affecting other employees; a paramedic fired after posting work-related grievances on Facebook; and poultry workers fired after discussing their grievances with a newspaper reporter.

Some cases were quickly settled after charges were filed, while others progressed to a Board decision or to federal appellate courts. They were selected to show a variety of situations, but they have in common a finding at some point in the NLRB process that the activity that the employees undertook was protected under federal labor law.

The right to engage in certain types of concerted activity was written into the original 1935 National Labor Relations Act’s Section 7, which states that:  “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.”

That right has been upheld in numerous decisions by appellate courts and by the U.S. Supreme Court over the years. Non-union concerted activity accounts for more than 5% of the agency’s recent caseload.

via NLRB launches webpage describing Protected Concerted Activity | NLRB.

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Ethics Opinion Warns Lawyers About Perils of Unintentional Juror Contact During Online Research

Lawyers may research potential and sitting jurors on Facebook and other social media sites, but communications with jurors should be avoided, according to a new ethics opinion.

The opinion by the New York City Bar Association’s Committee on Professional Ethics notes that it’s not always easy to discern whether a visit to a website will result in a communication.

The opinion says it is unethical for lawyers or those working on their behalf to make juror friend requests, a finding that is in accord with a recent opinion by New York County Lawyers’ Association. But the City Bar opinion sets out to address a broader issue: what constitutes a prohibited ex parte communication with a juror.

According to the opinion, the ban on communication is violated not only through friend requests, but also when the lawyer is aware that his or her review of the juror’s comments, pages or posts will be disclosed to the juror. In addition, a violation might occur even if the communication to the juror is inadvertent or unintended.

“In the social media context, due to the nature of the services, unintentional communications with a member of the jury venire or the jury pose a particular risk,” the opinion says. “For example, if an attorney views a juror’s social media page and the juror receives an automated message from the social media service that a potential contact has viewed her profile—even if the attorney has not requested the sending of that message or is entirely unaware of it—the attorney has arguably ‘communicated’ with the juror.”

Although the relevant rule appears to bar even inadvertent communication, the ethics committee takes no position on whether such a communication would in fact be a violation. “Rather, the committee believes it is incumbent upon the attorney to understand the functionality of any social media service she intends to use for juror research,” the opinion says. “If an attorney cannot ascertain the functionality of a website, the attorney must proceed with great caution in conducting research on that particular site, and should keep in mind the possibility that even an accidental, automated notice to the juror could be considered a violation.”

Any lawyer conducting online research who learns of juror misconduct is obligated to promptly notify the court, the opinion says. The bar’s 44th Street Blog has a summary.

via Ethics Opinion Warns Lawyers About Perils of Unintentional Juror Contact During Online Research – News – ABA Journal.

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Further Prop. 8 review denied by court of appeals

The Ninth Circuit Court refused on Tuesday to reconsider the decision in February striking down California’s Proposition 8, the voter-approved ban on same-sex marriages in the state.  The Court, however, put the case on hold for at least 90 days to allow the proponents of the ballot measure to seek to appeal to the Supreme Court.  The denial came over the dissents of three judges, who called this a “momentous case” and argued that the divided decision of a three-judge panel had resulted from a “gross misapplication” of a key Supreme Court ruling on gay rights.  One other judge dissented, but did not join the three in their objection.  The combination of orders and separate opinions can be read here.

The ruling will set the stage for a major test in the Supreme Court, although the panel ruling is a narrow one that explicitly avoided deciding whether gays and lesbians have a constitutional right to get married.  The two judges who were in the majority in ruling against Proposition 8 briefly defended the narrowness of their decision in a concurring opinion Tuesday.

After the panel decision, the supporters of the measure had asked the full Circuit Court to reconsider the case en banc.  At the request of an unidentified judge, a vote was taken among the 25 judges eligible to vote on the question, and a majority of 13 would have been required to grant such review.  The final vote thus appeared to be 21-4, because the dissenting member of the panel favored en banc review, but did not join the dissenting opinion by three other judges.

via Further Prop. 8 review denied by court of appeals (FINAL UPDATE) : SCOTUSblog.

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8th Circuit Tosses 19 Contempt Citations for Defendant Who Refused to Stand for Judge

A federal appeals court has ordered a judge to consider the religious rights of a defendant who claimed her Muslim religion prevented her from standing at the opening and close of court sessions.

The St. Louis-based 8th U.S. Circuit Court of Appeals ordered Chief U.S. District Judge Michael Davis of Minneapolis to reconsider 19 out of 20 contempt sanctions against Amina Farah Ali, report the Associated Press and the Minneapolis Star Tribune. The court said Ali’s religion claim should be evaluated under the Religious Freedom Restoration Act.

Davis had sentenced Amina Farah Ali to 100 days in jail for the 20 times she refused to rise over a two-day period in October 2011. Ali, who was accused of providing money to a terrorist group, is a Muslim who cited religious reasons for her refusal. Her lawyer had explained to the judge that Ali believes “she should not rise for persons when she does not rise for the prophet.”

The court said one contempt charge may stand because Ali remained seated one time without challenging a written order to follow court decorum. The other 19 contempt citations were based on conduct after Ali’s lawyer objected to the order.

Ali spent two days in jail. She relented and was released after three clerics who visited her advised she could stand for the court if she was “in a difficult situation, if [she was] fearful of [her] own life,” the 8th Circuit opinion (PDF) says.

The judge had evaluated Ali’s claim under the First Amendment without considering RFRA, the 8th Circuit said. The law requires the judge to consider whether his order directing Ali to stand was the least restrictive means of furthering a compelling government interest, according to the opinion.

The fact that Ali’s beliefs weren’t uniformly held by Muslims isn’t relevant, the appeals court said. “The [trial] court noted that Ali’s interpretation of Islamic doctrine was inconsistent with the interpretations of her co-defendant, the Muslim spectators in the courtroom, and the Muslim clerics who came to speak with her,” the appeals court said. “While these may be appropriate considerations in a First Amendment analysis of whether a practice is fundamental to a particular religion, … such considerations are irrelevant in the RFRA context so long as Ali’s objection to the pretrial order was rooted in her own sincerely held religious beliefs.”

Ali was convicted of providing material support to a known terrorist group. She had contended she didn’t know she was raising money for a terrorist group and intended only to benefit needy people in her native Somalia.

via 8th Circuit Tosses 19 Contempt Citations for Defendant Who Refused to Stand for Judge – News – ABA Journal.

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