Syllabus
SUPREME COURT OF THE UNITED STATES
295 U.S. 495
A. L. A. Schechter Poultry Corp. v. United States
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 854 Argued: May 2, 3,
1
935 — Decided: May 27, 1935 [*]
1. Extraordinary conditions, such as an economic crisis, may call for extraordinary remedies, but they cannot create or enlarge constitutional power. P. 528.
2. Congress is not permitted by the Constitution to abdicate, or to transfer to others, the essential legislative functions with which it is vested. Art. I, § 1; Art. I, § 8, par. 18. Panama Refining Co. v. Ryan,
293 U.S. 388
. P. 529.
3. Congress may leave to selected instrumentalities the making of subordinate rules within prescribed limits, and the determination of facts to which the policy, as declared by Congress, is to apply; but it must itself lay down the policies and establish standards. P. 530.
4. The delegation of legislative power sought to be made to the President by § 3 of the National Industrial Recovery Act of June 16, 1933, is unconstitutional (pp. 529 et seq.), and the Act is also unconstitutional, as applied in this case, because it exceeds the power of Congress to regulate interstate commerce and invades the power reserved exclusively to the States (pp. 542 et seq.).
5. Section 3 of the National Industrial Recovery Act provides that “codes of fair competition,” which shall be the ” standards of fair competition” for the trades and industries to which they relate, may be approved by the President upon application of representative associations of the trades or industries to be affected, or may be prescribed by him on his own motion. Their provisions [p496] are to be enforced by injunctions from the federal courts, and “any violation of any of their provisions in any transaction in or affecting interstate commerce” is to be deemed an unfair method of competition within the meaning of the Federal Trade Commission Act, and is to be punished as a crime against the United States. Before approving, the President is to make certain findings as to the character of the association presenting the code and absence of design to promote monopoly or oppress small enterprises, and must find that it will “tend to effectuate the policy of this title.” Codes permitting monopolies or monopolistic practices are forbidden. The President may “impose such conditions (including requirements for the making of reports and the keeping of accounts) for the protection of consumers, competitors, employees and others, and in the furtherance of the public interest, and may provide such exceptions and exemptions from the provisions of such code,” as he, in his discretion, deems necessary “to effectuate the policy herein declared.” A code prescribed by him is to have the same effect as one approved on application.
Held:
(1) The statutory plan is not simply one of voluntary effort; the “codes of fair competition” are meant to be codes of laws. P. 529.
(2) The meaning of the term “fair competition” (not expressly defined in the Act) is clearly not the mere antithesis of “unfair competition,” as known to the common law, or of “unfair methods of competition” under the Federal Trade Commission Act. P. 531.
(3) In authorizing the President to approve codes which “will tend to effectuate the policy of this title,” § 3 of the Act refers to the Declaration of Policy in § 1. The purposes declared in § 1 are all directed to the rehabilitation of industry and the industrial recovery which was the major policy of Congress in adopting the Act. P. 534.
(4) That this is the controlling purpose of the code now before the Court appears both from its repeated declarations to that effect and from the scope of its requirements. P. 536.
(5) The authority sought to be conferred by § 3 was not merely to deal with “unfair competitive practices” which offend against existing law, or to create administrative machinery for the application of established principles of law to particular instances of violation. Rather, the purpose is clearly disclosed to authorize new and controlling prohibitions through codes of laws which would embrace what the formulators would propose, and what the President [p497] would approve or prescribe, as wise and beneficent measures for the government of trades and industries, in order to bring about their rehabilitation, correction and improvement, according to the general declaration of policy in § 1. Codes of laws of this sort are styled ” codes of fair competition.” P. 535.
(6) A delegation of its legislative authority to trade or industrial associations, empowering them to enact laws for the rehabilitation and expansion of their trades or industries, would be utterly inconsistent with the constitutional prerogatives and duties of Congress. P. 537.
(7) Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade and industry. P. 537.
(8) The only limits set by the Act to the President’s discretion are that he shall find, first, that the association or group proposing a code imposes no inequitable restrictions on admission to membership and is truly representative; second, that the code is not designed to promote monopolies or to eliminate or oppress small enterprises and will not operate to discriminate against them, and third, that it “will tend to effectuate the policy of this title” — this last being a mere statement of opinion. These are the only findings which Congress has made essential in order to put into operation a legislative code having the aims described in the “Declaration of Policy.” P. 538.
(9) Under the Act, the President, in approving a code, may impose his own conditions, adding to or taking from what is proposed, as “in his discretion” he thinks necessary “to effectuate the policy” declared by the Act. He has no less liberty when he prescribes a code on his own motion or on complaint, and he is free to prescribe one if a code has not been approved. P. 538.
(10) The acts and reports of the administrative agencies which the President may create under the Act have no sanction beyond his will. Their recommendations and findings in no way limit the authority which § 3 undertakes to vest in him. And this authority relates to a host of different trades and industries, thus extending the President’s discretion to all the varieties of laws which he may deem to be beneficial in dealing with the vast array of commercial activities throughout the country. P. 539.
(11) Such a sweeping delegation of legislative power finds no support in decisions of this Court defining and sustaining the [p498] powers granted to the Interstate Commerce Commission, to the Radio Commission, and to the President when acting under the “flexible tariff” provisions of the Tariff Act of 1922. P. 539.
(12) Section 3 of the Recovery Act is without precedent. It supplies no standards for any trade, industry or activity. It does not undertake to prescribe rules of conduct to be applied to particular states of fact determined by appropriate administrative procedure. Instead, it authorizes the making of codes to prescribe them. For that legislative undertaking, it sets up no standards, aside from the statement of the general aims of rehabilitation, correction and expansion found in § 1. In view of the broad scope of that declaration, and of the nature of the few restrictions that are imposed, the discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually unfettered. The code-making authority thus sought to be conferred is an unconstitutional delegation of legislative power. P. 541.
6. Defendants were engaged in the business of slaughtering chickens and selling them to retailers. They bought their fowls from commission men in a market where most of the supply was shipped in from other States, transported them to their slaugterhouses, and there held them for slaughter and local sale to retail dealers and butchers, who in turn sold directly to consumers. They were indicted for disobeying the requirements of a “Code of Fair Competition for the Live Poultry Industry of the Metropolitan Area in and about the City of New York,” approved by the President under § 3 of the National Industrial Recovery Act. The alleged violations were: failure to observe in their place of business provisions fixing minimum wages and maximum hours for employees; permitting customers to select individual chickens from particular coops and half-coops; sale of an unfit chicken; sales without compliance with municipal inspection regulations and to slaughterers and dealers not licensed under such regulations; making false reports, and failure to make reports relating to range of daily prices and volume of sales.
Held:
(1) When the poultry had reached the defendants’ slaughterhouses, the interstate commerce had ended, and subsequent transactions in their business, including the matters charged in the indictment, were transactions in intrastate commerce. P. 542.
(2) Decisions which deal with a stream of interstate commerce — where goods come to rest within a State temporarily and are later to go forward in interstate commerce — and with the regulation [p499] of transactions involved in that practical continuity of movement, are inapplicable in this case. P. 543.
(3) The distinction between intrastate acts that directly affect interstate commerce, and therefore are subject to federal regulation, and those that affect it only indirectly, and therefore remain subject to the power of the States exclusively, is clear in principle, though the precise line can be drawn only as individual cases arise. Pp. 544, 546.
(4) If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the State over its domestic concerns would exist only by sufferance of the Federal Government. Indeed, on such a theory, even the development of the State’s commercial facilities would be subject to federal control. P. 546.
(5) The distinction between direct and indirect effects has long been clearly recognized in the application of the Anti-Trust Act. It is fundamental and essential to the maintenance of our constitutional system. P. 547.
(6) The Federal Government cannot regulate the wages and hours of labor of persons employed in the internal commerce of a State. No justification for such regulation is to be found in the fact that wages and hours affect costs and prices, and so indirectly affect interstate commerce, nor in the fact that failure of some States to regulate wages and hours diverts commerce from the States that do regulate them. P. 548.
(7) The provisions of the code which are alleged to have been violated in this case are not a valid exercise of federal power. P. 550.
CERTIORARI on the petition of defendants in a criminal case to review the judgment below insofar as it affirmed convictions on a number of the counts of an indictment and, on the petition of the Government, to review the same judgment insofar as it reversed convictions on other counts. The indictment charged violations of a “Live Poultry Code,” and conspiracy to commit them. [p519]
PAGE
1
Syllabus
SUPREME COURT OF THE UNITED STATES
5
1
4 U.S. 549
United States v. Lopez
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 93-1260 Argued: November 8, 1994 — Decided:
After respondent, then a 12th-grade student, carried a concealed handgun into his high school, he was charged with violating the Gun-Free School Zones Act of 1990, which forbids “any individual knowingly to possess a firearm at a place that [he] knows . . . is a school zone,”
18 U.S.C. § 922
(q)(1)(A). The District Court denied his motion to dismiss the indictment, concluding that § 922(q) is a constitutional exercise of Congress’ power to regulate activities in and affecting commerce. In reversing, the Court of Appeals held that, in light of what it characterized as insufficient congressional findings and legislative history, § 922(q) is invalid as beyond Congress’ power under the Commerce Clause.
Held: The Act exceeds Congress’ Commerce Clause authority. First, although this Court has upheld a wide variety of congressional Acts regulating intrastate economic activity that substantially affected interstate commerce, the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have such a substantial effect on interstate commerce. Section 922(q) is a criminal statute that, by its terms, has nothing to do with “commerce” or any sort of economic enterprise, however broadly those terms are defined. Nor is it an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under the Court’s cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce. Second, § 922(q) contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearms possession in question has the requisite nexus with interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce. To uphold the Government’s contention that § 922(q) is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the States. Pp. ___.
REHNQUIST, C.J., delivered the opinion of the Court, in which O’CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. KENNEDY, J., filed a concurring opinion, in which O’CONNOR, J., joined. THOMAS, J., filed a concurring opinion. STEVENS, J., and SOUTER, J., filed dissenting opinions. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.
PAGE
1
The three readings below reflect some of the basic and current characteristics of the federal administrative context.
The first, “The Organization of the Bureaucracy”, discusses the variety of types of public agencies that exist. Note that most federal (and generally state) government bureaus or agencies are created through an “organic act” that provides them distinct powers and authority, and often distinct procedural requirements for operations. In addition to organic acts, “enabling acts” can provide agencies authority or procedural requirements for specific programs assigned to that entity. So the Environmental Protection Agency(EPA) actually has powers given to it by a wide range of enabling laws, including the Clean Water Act and the Clean Air Act.
The second reading by Alina Selyukh, demonstrates that Congress and the President can alter the powers and responsibilities of agencies anytime by passing legislation amending existing legislation or rules. Although the president can influence how laws are administered, their appointees and administrative orders cannot legally ignore or act contrary to existing legislation. But if Congress and the president agree that they want to prevent (or force) agency action, they simply need to pass a bill doing so. In this case, Congress and President Trump overturned an imminent rule by the Federal Communications Commission(FCC) that would have prevented Internet Service Providers(ISPs, such as Comcast or Verizon) from selling user data.
The Trish McCubbin article discusses the concepts of preemption and waivers. If Congress is acting within its constitutional power, such as regulating commerce, then it can “preempt” the policy field and prevent states from taking any actions that interfere with federal purposes. For both pragmatic and political reasons, the federal government often chooses either to broadly allow states to also act in the policy field (“partial preemption”). Congress or federal agencies can also explicitly enable states to create policies that vary from the general federal laws or regulations. Exceptions allowed to the states are called “waivers”. Waivers are common in both regulations and in grant programs.
California had a very long-standing waiver to regulate air pollution by its own much more rigorous, standards due to the intensity of air pollution and the political power of that state. The Trump administration’s efforts to reduce regulations includes an explicit effort to undue California’s waivers under the Clean Air Act, opening the way to less stringent auto emission laws in California. This fits the Trump administration’s emphasis on economic growth over other social values, and the fact California would never vote for Trump anyway. (The latter is Henkels’s observation, but not unique to him). But the EPA cannot just lift a waiver if it had a long term existence that the affected party has planned on (the :”reliance” concept), or if the withdrawal of the waiver does not have a “reasonable” justification in light of the EPA’s responsibilities under the CAA.
(Henkels, March 24, 2020)
The Organization of the Bureaucracy
US History.org. < http://www.ushistory.org/gov/8b.asp
> (Wednesday, April 05, 20
1
7)
Even the experts can’t agree on the total number of federal government agencies, commissions, and departments.
Most estimates suggest there are probably more than 2,000 of these. They each have an area of specialization — some much broader than others — but their duties often overlap, making administration more difficult. To complicate things even more, many agencies have counterparts at the state and local level. Its size, complexity, and overlapping responsibilities leave the federal bureaucracy open to constant attempts to reorganize and streamline.
Congress has the power to create, organize, and disband all federal agencies. Most of them are under the control of the President, although few of them actually have direct contact with the White House. So, the bureaucracy has two masters — Congress and the President. The bureaucracy generally falls into four broad types: Cabinet departments, government corporations, independent agencies, and regulatory commissions
Cabinet departments
Department of State
Treasury Department
Department of Defense
Department of Justice
Department of the Interior
Department of Agriculture
Department of Commerce
Department of Labor
Department of Transportation
Department of Housing and Urban Development
Department of Health and Human Services
Department of Energy
Department of Education
Department of Veterans Affairs
Department of Homeland Security
The Cabinet Departments
The 15 Cabinet departments are each headed by a Secretary who sits on the President’s Cabinet. The exception is the Justice Department, which is headed by the Attorney General, who is also a member of the President’s Cabinet. The Secretaries are responsible for directing the department’s policy and for overseeing its operation. Cabinet secretaries are usually torn between their responsibilities as presidential advisers and heads of their departments.
As the first woman Cabinet member, Frances Perkins served for 12 years, helping draft legislation such as the Social Security Act and the first federal minimum wage laws.
Each has a special area of policy, although their responsibilities are still very broad. The organization of each is quite complex, but they have some things in common. All Secretaries have a Deputy or Undersecretary, as well as a host of Assistant Secretaries, who all direct major programs within the department.
Most departments are divided into bureaus, divisions, and sections. For example, the FBI lies within the domain of the Justice Department, and the Secret Service is currently within the Treasury Departmeny agency, but soon to be moved under the auspices of the Department of Homeland Security .
Government Corporations
Government corporations do not belong to any department — they stand on their own. Probably the best-known government corporations are the United States Postal Service and Amtrak. They are different from other agencies in that they are businesses created by Congress, and they charge fees for their services. Like any other business, government corporations have private competition — such as Federal Express and United Parcel Service — and sometimes state competition — such as the New Jersey Transit Authority.
Independent Agencies
Independent agencies closely resemble Cabinet departments, but they are smaller and less complex. Generally, they have narrower areas of responsibility than do Cabinet departments. Most of these agencies are not free from presidential control and are independent only in the sense that they are not part of a department.
Congress creates them as separate agencies for many reasons, practical as well as symbolic. For example, when the National Aeronautics and Space Administration (NASA) was established, many members of Congress assumed that it would be a part of the Department of Defense. However, it is an independent agency because the space program has many other purposes than the defense of the nation.
Regulatory Agencies
These agencies regulate important parts of the economy, making rules for large industries and businesses that affect the interests of the public. Because regulatory commissions are “watchdogs” that by their very nature need to operate independently, they are not part of a department, and the President does not directly control most of them. Each commission has from 5 to 11 members appointed by the President, but the President cannot remove them for the length of their terms in office.
Examples of these commissions are the Securities and Exchange Commission, which regulates the stock market, brokers, and investment practices. Another well-known commission is the Federal Reserve Board that governs the nation’s monetary policy. The Environmental Protection Agency serves as a guardian over the nation’s environment, making and enforcing standards for the industrial and commercial sectors.
With over 2,000 different agencies, the federal bureaucracy is almost certain to run into problems with organization, overlapping responsibilities, and efficiency. Almost every recent President has come into office determined to refashion and trim the bureaucracy. However, none has been able to make more than minor adjustments. Well-established agencies have lives of their own, and are difficult to change. Besides, the country has large, complex, needs requiring special attention. A large bureaucracy is a part of the government’s attempt to meet those needs.
————————————————–
Examples of Congress using the “Congressional Regulatory Review act to undo some key rules adopted by federal agencies in last months of Obama administration. This power had only been used once before in history. MH
Alina Selyukh. “Congress Overturns Internet Privacy Regulation” npr.org (February 24, 2017)
Congress on Tuesday rolled back Internet privacy regulations established under the Obama administration.
The House of Representatives has gone along with the Senate and voted 215-205 to overturn a yet-to-take-effect regulation that would have required Internet service providers — like Comcast, Verizon and Charter — to get consumers’ permission before selling their data.
President Trump is expected to sign the rollback,
according to a White House statement
.
The measure is a victory for the ISPs, which have argued that the regulation would put them at a disadvantage compared with so-called edge providers, like Google and Facebook. Those companies are regulated by the Federal Trade Commission and face less stringent requirements. Congress’ approval is a loss for privacy advocates, who fought for the regulation, passed in October of last year by the then-Democratic majority on the Federal Communications Commission.
ISPs collect huge amounts of data on the websites people visit, including medical, financial and other personal information. The FCC regulation would have required ISPs to ask permission before selling that information to advertisers and others, a so-called opt-in provision.
During Tuesday’s House debate, Rep. Anna Eshoo, D-Calif., said the Republican-drafted measure would blow “a gaping hole in federal privacy protections.” She said if consumers don’t like Google’s privacy protections, they can switch to another search engine, like Bing. But many consumers have little choice when it comes to their Internet provider, she said, especially in rural areas.
Republicans argued that the FCC overstepped its bounds and that it was up to the Federal Trade Commission to regulate privacy. Rep. Marsha Blackburn, R-Tenn., said allowing the FCC and FTC to regulate different swaths of consumers’ Internet use would “create confusion within the Internet ecosystem and end up harming consumers.”
The chairman of the FCC, Ajit Pai, echoed this argument in a statement praising lawmakers. He said the regulations picked “winners and losers,” benefiting certain companies over others.
The NCTA, the Internet & Television Association, said the vote “marks an important step toward restoring consumer privacy protections that apply consistently to all Internet companies.”
The Center for Democracy and Technology, however, argued that Congress “voted today to erase basic privacy protections for Americans in favor of the internet service providers’ (ISPs) bottom line,” calling the regulations “common-sense privacy and security protections for some of their most sensitive personal information.”
By overturning the FCC rule under the Congressional Review Act, lawmakers effectively precluded the FCC from restoring these rules in the future.
_________________________________
McCubbin, Trish. American Bar Association, (March 02, 2020)
https://www.americanbar.org/groups/environment_energy_resources/publications/trends/2019-2020/march-april-2020/trump-administration-withdrawl/
“The Trump administration’s withdrawal of California’s Clean Air Act preemption waiver in the SAFE Rule”
2019, the U.S. Environmental Protection Agency (EPA) and the National Highway Traffic Safety Administration (NHTSA) promulgated a joint rule known as Part One of the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule. As explained in a recent Trends article, Part One of the SAFE Rule involves two interwoven actions by EPA and NHTSA to deny California and other states the ability to adopt greenhouse gas (GHG) tailpipe standards and electric vehicle programs that are more stringent than federal standards on emissions or fuel economy. The agencies then stated that they would issue new (and presumably more relaxed) fuel economy and emission standards in what we assume will be called the Part Two Rule.
This article focuses on EPA’s decision under the Clean Air Act (CAA) to withdraw an important preemption waiver granted to California in 2013. The article will explain the preemption structure of the CAA, the waiver provision that allows California to continue with its own program, the legal issues surrounding this unprecedented effort by EPA to withdraw a previously granted waiver, and the ongoing litigation. Because EPA’s action is so intertwined with NHTSA’s, this article also discusses NHTSA’s groundbreaking determination that California’s standards are preempted by federal fuel economy standards under the Energy Policy and Conservation Act (EPCA).
Preemption under the CAA and the 2013 preemption waiver for California
Under section 202 of the CAA, EPA sets emission standards for new motor vehicles, and section 209 preempts any state from adopting its own such standards, with one important exception: California can request permission to adopt and enforce its own vehicle emission standards—technically called a “waiver of preemption” under section 209(b)—if the state finds that its standards “will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards.” California was given this special authority because, in the 1960s, the state was already regulating tailpipe emissions to address its significant air pollution problems.
EPA must grant California’s waiver request unless the agency finds (1) the state’s determination of equivalency is “arbitrary and capricious,” (2) the state does not need its standards “to meet compelling and extraordinary conditions,” or (3) the state standards “are not consistent” with the vehicle emission standards adopted by EPA under section 202. Once EPA grants a waiver, other states can adopt and enforce the California emission standards.
In more than 50 years, EPA has never withdrawn a waiver, and it has only fully denied one of California’s waiver requests—in 2008, when California first requested permission for its GHG tailpipe standards. That denial was quickly reversed by the Obama administration in 2009.
In 2013, EPA again granted California a waiver, this time for its “Advanced Clean Cars” program, which included GHG emission standards for Model Years 2015–2025, the Zero Emission Vehicle (ZEV) mandate (designed to increase the use of electric vehicles), and emission standards on soot- and smog-producing pollutants. Now, in the SAFE Rule, EPA has withdrawn the 2013 waiver as to California’s GHG standards for Model Years 2021–2025 and the ZEV mandate.
Legal issues
EPA’s action raises many complicated legal issues, and this article will summarize just a few primary topics. First, it is unclear whether EPA has any authority to withdraw a previously granted preemption waiver. The CAA does not expressly authorize a withdrawal, but EPA rightly notes that agencies generally have inherent authority to reconsider their actions. Case law provides, however, that doing so is inappropriate if the reversal would harm the reliance interests of affected parties. California and the other states using California’s emission standards argue they have relied on the 2013 waiver in their statewide plans to reduce pollution levels to meet federal air quality requirements. EPA, however, argues the states could not reasonably assume the California standards would always be available because the agency repeatedly emphasized that it would be revisiting the standards for Model Years 2022–2025.
Assuming the states’ reliance interests do not prevent EPA from withdrawing the 2013 waiver, the next question is whether EPA’s justifications for doing so are reasonable. EPA’s first justification is not tied to any language in the CAA and instead depends entirely on NHTSA and the EPCA. The EPCA preempts all state requirements “related to fuel economy standards,” and it offers no carve-out for California. NHTSA is now taking the position that California’s GHG emission standards “relate to” fuel economy and, therefore, are preempted by the EPCA. In turn, EPA claims that because NHTSA’s position renders California’s standards “void ab initio,” EPA’s 2013 grant is “invalid” and must be withdrawn.
EPA is on shaky ground here. The agency acknowledges that it previously refused to consider consistency with EPCA when considering waiver requests because that is not one of the listed criteria under CAA section 209(b). Now, however, it claims justification for doing so because this is a “unique situation” in which EPA is coordinating its actions with NHTSA. Even if this situation were unique—which seems doubtful since EPA and NHTSA have been coordinating for many years—EPA will have a difficult time convincing a court that the agency can withdraw a waiver based on a factor the agency could not consider under its own statutory mandate.
EPA’s second justification is tied directly to the criterion in section 209(b) that allows the agency to deny a waiver if it finds that California “does not need [its] standards to meet compelling and extraordinary conditions.” Although historically EPA has considered whether the state needs a vehicle emissions program at all, now EPA is assessing whether California needs a specific element of that program—here the GHG tailpipe standards and the ZEV mandate. EPA maintains California does not “need” its own GHG standards and ZEV mandate because climate change is a global phenomenon, not one with a “particularized nexus to California’s specific characteristics.” The agency acknowledges that “this interpretation . . . departs in major respects” from EPA’s position in the 2009 and 2013 waivers. Moreover, EPA recently sent California a letter chastising it for failing to adequately address air pollution in that state, noting that California has
the worst air pollution in the nation
.
EPA and NHTSA are now taking legal positions that contradict their earlier interpretations of the governing statutes. Agencies, of course, have discretion to alter their policies, but they must do so in a thoughtful manner with a record that acknowledges and deals with previously established facts and legal interpretations. FCC v. Fox Television Stations, 556 U.S. 502 (2009). Whether EPA and NHTSA have pulled that off here remains to be seen in the ongoing litigation.
Litigation
The litigation is currently bifurcated. California and 23 other states
sued
over EPA’s waiver withdrawal in the U.S. Court of Appeals for the District of Columbia Circuit because, under CAA section 307(b)(1), actions that EPA declares (as here) to be “of nationwide scope or effect” must be litigated in that court. The challengers include not only California and the other states, but also municipalities and environmental groups, with electric car manufacturers intervening in support. Major automakers and other states intervened on behalf of the federal defendant agencies.
Union of Concerned Scientists v. National Highway Traffic Safety Administration
, No. 19-1230 (D.C. Cir.).
Many of the same challengers filed suit against NHTSA’s preemption determination in the federal district court in the District of Columbia, relying on the federal question jurisdiction of the district courts per 28 U.S.C. § 1331.
California v. Chao
, No. 19-cv-2826 (D.D.C.). NHTSA filed a motion to dismiss the district court litigation, or to transfer the cases to the D.C. Circuit, arguing that the issue of EPCA preemption is so intertwined with EPA’s CAA waiver withdrawal that they have to be heard together. The district court has not yet ruled on the motion to dismiss or transfer.
In the meantime, the petitioners in the D.C. Circuit asked for their cases to be placed in abeyance pending resolution of the federal district court case on the NHTSA determination, as well as resolution of their administrative reconsideration petitions. By contrast, the federal defendants asked the D.C. Circuit for expedited briefing and argument, noting that protracted litigation would create significant uncertainty and costs for both car manufacturers and consumers. At least two automakers have joined that motion for expedited consideration. (Right at press-time, the D.C. Circuit denied the requests for abeyance and expedited action, and it directed the parties to submit briefing proposals by early March.)
In the coming months, we will be watching for the courts to issue rulings on the jurisdictional questions and on the merits of this controversial Part One Rule. We will also be watching for EPA and NHTSA to issue the Part Two Rule with relaxed federal tailpipe standards and fuel economy standards. Stay tuned.
1
Nothing has been as politically contentious as the Affordable Care Act of
2
0
1
0, aka “Obamacare”. Opposition to the law has taken many forms but, as in other political disputes, the courts are a critical arena for these battles.
The first reading here is an example of a “syllabus” of a case, the summary of the case by the Court Reporter, a private entity who keeps the official record of the Supreme Court decisions.
Below the syllabus of the Sebelius(2012) case there is a brief article discussing the case of King v. Burwell. The final decision in this case upheld a key provision of the ACA. The Supreme Court held that citizens in state that had not created their own exchanges were still eligible for federal subsidies. This means that the key element of the ACA that enabled people to get more affordable access to health insurance by using the subsidies to buy insurance on state health insurance exchanges.
Writing for the majority in King, Chief Justice Roberts argued that because the phrase “an Exchange established by the State” is ambiguous as it relates to tax credits, the Court must look to the broader text and structure of the Act to determine the meaning of that phrase. So the Supreme Court will look at the broader content of the law rather than ruling on legislation based on a single piece taken out of context. (The above is borrowed from the Constitutional Accountability Center.)
Finally, there is a third reading regarding the case Burwell v Hobby Lobby Stores, Inc (201
4
), which looks at the decision by the Supreme Court to allow that corporation to not follow the ACA requirement that health packages include contraceptive coverage due to the owners’ religious beliefs.
Syllabus
NATIONAL FEDERATION OF INDEPENDENT BUSINESS et al. v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, et al.
certiorari to the united states court of appeals for the eleventh circuit
No. 11–
3
93. Argued March 2
6
, 2
7
, 2
8
, 2012—Decided June 28, 20121
In 2010, Congress enacted the Patient Protection and Affordable Care Act in order to increase the number of Americans covered by health insurance and decrease the cost of health care. One key provision is the individual mandate, which requires most Americans to maintain “minimum essential” health insurance coverage.
26 U. S. C. §
5
000A
. For individuals who are not exempt, and who do not receive health insurance through an employer or government program, the means of satisfying the requirement is to purchase insurance from a private company. Beginning in 2014, those who do not comply with the mandate must make a “[s]hared responsibility payment” to the Federal Government. §5000A(b)(1). The Act provides that this “penalty” will be paid to the Internal Revenue Service with an individual’s taxes, and “shall be assessed and collected in the same manner” as tax penalties. §§5000A(c), (g)(1).
Another key provision of the Act is the Medicaid expansion. The current Medicaid program offers federal funding to States to assist pregnant women, children, needy families, the blind, the elderly, and the disabled in obtaining medical care.
42 U. S. C. §1396d(a)
. The Affordable Care Act expands the scope of the Medicaid program and increases the number of individuals the States must cover. For example, the Act requires state programs to provide Medicaid coverage by 2014 to adults with incomes up to 133 percent of the federal poverty level, whereas many States now cover adults with children only if their income is considerably lower, and do not cover childless adults at all. §1396a(a)(10)(A)(i)(VIII). The Act increases federal funding to cover the States’ costs in expanding Medicaid coverage. §1396d(y)(1). But if a State does not comply with the Act’s new coverage requirements, it may lose not only the federal funding for those requirements, but all of its federal Medicaid funds. §1396c.
Twenty-six States, several individuals, and the National Federation of Independent Business brought suit in Federal District Court, challenging the constitutionality of the individual mandate and the Medicaid expansion. The Court of Appeals for the Eleventh Circuit upheld the Medicaid expansion as a valid exercise of Congress’s spending power, but concluded that Congress lacked authority to enact the individual mandate. Finding the mandate severable from the Act’s other provisions, the Eleventh Circuit left the rest of the Act intact.
Held: The judgment is affirmed in part and reversed in part.
648 F. 3d 1235, affirmed in part and reversed in part.
1. Chief Justice Roberts delivered the opinion of the Court with respect to Part II, concluding that the Anti-Injunction Act does not bar this suit.
The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,”
26 U. S. C. §7421(a)
, so that those subject to a tax must first pay it and then sue for a refund. The present challenge seeks to restrain the collection of the shared responsibility payment from those who do not comply with the individual mandate. But Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a “penalty,” not a “tax.” That label cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction Act. The Anti-Injunction Act therefore does not bar this suit. Pp. 11–15.
2. Chief Justice Roberts concluded in Part III–A that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause. Pp. 16–30.
(a) The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3 (emphasis added). The power to regulate commerce presupposes the existence of commercial activity to be regulated. This Court’s precedent reflects this understanding: As expansive as this Court’s cases construing the scope of the commerce power have been, they uniformly describe the power as reaching “activity.” E.g., United States v. Lopez,
514 U. S. 549
. The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.
Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.” Pp. 16–27.
(b) Nor can the individual mandate be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Act’s other reforms. Each of this Court’s prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. E.g., United States v. Comstock, 560 U. S. ___. The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scope those who would otherwise be outside of it. Even if the individual mandate is “necessary” to the Affordable Care Act’s other reforms, such an expansion of federal power is not a “proper” means for making those reforms effective. Pp. 27–30.
3. Chief Justice Roberts concluded in Part III–B that the individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable.
The most straightforward reading of the individual mandate is that it commands individuals to purchase insurance. But, for the reasons explained, the Commerce Clause does not give Congress that power. It is therefore necessary to turn to the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to “lay and collect Taxes.” Art. I, §8, cl. 1. In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California,
155 U. S. 648
, the question is whether it is “fairly possible” to interpret the mandate as imposing such a tax, Crowell v. Benson,
285 U. S. 22
. Pp. 31–32.
4. Chief Justice Roberts delivered the opinion of the Court with respect to Part III–C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause. Pp. 33–44.
(a) The Affordable Care Act describes the “[s]hared responsibility payment” as a “penalty,” not a “tax.” That label is fatal to the application of the Anti-Injunction Act. It does not, however, control whether an exaction is within Congress’s power to tax. In answering that constitutional question, this Court follows a functional approach, “[d]isregarding the designation of the exaction, and viewing its substance and application.” United States v. Constantine,
296 U. S. 287
. Pp. 33–35.
(b) Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. Cf. Bailey v. Drexel Furniture Co.,
259 U. S. 20
–37. None of this is to say that payment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is unlawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language—stating that individuals “shall” obtain insurance or pay a “penalty”—does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insurance. See New York v. United States,
505 U. S. 144
–174. Pp. 35–40.
(c) Even if the mandate may reasonably be characterized as a tax, it must still comply with the Direct Tax Clause, which provides: “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” Art. I, §9, cl. 4. A tax on going without health insurance is not like a capitation or other direct tax under this Court’s precedents. It therefore need not be apportioned so that each State pays in proportion to its population. Pp. 40–41.
5. Chief Justice Roberts, joined by Justice Breyer and Justice Kagan, concluded in Part IV that the Medicaid expansion violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion. Pp. 45–58.
(a) The Spending Clause grants Congress the power “to pay the Debts and provide for the . . . general Welfare of the United States.” Art. I, §8, cl. 1. Congress may use this power to establish cooperative state-federal Spending Clause programs. The legitimacy of Spending Clause legislation, however, depends on whether a State voluntarily and knowingly accepts the terms of such programs. Pennhurst State School and Hospital v. Halderman,
451 U. S. 1
. “[T]he Constitution simply does not give Congress the authority to require the States to regulate.” New York v. United States, 505 U. S. 144. When Congress threatens to terminate other grants as a means of pressuring the States to accept a Spending Clause program, the legislation runs counter to this Nation’s system of federalism. Cf. South Dakota v. Dole,
483 U. S. 203
. Pp. 45–51.
(b) Section 1396c gives the Secretary of Health and Human Services the authority to penalize States that choose not to participate in the Medicaid expansion by taking away their existing Medicaid funding.
42 U. S. C. §1396c
. The threatened loss of over 10 percent of a State’s overall budget is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion. The Government claims that the expansion is properly viewed as only a modification of the existing program, and that this modification is permissible because Congress reserved the “right to alter, amend, or repeal any provision” of Medicaid. §1304. But the expansion accomplishes a shift in kind, not merely degree. The original program was designed to cover medical services for particular categories of vulnerable individuals. Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level. A State could hardly anticipate that Congress’s reservation of the right to “alter” or “amend” the Medicaid program included the power to transform it so dramatically. The Medicaid expansion thus violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion. Pp. 51–55.
(c) The constitutional violation is fully remedied by precluding the Secretary from applying §1396c to withdraw existing Medicaid funds for failure to comply with the requirements set out in the expansion. See §1303. The other provisions of the Affordable Care Act are not affected. Congress would have wanted the rest of the Act to stand, had it known that States would have a genuine choice whether to participate in the Medicaid expansion. Pp. 55–58.
6. Justice Ginsburg, joined by Justice Sotomayor, is of the view that the Spending Clause does not preclude the Secretary from withholding Medicaid funds based on a State’s refusal to comply with the expanded Medicaid program. But given the majority view, she agrees with The Chief Justice’s conclusion in Part IV–B that the Medicaid Act’s severability clause,
42 U. S. C. §1303
, determines the appropriate remedy. Because The Chief Justice finds the withholding—not the granting—of federal funds incompatible with the Spending Clause, Congress’ extension of Medicaid remains available to any State that affirms its willingness to participate. Even absent §1303’s command, the Court would have no warrant to invalidate the funding offered by the Medicaid expansion, and surely no basis to tear down the ACA in its entirety. When a court confronts an unconstitutional statute, its endeavor must be to conserve, not destroy, the legislation. See, e.g., Ayotte v. Planned Parenthood of Northern New Eng.,
546 U. S. 320
–330. Pp. 60–61.
Roberts, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–C, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined; an opinion with respect to Part IV, in which Breyer and Kagan, JJ., joined; and an opinion with respect to Parts III–A, III–B, and III–D. Ginsburg, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Sotomayor, J., joined, and in which Breyer and Kagan, JJ., joined as to Parts I, II, III, and IV. Scalia, Kennedy, Thomas, and Alito, JJ., filed a dissenting opinion. Thomas, J., filed a dissenting opinion.
Walsh, Mark. “Although the ACA is 1,000 pages long, its future may depend on a single phrase. “ ABA Journal, (March 2015)
Supreme Court Report
The Affordable Care Act is some 1,000 pages long, and it survived largely intact in a 193-page 2012 U.S. Supreme Court decision that upheld President Barack Obama’s signature health reform law as an exercise of Congress’ taxing powers. Now, a mere eight words in the statute — and one Internal Revenue Service regulation — may threaten the future of the act.
The justices will hear arguments March 4 in King v. Burwell, a challenge to the IRS rules that extend subsidies to taxpayers in the 34 states that have refused to establish their own health insurance exchanges under the ACA and instead are relying on the federal marketplace. Because the complex law depends on three principles — tax help for participants, shared responsibility (meaning the individual coverage mandate) and reforms of the insurance market — to extend health coverage to more Americans, a decision that significantly hobbled one leg of that stool would undermine the entire law, observers believe.
The case “is the most existential threat to the viability of the Affordable Care Act in about three dozen states,” says Ron Pollack, the executive director of Families USA, a Washington, D.C., group that lobbies on behalf of health care consumers and is a strong supporter of the ACA. “The stakes are very high.”
Michael A. Carvin, the Jones Day lawyer who will argue on behalf of four Virginia residents behind the latest ACA challenge, says the case is “all about the rule of law.” “Do you alter the law that was enacted to achieve a policy endorsed by the executive or judicial branches?” he asks. “No, you have to interpret the law as it is written, because we are a nation of laws — not men.”
The ACA authorizes federal tax-credit subsidies for health insurance that is purchased through — as the eight key words seized on by the challengers put it — an “exchange established by the state under Section 1311.” That section provides carrots and sticks for the states to establish their own health care exchanges, or marketplaces. Another ACA provision, Section 1321, was a backup allowing the U.S. Department of Health and Human Services to establish a federal exchange for those states that failed to establish their own. That exchange was offered on the HealthCare.gov site.
PARTISAN DIVIDE
Few people contemplated that antipathy toward the ACA would drive so many states to refuse to establish exchanges. “Congress did not expect the states to turn down federal funds and fail to create and run their own exchanges,” one federal judge put it when the case was first decided Feb. 18, 2014. Amid that political landscape, the IRS in 2012 promulgated rules extending tax subsidies to income-qualified participants in states served by the federal exchange.
Some members of Congress questioned the interpretation, and two scholars, Jonathan H. Adler of Case Western Reserve University School of Law and Michael F. Cannon of the Cato Institute, published an influential law review article in 2013 that called the IRS rule illegal.
“The IRS … cited not legislative history or statutory authority for what it did,” says Cannon, director of health policy studies at the libertarian D.C. think tank. “They knew the relevant language of the statute did not permit them to do what they wanted to do, but they did it anyway. They just rewrote the statute.”
Several lawsuits were organized by groups opposed to the ACA. In King, four residents of Virginia — which does not have its own exchange — say they would be subject to the ACA’s individual mandate to purchase insurance solely because of the IRS rule. Eligibility for a subsidy triggers the individual mandate for a range of low- and middle-income taxpayers who might otherwise be exempt because of their modest household incomes — and thus not subject to a tax penalty for not purchasing insurance.
Both a federal district court and the 4th U.S. Circuit Court of Appeals at Richmond, Virginia, upheld the IRS rule and the Obama administration’s interpretation of the law. A panel of the appeals court ruled 3-0 on July 21 that the statute was “ambiguous and subject to multiple interpretations,” and thus the agency’s interpretation deserved deference.
Just hours earlier that day, a panel of the U.S. Court of Appeals for the District of Columbia Circuit had ruled 2-1 that the ACA “plainly makes subsidies available only on exchanges established by states.”
A federal district court in Oklahoma, ruling in September in favor of that state’s challenge to the IRS rule, criticized the Obama administration’s defense of it as “lead[ing] us down a path toward Alice’s Wonderland, where up is down and down is up, and words mean anything.”
The high court stepped into Alice’s rabbit hole and granted review of the Virginia case in November, casting off the Obama administration’s plea that it should wait because the D.C. Circuit had granted en banc review of the case known as Halbig v. Burwell.
There was immediate speculation that the four conservative justices — Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. — who were in dissent in 2012 in National Federation of Independent Business v. Sebelius on the constitutionality of the individual mandate, were seeing the Virginia case as a fresh opportunity to gut the ACA. That is, if they could persuade Chief Justice John G. Roberts Jr., who wrote the majority opinion in NFIB, to come back to the conservative fold.
CONTEXT IS KEY
The challengers’ reading of the ACA rests on an out-of-context “misreading of a single phrase” and “would thwart the act’s core reforms in the 34 states that exercised their statutory prerogative to allow HHS to establish exchanges for them,” U.S. Solicitor General Donald B. Verrilli Jr. said in a brief. “Those states would face the very death spirals the act was structured to avoid, and insurance coverage for millions of their residents would be extinguished.”
Verrilli maintained the law was designed on the idea that tax subsidies are available to participants in every state. “The act was debated, evaluated and passed under the universal understanding that tax credits would be available in every state — including states with federally facilitated exchanges,” he wrote.
Jane Perkins, the legal director of the National Health Law Program, a Washington, D.C., group that backs the ACA, says the justices shouldn’t focus on the key eight words of the statute cited by the challengers.
“As a lawyer who has often applied principles of statutory construction, I don’t think you can isolate these words the way the plaintiffs have,” she says.
Supporters of the law warn that a decision against the IRS rule would have serious repercussions for the viability of the law. The D.C.-based Urban Institute predicted in a January report that the elimination of premium tax credits in the states without their own exchanges would increase the number of uninsured Americans by 8.2 million and deplete insurance markets not tied to group plans.
Perkins says that among the practical problems would be that federal funding for creating such exchanges has been used up, and that some states have passed laws prohibiting the establishment of their own exchanges. “They can’t turn around a barge on a dime,” she says.
The Cato Institute’s Cannon argues that the King case does not challenge the ACA itself — only what he and others view as an unlawful use of regulatory power to expand the law. And any removal of individuals from health insurance rolls would not be the fault of the lawsuit. “It is not the job of the Supreme Court to look beyond the statute to its effects,” he says. “That is the job of Congress.”
But Pollack of Families USA, a former dean of Antioch School of Law (now the David A. Clarke School of Law at the University of the District of Columbia), notes that House Republicans have repeatedly tried to overturn the ACA, and that Republicans took over the Senate this year.
“If the King case comes down adversely [to the ACA and its supporters],” he says, “opponents in Congress will have significant leverage” over the law.
This article originally appeared in the March 2015 issue of the ABA Journal with this headline: “8 Words May Make a Law: Although the ACA is 1,000 pages long, its future may depend on a single phrase.”
~~~~~~~~
By Mark Walsh
Gostin, Lawrence. Viewpoint | August 27, 2014
“The ACA’s Contraceptive MandateReligious Freedom, Women’s Health, and Corporate Personhood.” Journal of the American Medical Association (JAMA)
2014;312(8):785-786.
The Supreme Court on June 30, 2014, decided Burwell v Hobby Lobby Stores, Inc—a deeply divisive case. Holding that the federal government cannot lawfully mandate “closely held” for-profit corporations to provide contraceptive coverage, the Court split 5-4 along ideological lines.1 The Court thus entered a political quagmire at the intersection of religious freedom, women’s health, and corporate personhood.
The Affordable Care Act of 2010 (ACA) requires specified employer group health plans to cover preventive care and screenings for women without cost-sharing. Department of Health and Human Services (HHS) rules mandate coverage of 20 Food and Drug Administration–approved contraceptive methods. However, HHS exempts religious employers (eg, churches) but not for-profit organizations. HHS offers religious nonprofits an “accommodation,” whereby insurance companies exclude contraception coverage from the employer’s plan, but the insurance companies must provide separate coverage without cost-sharing to the employer, its health plan, or women.
In the Hobby Lobby case, 3 closely held for-profit corporations holding Christian beliefs that life begins at conception challenged the mandate of 4 contraception methods they believe prevent a fertilized egg from attaching to the uterus, tantamount to an abortion. These 4 methods include 2 forms of emergency contraceptive pill, which can be taken within 3 to 5 days after sex, and intrauterine devices (IUDs), which are inserted into the uterus to prevent pregnancy. The latter are long-acting, reversible, and highly effective forms of contraceptive but can also be used for emergency contraception.
The Religious Freedom Restoration Act of 1993 (RFRA) prohibits government from “substantially” burdening a person’s “exercise of religion” without a “compelling interest” and requires the “least restrictive” means to achieve that interest. Holding that HHS violated RFRA, the Court first found that RFRA applies to closely held for-profit corporations. The Court reasoned that corporations are “persons” capable of “exercising religious freedom.” Justice Alito, writing for the Court, said RFRA protects individuals—the company’s shareholders, officers, and employees.
Having found that RFRA applies to corporations, the Court said the contraception mandate “substantially” burdens their religious freedoms. The mandate, according to Justice Alito, coerces companies to fund services to which they are morally opposed. The Court assumed the government had a “compelling interest” in ensuring reproductive services but said HHS could achieve its purpose less restrictively. The federal government, for example, could directly fund the 4 contraceptive methods or use the same “accommodation” HHS offered to nonprofit religious organizations, namely requiring insurers to cover those services.
WOMEN’S HEALTH, WELL-BEING, AND EQUAL RIGHTS
The Court’s 49-page opinion is solicitous of corporate rights and religious freedoms while mentioning women only 13 times. In stark contrast, Justice Ruth Ginsburg’s dissent symbolically quotes Sandra Day O’Connor, the Court’s first female justice: “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”
2 Justice Ginsburg’s passionate dissent reveals the virtually unbridgeable fissure among the Justices, reflected in US politics and culture.
Reproductive services are vital to women’s health and lives,3 expanding their social and economic opportunities. Reproductive services reduce unintended pregnancies and facilitate treatment, with 99% of all sexually active women using birth control at some point.4 Poor women, moreover, are unlikely to afford reproductive services, especially long-acting contraception with high initial costs. Justice Ginsburg wrote, “the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage,” and “almost one-third of women would change their contraceptive method if costs were not a factor.” Reproductive freedoms, of course, are also vital to families and society given the high social costs of unplanned pregnancies.
A CLASH BETWEEN RELIGIOUS FREEDOM AND WOMEN’S RIGHTS
The Court assumed the contraception mandate created a “substantial burden,” deferring to the companies’ subjective beliefs, which are unfounded in fact. The 4 contraceptive methods to which they objected avert pregnancy by delaying or preventing ovulation. Scientific evidence does not support the claim that emergency contraception works by preventing implantation.
5 The corporate owners remained free to practice their religion and speak out against contraception. They would play no part in the decision to use contraception, which is solely a matter for the woman and her physician. The companies, moreover, could have avoided any moral dilemma by paying a tax instead of providing insurance, with employees then eligible to secure full coverage on the insurance exchange.
The exercise of religious liberty imposes a burden on the rights and health of female employees, who may not share their employer’s beliefs. If family planning services became unaffordable, the reproductive autonomy and well-being of women would be placed at risk. At the same time, the company effectively would be treating female employees unequally, as there would be no comparable coverage exclusions for men.
CORPORATE PERSONHOOD
Hobby Lobby equates corporations with “persons” capable of practicing religion, but corporate personhood is a legal fiction. A corporation is simply a business entity created by law, which affords owners and shareholders advantages, such as limited liability. The corporation’s prime purpose is to make a profit, not to exercise human freedoms. In exchange for the advantages received, there is good reason to require corporations to abide by laws of general applicability, such as administering government benefit schemes and not discriminating.
The Court’s ruling is limited to “closely held” corporations, but it never defines that term. Justice Alito equates “closely held” with family-owned businesses. Yet 90% of corporations are closely held, some of which are large: for example, Hobby Lobby has 13 000 employees.
6 Justice Alito asserts that publicly traded companies would not make RFRA claims but, if they did, the Court’s reasoning appears to apply to them. In fact, the Court has conferred rights on multinational corporations in multiple realms—defending commercial speech and campaign financing. The trend toward corporate personhood has constrained public health regulation, ranging from advertising prescription medicines to marketing junk food, tobacco, and alcohol.7 The Court has stressed corporate rights, often to the detriment of individuals.
Religious beliefs, moreover, extend beyond abortion—for example, opposing vaccinations, blood transfusions, or psychotropic drugs or objecting to providing health care coverage to same-sex spouses. Justice Alito asserted that Hobby Lobby does not apply to these medical services and would not undermine civil rights laws but never explained why. The Court’s reasoning could extend to multiple realms of medical practice, leading Justice Ginsburg to call Hobby Lobby “a decision of startling breadth.”
OPENING THE FLOODGATES OF ACA LITIGATION
If a Supreme Court decision is supposed to give a measure of legal certainty, Hobby Lobby does anything but that. Currently some 50 cases are pending in the courts, and the Court’s decision leaves considerable ambiguity: do large corporations have religious freedoms, is HHS’ accommodation acceptable, and does the decision apply to medical services beyond contraception?
In Hobby Lobby, the court endorsed an “accommodation,” or legal exception to the rule, requiring an employer merely to sign an insurance form stating it is a nonprofit religious organization that objects to contraception. The day after the case came down, the Court issued a temporary emergency injunction against enforcement of this accommodation—provoking a stinging rebuke from all 3 female justices.
8 “Those who are bound by our decisions usually believe they can take us at our word,” Justice Sotomayor wrote. “Not so today.” Wheaton, a Christian college, argued, “signing the form would impermissibly facilitate abortions and is therefore forbidden.” (The Court issued a similar order in favor of Little Sisters of the Poor, an order of Roman Catholic nuns, in January.) “The Court,” said Sotomayor, ignores a simple truth: “The government must be allowed to handle the basic tasks of public administration in a manner that comports with common sense.”
Hobby Lobby does not undermine the core components of the ACA such as affordable access to services. The decision, however, does potentially affect women’s reproductive health and could signal a “chipping away” at the margins of this historic health care entitlement. Beyond the ACA, the case solidifies a growing trend in Supreme Court jurisprudence defending corporate personhood, which is becoming a major impediment to public health regulation.
1
Justa taste of the 2019-2020 term in the US Supreme Court(SCOTUS). Not all directly relate to administrative law, how SCOTUS views presidential administrative powers (such as with the “Dreamers”), whether gender diversity is protected under the Civil Rights Act, and how hard a line states may on the separation of church and state will indicate potentially important issues affecting administrative policies.
As the article notes, there is the broader question of whether the court’s steady drift to the right will take a more dramatic turn as Justice Cavanaugh joins Justices Alito, Thomas, and Gorsuch on the conservative side. One key question is whether Chief Justice Roberts will choose to be the moderate balancing point, or if he will follow the conservative line that George W. Bush hoped for when he was appointed. Henkels (March 24, 2020)
Liptak, Adam. “As the Supreme Court Gets Back to Work, Five Big Cases to Watch”. New York Times (October 6, 2019, updated November 11, 2019)
WASHINGTON — The Supreme Court returns to the bench on Monday to start a term that will be studded with major cases on gay and transgender rights, immigration, abortion, guns and religion. The rulings will arrive by June, in the midst of an already divisive presidential campaign.
That will thrust a court that has tried to keep a low profile back into the center of public attention. “It’s a very exciting term,”
Lisa S. Blatt,
a lawyer with Williams & Connolly, said. “Although the court will carry on with a sense of normalcy, it will be hard for them to ignore the polarization in the country on the issues of abortion, L.G.B.T. rights, guns and ‘Dreamers.’”
The spotlight will shine on three justices in particular.
Chief Justice John G. Roberts Jr., who by many measures sits at the
court’s ideological center
, has been increasingly
outspoken in defending
the court against charges that it is at bottom a political institution. The court’s rulings in the high-profile cases this term may test that assertion.
Justice Ruth Bader Ginsburg, the 86-year-old leader of the court’s liberal wing, announced this summer that she had been treated for
a fourth bout with cancer
before starting
a demanding speaking tour.
Nervous liberals hope that she will remain on the court long enough to allow a Democratic president to name her successor.
Justice Brett M. Kavanaugh, who joined the court last October after exceptionally stormy confirmation hearings, compiled a fairly moderate record last term, voting with President Trump’s other appointee, Justice Neil M. Gorsuch, in divided cases just 53 percent of the time. But
studies have shown
that there are “freshman effects” on the Supreme Court that do not always predict long-term trends.
The effect of the
retirement last year of Justice Anthony M. Kennedy
, the court’s longtime swing vote, has not yet been fully felt, as last term’s cases were mostly minor. That will now change, said
Sarah Harrington
, a lawyer with Goldstein & Russell. “After a relatively quiet term last year, this term is shaping up to include some politically sensitive issues,” she said.
Here are five cases to watch.
Does a Landmark Civil Rights Law Protect Gay and Transgender People?
On Tuesday, the court will hear two hours of argument on
the momentous question
of whether
a landmark federal civil rights law protects
gay men, lesbians and transgender people from employment discrimination.
In most of the country, job discrimination based on sexual orientation and gender identity is lawful. The justices will decide whether the federal law, Title VII of the Civil Rights Act of 1964, offers nationwide protection.
If the answer is yes, the consequences would be enormous, said
Paul M. Smith
, who argued
a landmark 2003 gay rights case
and now teaches at Georgetown.
“It would be huge in the L.G.B.T. community to have protection in the private sector from employment discrimination, which is pretty much a rampant problem to this day,” he said.
The cases before the court — Bostock v. Clayton County, No. 17-1618; Altitude Express v. Zarda, No. 17-1623; and R.G. & J.R. Funeral Homes v. Equal Employment Opportunity Commission, No. 18-107 — were brought by two gay men and a transgender woman who said they were fired for unlawful reasons.
The question for the justices is whether the language of the 1964 law, which bars sex discrimination, also applies to sexual orientation and gender identity. The employers and the Trump administration argue that the lawmakers who voted for the law did not intend such broad coverage. The workers say that it is impossible to discriminate against gay and transgender people without taking into account their sex.
The justices’ approaches to the cases may scramble some of their usual commitments, since conservatives are generally more apt to look at the words of a law in isolation and liberals more likely to take account of Congress’s purposes in enacting legislation.
Can the Trump Administration Strip Protection from ‘Dreamers’?
In November, the court will consider the fate of the nearly 800,000 immigrants known as “Dreamers” who were brought to the United States as children.
In 2012, President Barack Obama created a program to shield them from deportation, and to allow them to work. After Mr. Trump took office, he announced that he would wind down the program, saying it was unlawful.
Lower courts have so far blocked the attempt to rescind the program, Deferred Action for Childhood Arrivals, or DACA, ruling that the justifications the Trump administration has offered were inadequate.
A decision for the administration could take two forms: one narrow and the other more consequential. A narrow decision would say that presidents are allowed to change policy. A broader one would say that the program was unlawful to begin with, meaning that only Congress, and not a future president, could reinstate it.
Will the Court Restrict Abortion Rights?
The court
announced on Friday
that it will hear an abortion case challenging a Louisiana law that its opponents say would leave the state with only one doctor in a single clinic authorized to provide abortions.
In February, the court
granted a last-minute request
from abortion providers to block the law while they pursued the appeal in the case, Gee v. June Medical Services, No. 18-1460.
That
interim ruling
featured an unusual 5-to-4 coalition, with Chief Justice Roberts joining the court’s liberals to form a majority. The chief justice’s vote puzzled some observers, as he had dissented in
a 2016 decision
upholding an essentially identical Texas law.
The Louisiana law, which was enacted in 2014, requires doctors performing abortions to have admitting privileges at nearby hospitals. The law’s opponents say it imposes the sort of “undue burden” barred by a 1992 decision,
Planned Parenthood v. Casey
, making access to abortion more difficult without protecting women’s health. Its supporters say that admitting privileges are an important credential.
How the chief justice approaches the Louisiana case could illuminate his commitment to respecting precedents, said
Pratik A. Shah
, a lawyer with Akin Gump Strauss Hauer & Feld. “It will answer questions about how strong the chief justice’s institutionalist bent is,” he said. “That is going to be a telling case.”
Other abortion cases are likely to follow, because several state legislatures have recently enacted laws that seem calculated to try to force the Supreme Court to consider overruling
Roe v. Wade
, the 1973 decision that established a constitutional right to abortion. Mr. Trump has vowed to appoint justices who will vote to overrule the decision.
Will the Court Expand Second Amendment Rights?
In December, the court is scheduled to hear its first Second Amendment case in almost a decade, New York State Rifle and Pistol Association v. City of New York, No. 18-280. But it is not clear that the argument will take place.
When the court
agreed to decide the case
in January, it seemed poised to issue a significant decision on the scope of the right to bear arms. That prospect alarmed gun control proponents, who urged New York officials to repeal the challenged regulation.
The city did so in July, and state lawmakers enacted a law that appears to make it impossible for city officials to change their minds. That would seem to make the case moot.
The regulation, which appeared to be unique in the nation, had allowed residents with so-called premises licenses to take their guns to one of seven shooting ranges in the city. But it prohibited them from taking their guns to second homes and shooting ranges outside the city, even when the guns were unloaded and locked in containers separate from ammunition.
The challengers have urged the justices to hear the case even so, saying that some elements of the revised law remain problematic and that the justices should not encourage litigation gamesmanship.
Should the court decide the case on the merits, its ruling could transform Second Amendment jurisprudence, said
Irv Gornstein
, the executive director of Georgetown’s Supreme Court Institute. “A broad ruling would obviously have immense importance,” he said.
The justices, he added, may take account of recent mass shooting in deciding whether to go forward.
“The court is going to have to decide this question of mootness against the backdrop of several recent highly-publicized episodes of gun violence and heated debate between the two parties about solutions to gun violence,” Professor Gornstein said. “For some, this is a reason to dig in and plunge ahead to decide the case. For others, sitting this one out may be an inviting prospect.”
Can States Bar Aid for Religious Schools?
The court will also decide whether Montana can exclude religious schools from a state scholarship program.
Montana’s constitution, like those of many other states, bars the use of government money to aid religious groups. Three mothers who sought scholarships from the state program to send their children to a Christian school sued, saying the state constitution violated provisions of the United States Constitution on religious freedom and equal protection.
The Montana Supreme Court
rejected the challenge
and shut down the entire scholarship program.
The case, Espinoza v. Montana Department of Revenue, No. 18-1195, will give the United States Supreme Court an opportunity to explore the limits of its
2017 decision
in
Trinity Lutheran Church v. Comer
. That decision said Missouri could not exclude religious institutions from a state program to make playgrounds safer even though the state’s Constitution called for strict separation of church and state.
https://www.marketwatch.com/story/we-may-soon-find-out-whether-student-loan-companies-have-to-follow-state-law-2019-01-28
“Clash between student-loan companies and states could wind up in the Supreme Court”. MarketWatch (Jan 28, 2019)
Student-loan companies may soon be required to follow state law
By: Jillian Berman
States, student-loan companies and the federal government are in the midst of a battle over whether the firms where millions of borrowers send their payments each month must follow state laws — a clash that has the potential to wind up in the Supreme Court.
This year could be a decisive one for the fight. For borrowers, the outcome of these cases could determine whether they’re treated fairly by their student-loan companies, said Xavier Becerra, the attorney general of California,
who filed a suit
against student-loan servicer Navient last year, accusing the company of steering borrowers towards costly repayment plans.
That could mean the difference between digging out of their debt as quickly as possible or lingering unnecessarily in repayment.
“You’re talking about an industry where billions are in play here,” Becerra said. “If you secure some fair treatment in the collection of loans and if you ensure that people are being steered into the most efficient and sound way to repay their loans you’re talking about billions of dollars,” borrowers might save, he said.
Navient has claimed the allegations in the California suit and others are unfounded.
Servicers say they don’t have to follow state laws
Several cases have been winding their way through the legal system accusing student-loan companies of violating state law. Meanwhile, several states have been also been
working to enact new laws
cracking down on these firms, in some cases prompting legal action from the companies challenging the regulations.
Both the lawsuits accusing student-loan companies of violating state law and the push to enact new state student-loan laws arose out of claims from borrowers and advocates that the firms aren’t working in borrowers’ best interest. In fighting the suits and the new regulations, the companies have claimed they aren’t subject to state law, given the federal laws governing the student-loan program. That claim arises from a concept called “preemption” — the idea that federal law supersedes state law in cases where they’re in conflict.
Some courts have agreed with the companies, others have sided with the states.
Late last year, judges overseeing cases filed by the
Pennsylvania
and California attorneys general against student-loan giant Navient ruled that the suits could move forward, despite the company’s request they be dismissed. In the Pennsylvania case, the judge used a 70-page opinion to knock down Navient’s claims that it’s immune to the state laws under which the AG sued the company. Earlier this month, Navient asked the judge to allow the preemption question to be heard by an appellate court.
In the Southern District of Illinois and Northern District of Florida, judges said borrowers’ claims under state law — accusing a student-loan servicer of misleading them — are preempted by federal law. Both decisions are being appealed.
But judges have taken different approaches in other cases. In the Southern District of Illinois and the Northern District of Florida, judges found that borrowers’ claims under state law — accusing the servicer Great Lakes of misleading them — are preempted by federal law. Both decisions are now being appealed.
In Washington, D.C., where the Student Loan Servicing Alliance, a trade group, is suing the city over its student-loan servicer regulations, the court found that federal law preempted the city’s authority to license student-loan companies in cases where they’re servicing loans owned or held by the federal government. But the court also found that D.C. had the authority to regulate student-loan companies servicing commercially-owned, but government-backed student loans. Both sides are appealing parts of the ruling.
A Supreme Court battle seems increasingly likely
David Rubenstein, a professor at Washburn University’s school of law and an expert on preemption, said the “litigation will continue through the lower courts and is likely to result in different outcomes across the country.”
“The national importance of this litigation, combined with split decisions among appellate courts, make these cases prime candidates for Supreme Court review in the foreseeable future,” he said.
Servicers say ‘conflicting requirements could make it more confusing’
For servicers, the outcome of the litigation will help clarify whether they’re only subject to oversight by the federal government and their contracts with the Department of Education or whether they have to follow state laws across the country, which they say are in conflict with those requirements.
Scott Buchanan, the executive director of the Student Loan Servicing Alliance, said in an email that “conflicting requirements at the state and federal level could make it more confusing for the very borrowers we all want to help.” He said that servicers want to work with states on ways to better inform borrowers about how they can access resources to help them pay down their debt, like information on company websites or phone calls with their representatives.
Still, he said. “The courts have made clear that most federal student loans are serviced by federal government contractors and can’t be licensed by states,” in reference to the D.C. decision currently being appealed.
The role of the Trump administration
The controversy over whether student-loan companies are subject to state law began in earnest shortly after Donald Trump was elected president. In the few years leading up to his election, states began passing laws to regulate student-loan companies, citing what they viewed as lax oversight from the federal government. In many cases, these companies are hired by the federal government to manage its student-loan portfolio.
In court cases accusing student-loan companies of steering borrowers towards costly repayment programs, among other allegations, the student-loan firms have argued they’re immune to these state laws
In
December 2016
, the National Council of Higher Education Resources, a trade group, wrote to the Trump transition team asking that officials review these state laws and “determine that federal law and contractual requirements preempt state law when it comes to federal student loan servicing.” In July 2017, the group
wrote to
Secretary of Education, Betsy DeVos, expressing a similar request. The following year
DeVos issued a memo
arguing that state laws governing student-loan servicers are indeed preempted by federal regulations.
In court cases across the country accusing student-loan companies of steering borrowers towards costly repayment programs, among other allegations, the student-loan firms have argued they’re immune to these state laws, often invoking the DeVos memo.
Some of the recent opinions in these cases, the Pennsylvania ruling in particular, have pushed back on the idea that DeVos’s memo, which was issued outside the normal regulatory process, holds any weight. Student-loan borrower advocates are bullish on the idea that student-loan companies are subject to state law will hold up in court.
‘This argument being pushed by both industry and the Department of Education that student loan companies are above the law has failed from coast to coast.’ —Seth Frotman, the former student-loan ombudsman at the Consumer Financial Protection Bureau and the executive director of the Student Borrower Protection Center
“This argument being pushed by both industry and the Department of Education that student-loan companies are above the law has failed from coast to coast,” said Seth Frotman, the former student-loan ombudsman at the Consumer Financial Protection Bureau and the executive director of the Student Borrower Protection Center: “2019 will be a year for accountability over a very broken student-loan industry and one where we hope to see justice for countless student loan borrowers who have been ripped off at every turn,” he added.
Loan servicers’ immunity from state laws is being put to the test
Some legal advocates are even working to challenge decisions where courts have found student-loan companies are immune to state law. The National Student Legal Defense Network, an organization founded by lawyers who worked in the Education Department during the Obama administration, is representing borrowers appealing decisions in two different cases accusing their student-loan company, Great Lakes, of violating state law. In both cases, lower court judges have ruled that the borrowers’ claims are preempted.
In one case, borrowers have accused Great Lakes of misleading them in their pursuit of loan forgiveness under a government program for public servants. In the other, a borrower accused the company of systematically steering her into an unnecessarily costly repayment plan. A Great Lakes representative didn’t respond to a request for comment.
Dan Zibel, the vice president and chief counsel at NSLDN, said his organization is “cautiously optimistic” about the outcome of the cases, noting that “a growing number of courts are rejecting the preemption arguments.” Still, he said the outcome is hard to predict.
“I don’t think we’ve seen the final word on this yet,” Zibel said. If the borrowers Zibel represents prevail that decision could carry more weight because it would be coming from an appellate court.
It’s still too early to tell exactly how the courts will come down on these questions. But the fact that some judges are allowing the cases to proceed means that student-loan borrowers, advocates and other stakeholders will get a chance to see whether the allegations against these companies have factual and legal merit.
“Through discovery and appellate judicial review, these claims are going to be put to the test,” Rubenstein said.
Jillian Berman
Jillian Berman covers student debt and millennial finance. You can follow her on Twitter @JillianBerman.
The following materials describe some of the key elements of the American court system. As a beginning point, remember we actually have two court systems: a state court system and a federal court system. If you have a problem with the administrative system of Oregon or another state, then you probably will need to seek correction in the state court system, after you have used whatever appeals process the agency itself has.
To get a hearing in a federal court, you must show there is a federal issue involved, such as the Fourteenth Amendment to the U.S. Constitution requirement that all citizens receive “equal protection” of the law and due process before they are harmed by the government.
There is a brief you-tube video overview on the United States court system and federal review process produced by PBS:
____________________
Office of the United States Attorneys (OUSA – for references)
Introduction To The Federal Court System
The federal court system has three main levels: district courts (the trial court), circuit courts which are the first level of appeal, and the Supreme Court of the United States, the final level of appeal in the federal system. There are 94 district courts, 13 circuit courts, and one Supreme Court throughout the country.
Courts in the federal system work differently in many ways than state courts. The primary difference for civil cases (as opposed to criminal cases) is the types of cases that can be heard in the federal system. Federal courts are courts of limited jurisdiction, meaning they can only hear cases authorized by the United States Constitution or federal statutes. The federal district court is the starting point for any case arising under federal statutes, the Constitution, or treaties. This type of jurisdiction is called “original jurisdiction.” Sometimes, the jurisdiction of state courts will overlap with that of federal courts, meaning that some cases can be brought in both courts. The plaintiff has the initial choice of bringing the case in state or federal court. However, if the plaintiff chooses state court, the defendant may sometimes choose to “remove” to federal court.
Cases that are entirely based on state law may be brought in federal court under the court’s “diversity jurisdiction.” Diversity jurisdiction allows a plaintiff of one state to file a lawsuit in federal court when the defendant is located in a different state. The defendant can also seek to “remove” from state court for the same reason. To bring a state law claim in federal court, all of the plaintiffs must be located in different states than all of the defendants, and the “amount in controversy” must be more than $75,000. (Note: the rules for diversity jurisdiction are much more complicated than explained here.)
Criminal cases may not be brought under diversity jurisdiction. States may only bring criminal prosecutions in state courts, and the federal government may only bring criminal prosecutions in federal court. Also important to note, the principle of double jeopardy – which does not allow a defendant to be tried twice for the same charge – does not apply between the federal and state government. If, for example, the state brings a murder charge and does not get a conviction, it is possible for the federal government in some cases to file charges against the defendant if the act is also illegal under federal law.
Federal judges (and Supreme Court “justices”) are selected by the President and confirmed “with the advice and consent” of the Senate and “shall hold their Offices during good Behavior.” Judges may hold their position for the rest of their lives, but many resign or retire earlier. They may also be removed by impeachment by the House of Representatives and conviction by the Senate. Throughout history, fourteen federal judges have been impeached due to alleged wrongdoing. One exception to the lifetime appointment is for magistrate judges, which are selected by district judges and serve a specified term.
District Courts
The district courts are the general trial courts of the federal court system. Each district court has at least one United States District Judge, appointed by the President and confirmed by the Senate for a life term. District courts handle trials within the federal court system – both civil and criminal. The districts are the same as those for the U.S. Attorneys, and the U.S. Attorney is the primary prosecutor for the federal government in his or her respective area.
District court judges are responsible for managing the court and supervising the court’s employees. They are able to continue to serve so long as they maintain “good behavior,” and they can be impeached and removed by Congress. There are over 670 district court judges nationwide.
Some tasks of the district court are given to federal magistrate judges. Magistrates are appointed by the district court by a majority vote of the judges and serve for a term of eight years if full-time and four years if part-time, but they can be reappointed after completion of their term. In criminal matters, magistrate judges may oversee certain cases, issue search warrants and arrest warrants, conduct inital hearings, set bail, decide certain motions (such as a motion to suppress evidence), and other similar actions. In civil cases, magistrates often handle a variety of issues such as pre-trial motions and discovery.
Federal trial courts have also been established for a few subject-specific areas. Each federal district also has a bankruptcy court for those proceedings. Additionally, some courts have nationwide jurisdiction for issues such as tax (United States Tax Court), claims against the federal government (United States Court of Federal Claims), and international trade (United States Court of International Trade).
Circuit Courts
Once the federal district court has decided a case, the case can be appealed to a United States court of appeal. There are twelve federal circuits that divide the country into different regions. The Fifth Circuit, for example, includes the states of Texas, Louisiana, and Mississippi. Cases from the district courts of those states are appealed to the United States Court of Appeals for the Fifth Circuit, which is headquartered in New Orleans, Louisiana. Additionally, the Federal Circuit Court of Appeals has a nationwide jurisdiction over very specific issues such as patents.
Each circuit court has multiple judges, ranging from six on the First Circuit to twenty-nine on the Ninth Circuit. Circuit court judges are appointed for life by the president and confirmed by the Senate.
Any case may be appealed to the circuit court once the district court has finalized a decision (some issues can be appealed before a final decision by making an “interlocutory appeal”). Appeals to circuit courts are first heard by a panel, consisting of three circuit court judges. Parties file “briefs” to the court, arguing why the trial court’s decision should be “affirmed” or “reversed.” After the briefs are filed, the court will schedule “oral argument” in which the lawyers come before the court to make their arguments and answer the judges’ questions.
Though it is rare, the entire circuit court may consider certain appeals in a process called an “en banc hearing.” (The Ninth Circuit has a different process for en banc than the rest of the circuits.) En banc opinions tend to carry more weight and are usually decided only after a panel has first heard the case. Once a panel has ruled on an issue and “published” the opinion, no future panel can overrule the previous decision. The panel can, however, suggest that the circuit take up the case en banc to reconsider the first panel’s decision.
Beyond the Federal Circuit, a few courts have been established to deal with appeals on specific subjects such as veterans claims (United States Court of Appeals for Veterans Claims) and military matters (United States Court of Appeals for the Armed Forces).
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the American judicial system, and has the power to decide appeals on all cases brought in federal court or those brought in state court but dealing with federal law. For example, if a First Amendment freedom of speech case was decided by the highest court of a state (usually the state supreme court), the case could be appealed to the federal Supreme Court. However, if that same case were decided entirely on a state law similar to the First Amendment, the Supreme Court of the United States would not be able to consider the case.
After the circuit court or state supreme court has ruled on a case, either party may choose to appeal to the Supreme Court. Unlike circuit court appeals, however, the Supreme Court is usually not required to hear the appeal. Parties may file a “writ of certiorari” to the court, asking it to hear the case. If the writ is granted, the Supreme Court will take briefs and conduct oral argument. If the writ is not granted, the lower court’s opinion stands. Certiorari is not often granted; less than 1% of appeals to the high court are actually heard by it. The Court typically hears cases when there are conflicting decisions across the country on a particular issue or when there is an egregious error in a case.
The members of the Court are referred to as “justices” and, like other federal judges, they are appointed by the President and confirmed by the Senate for a life term. There are nine justices on the court – eight associate justices and one chief justice. The Constitution sets no requirements for Supreme Court justices, though all current members of the court are lawyers and most have served as circuit court judges. Justices are also often former law professors. The chief justice acts as the administrator of the court and is chosen by the President and approved by the Congress when the position is vacant.
The Supreme Court meets in Washington, D.C. The court conducts its annual term from the first Monday of October until each summer, usually ending in late June.
CG2 by Erica Perez
__________________________________________
The State Administrative Appeals System
Mark Henkels (March 24, 2020)
As with the federal government and most state administrative systems, the Oregon administrative appeals system generally requires any dispute over an agency decisions start with an administrative hearing. In a few cases, such as where you think you have been wrongly denied disability benefits, the hearing will be with the specific agency in charge of the program. More typically, such as regarding a dispute over a license denial, you will have your hearing before a Central Administrative Hearing panel. Your journey for administrative justice starts in the bureaucracy, not the courts.
In Oregon, if you are not content with the outcome of the administrative hearing, you go directly to the Appellate Court level, skipping the Trial Court level. Essentially the system assumes that you have had an opportunity to introduce evidence and receive judgement before a neutral administrative hearing officer. Therefore, the appellate court can look at the established hearing record to determine whether the evidence was properly managed and considered and whether the law properly followed by the agency. This is similar to how an appeals court views the normal trial court process. After that, if you are still unhappy, you may appeal to the state supreme court. The Oregon Supreme Court can decide for itself whether your case deserves their review, and by far most do not.
Ultimately, if you can show that there is an adequate federal issue involved, such as an allegedly egregious violation of the US Fourteenth Amendment requirement for “equal protection” or “due process”, then you can appeal to the US Supreme Court(SCOTUS). On rare occasions, SCOTUS may choose to take your case. That would be very fortunate, but you could still lose!
PS 480: Introduction to Administrative Law
Dr. Mark Henkels
Spring 2020
2020,
1
General points about the class:
Each week you have one writing assignment, with one week off of your choosing late in the quarter.
Each Wednesday you will submit an assignment by 5 pm. On weeks where there are two possible essays, the one you will submit will be identified by 4pm that Wednesday.
For the essays, use only course materials.
2020,
2
Look at the questions, go through the material for that section, then write the essays.
You should be able to identify the key required elements from the materials and assemble them into a coherent thoughtful essay.
The specific papers on rulemaking, adjudication, and comparing cases are self-explanatory
– but always feel free to ask for clarification!
I think you will find that the demands are reasonable considering there is no formal class meetings.
2020,
3
This class is content-based, seeks to provide students a solid sense of how things ought to, or ought not to, work within the administrative context.
RED FLAGS
2020,
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Section One
The world of administrative law
– Constitutional context of federalism and judicial review
– basic designs and processes of the judicial system
– The rise and current conditions in the bureaucracy
2020,
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We created a bureaucracy to implement our politically-chosen goals.
How do we ensure the goals are properly pursued?
And what of the dangers of THE BUREAUCRACY !!!!
And the bureaucratic bureaucrats who control it !!!!!!!!
Over 20 million of them!
2020,
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PS 480 Introduction: The Context
Principal-agent problem: the principal (owner, citizen, legislator) has different interests than the agent (the workers, elected officials, the bureaucracy)
Constant challenge of making sure the agent properly serves the will of the principal
Can we balance rights with other social concerns, such as effectiveness and efficiency?
2020,
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PS 480 Introduction: The Context
One key term to remember:
Due process: the appropriate or “fair” set of actions or considerations that must be done before the government can legally harm an individual
2020,
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Hierarchy of Law: Lower sources cannot violate upper
1. Federal Constitutional
2. Federal Statutory
3. Federal Administrative Rules
4. Federal Executive orders & similar acts, like “signing statements (below other fedl law, but not necessarily state)
5. State Constitutional
6. State Statutory
7. State administrative rules
Case or common law
9. State Executive orders
CONTROL OVER AGENCIES: Judicial or Legal Control
2020,
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Hierarchy of Law:
Federal Constitutional law (and Treaties) : Basic principles are subject to interpretation over time.
Apply to all elements of society due to Article VI, the “Supremacy Clause” of US Constitution
Article VI: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
PS 480 Introduction: The Context
2020,
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Hierarchy of Law: Federal Constitutional Law
Key Dimensions of federal constitutional law affecting administration
Federalism
Separation of Powers
Civil Rights and Liberties
2020,
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US Constitutional Law: Federalism
Congressional Power regarding states:
A. Supremacy Clause: states cannot abridge any constitutional action by Congress: Congress “preempts”
Necessary and Proper Clause: Congress can do whatever it takes to execute other powers
– McCulloch v. Maryland (1819)
Commerce Clause: Congress can regulate commerce between states, foreign nations, Indian tribes
2020,
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US Constitutional Law: Federalism
Commerce clause expanded seemingly without limit after NLRB v. Jones and Laughlin Steel (1937)
Some limits today:
New York v. United States (1992)
United States v. Lopez (1995)
U.S. v. Morrison (2000)
2020,
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US Constitutional Law: Federalism
Preemption: states may not intervene in areas that Congress has chosen to have federal law prevail.
2016 legislation to forbid states from labeling GMOs in different manner than US allows
– Currently there is a battle brewing about whether the EPA can preempt California’s stringent air pollution laws
2020,
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US Constitutional Law: Federalism
Pragmatic adaptations of federal law:
Partial preemption: federal government allows states to regulate as long as they fit federal goals (often incentivized by grants)
Waivers: when the federal government grants explicit permission for states to vary from basic federal rules and mandates
2020,
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US Constitutional Law: Federalism
Pragmatic adaptation of federal law:
Congressional Mandates and Conditions:
If states accept money (“grants”) from Congress, they are bound by any attached requirements
Potential limits established in Florida v. US Department of Health and Human Services (2012): PPACA case
(PPACA: aka “ACA”, aka “Obamacare”)
2020,
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US Constitutional Law: Civil Rights & Liberties
Tenth Amendment: States have any powers not explicitly granted to Congress or forbidden under the US Constitution or their own constitutions.
2020,
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US Constitutional Law: Separation of Powers
Constitutional references:
Article I: powers of Congress, notably “enumerated powers” such as the “commerce clause”
Article II: spells out the powers of the executive branch, primarily about the president’s direct power
– Little on administrative powers or “bureaucracy”
Article III: spells out powers of the judiciary.
Other than the existence of Supreme Court, Congress can change the design and jurisdiction of the judiciary
2020,
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US Constitutional Law: Separation of Powers
Agencies have odd relationship to basic concept of separation of powers:
— Combine legislative, executive and judicial work
THERE IS AN ENDLESS BATTLE FOR CONTROL OVER IMPLEMENTATION
2020,
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US Constitutional Law: Civil Rights & Liberties
Constitutional limits that apply to all governments, primarily located in:
1. Bill of Rights: First ten amendments
2. Thirteenth, Fourteenth, and Fifteen Amendments
3. Fourteenth Amendment most critical for:
– equal protection of the law: means states must respect rights and liberties found in US Constitution
– due process guaranteed
2020,
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Amendment XIV
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2.
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
2020,
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Hierarchy of Law:
2. Federal Statutory law: enable agencies to act: read and applied more literally than the constitution, changed more readily
Food and Drug Administration v. Brown and Williamson (2000) : cigarettes are not “drugs”, not agency responsibility. Agency acting beyond jurisdiction: ultra vires
– In 2009 the FDA was given explicit authority over tobacco
PS 480 Introduction: The Context
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3. Federal Administrative rules and regulations: implement statutes and must fit with statutory meaning and purposes
Whitman v. American Trucking Association (2001): agency cannot consider costs of regulations unless the statute requires or allows it. CAA does not permit such consideration in this situation
Hierarchy of Law:
2020,
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4. Federal Executive orders: guidelines for administration, must fit statutory and constitutional law
Created and rescinded unilaterally by President: over 14,000
Dole v. United Steelworkers (1990): executive orders do not override legislation: OMB cannot prevent legally required OSHA rule to disclose workplace hazards
Hierarchy of Law:
2020,
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4. Federal Executive orders: Related actions
Presidential proclamations: declarations of acting on established powers: ex: suspending trade for human rights reasons – directed outside of government
“Signing statements” state president’s interpretation of a statute and intent regarding implementation, including inaction due to disagreement on constitutionality
Hierarchy of Law:
2020,
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Hierarchy of Law:
5. State Constitutional law: – basic principles subject to interpretation over time by state courts, cannot violate constitutional federal laws
– Can create significantly different rights than federal law
PS 480 Introduction: The Context
2020,
26
Hierarchy of Law:
6. State statutory law: must fit state and federal laws
7. State administrative rules and regulations: tend to reflect expertise, must fit statutory purpose and guidelines
PS 480 Introduction: The Context
2020,
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Hierarchy of Law:
8. Common law: “judge-made” law: principles developed over by judges resolving problems in manner that fits existing laws
– can be connected to constitutional rights, such as when contract law connects to property right – Oregon’s 2015 Moro case regarding PERS benefits
PS 480 Introduction: The Context
2020,
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Hierarchy of Law: common law, case law, and precedent
stare decisis: rule of precedent: fundamental task in common law is to find how existing non-constitutional or non-statutory law fits situation
“Case law”: is the general principle of finding how previous decisions (“stare decisis”) fit with existing case, including constitutional, statutory, and common law.
PS 480 Introduction: The Context
2020,
29
9. State Executive orders: guidelines for administration by governor
PS 480 Introduction: The Context
2020,
30
Hierarchy of Laws
Statutory law (and any state laws) cannot violate the federal constitution.
No state law can violate state constitution.
Administrative rules must fit within statutes.
Case or common law cannot violate statutory or constitutional law: basically “black letter law” displaced tradition
Executive orders cannot violate statutes or constitutions.
2020,
31
Judicial Process: Most cases start in agency hearings or state trial courts, but federal constitutional law applies universally.
a) trial level – record of evidence, jury – individual justice is goal
appellate level – briefs, presentations – individual justice remains goal:
DC Circuit can be used by any party in suit against federal government and is often designated place for administrative challenges
c) supreme appellate level – briefs, presentations: systemic justice is goal
majority, dissenting, concurring opinions
amicus curiae
– dictum/dicta: content of opinion that goes beyond direct issues
PS 480 Introduction: The Context
Oregon Judicial Department, 2015
http://courts.oregon.gov/OJD/docs/aboutus/appealsinoregoncourts
The United States has a “dual judicial system”, in which state and federal court systems operate independently
History and key background cases: Philip Cooper approach
Period I: The Era of Restraint (Founding to 1928)
Marked by:
1) affirmation of Congressional power to create administrative agencies
– McCulloch v Maryland (1819): states could not tax central bank properly established by Congress
-Gibbons v. Ogden (1824): interstate commerce clause could allow regulations within states: steamship lines
– later ICC, FTC
2) limited exercise of government power in practice
PS 480 Introduction: The Context
Period II: Crossroads (1928-1946)
Broader Delegation(giving) of power to agencies accepted – discussed later
– explosion in government action
Commerce clause expanded, increasing Congressional/national government reach
– NLRB v. Jones and Laughlin Steel (1937)
Agencies finding their own way in law: diversity and consistency problems
PS 480 Introduction: The Context
Period II: Crossroads (1928-1946)
McCarren-Summers Act(1946): Administrative Procedures Act(APA)
– systematic rulemaking
– minimal administrative due process
– guidelines for judicial review
PS 480 Introduction: The Context
Era of Large-Scale Bureaucracy (1946-1975)
Creation of many government benefits fostered recognition of government benefits or regulations as “property rights” or affecting liberty, therefore introducing more due process concerns concerning government actions
Beginning reassertion of counter-pressures to constrain government and bureaucracy
Fight against socialism, or at least “dependency”
Stop Big Brother
– Counter over-regulation
PS 480 Introduction: The Context
Contemporary Context (1976- present)
Five Characteristics of Contemporary Context:
Ambivalence regarding government
Politicization of administration
Fiscal stress
Contracting out/ privatization
Globalization
PS 480 Introduction: The Context
Contemporary Context (1976- present)
Five Characteristics of Contemporary Context:
1. Ambivalence regarding government: regulation, de-regulation, re-regulation.
All politicians push regulation, de-regulation, respond to problems of de-regulation.
Government, esp. bureaucracy, criticized as problem and not a solution, yet is no other tool for certain problems
PS 480 Introduction: The Context
Five Characteristics of Contemporary Context:
Ambivalence regarding government:
Consider size, complexity, and controversy over Homeland Security and Health and Human Services
– Action on COVID 19, or too much action?
PS 480 Introduction: The Context
2) Politicization of administration
– importance of implementation clear
Reagan: first “administrative presidency”: cannot change popular laws, but can implement them differently (or not at all)
Legislators seek to guide implementation more
– State resistance to Affordable Care Act
Five Characteristics of Contemporary Context:
2) Politicization of administration
Consider Obama’s last years
Not being able to change immigration, Obamacare, or environmental statutes, the Trump administration deliberately uses the tools of appointment, regulatory review, the reallocation of discretionary funds, and executive orders to push as far as the courts will allow to advance policy objectives.
Five Characteristics of Contemporary Context:
Five Characteristics of Contemporary Context:
3) Fiscal stress
– more discretion because agencies must prioritize, but agencies leave things undone
– expensive procedures (litigation) less desirable to agencies
4. Contracting out/ privatization
Privatization: use of private organizations for public purposes
pushed by desire for efficiency and ideological purposes
Public contracts: “principal-agent” problem is central issue when creating and operating by contract: NSA, CIA, and Edward Snowden
Booz Allen Hamilton: 99% revenue from US
Five Characteristics of Contemporary Context:
4. Contracting out/ privatization
Employment by “shadow government” of government corporations and contractors swells federal employment from 5 million to over 17 million. (Paul Light)
Different legal context for private contractors and some independent corporations
Five Characteristics of Contemporary Context:
5. Globalization
– Preemption by treaties
Appeals to international panels
– Drive to de-regulate for competitive advantage
Five Characteristics of Contemporary Context:
Administrative Law:
– Universal elements such as the Constitution and a few overarching laws like the Administrative Procedures Act (APA), (and parallels in states)
– Special overarching laws depending on context: National Environmental Protection Act, international trade
– Specific agency context built through:
– “organic acts” – which create agencies and set their basic design and responsibilities
– “enabling acts” which assign agencies specific responsibilities an sometimes specific procedural requirements
PS 480 Introduction: The Context
Examples of government diversity:
Hall’s “Executive Agencies” : under direct control of president with congressional oversight
Departments: “cabinet rank” agencies, contain various subsidiary offices and programs. Executive and legislative struggles to control
“Independent Executive Agencies”: like departments but typically have a single purpose and are not cabinet level: EPA.
PS 480 Introduction: The Context
Examples of government diversity:
Hall’s “Independent Agencies”: less directly governed by president
Independent regulatory commissions or boards – insulated from politics by long-term board appointments.
Typically staggered terms and diverse political representation.
Board members can only be removed for “cause”, not by presidential discretion
Ex: Securities and Exchange Commission (SEC), Federal Communications Commission (FCC)
PS 480 Introduction: The Context
Examples of government diversity:
Government Corporations: mimic private management model. Free of typical administrative procedural requirements, but are bound by Constitutional limits on government: Amtrak
At state level there are hundreds of special commissions or boards, each with some unique characteristics
Administrative work
Making rules (aka ”regulations”)
– Four page statute on compensation to “bailed out” corporation executives led to 123 pages of regulations
Adjudicating disputes – resolving disagreements over agency policies or decisions
– Social Security Agency handles more hearings than all federal courts, and judges review over 95,000 adjudicative proceedings
PS 480 Introduction: The Context
Core consideration in administrative law: use of discretion in world of human and complex values
Are bureaucratic choices appropriate?
Bureaucrats are human: personal qualities, values, and relationships matter
Citizens want to be treated equally, and as individuals
Public expectations are diverse and changing
So agencies have discretion and power: how do we control them?
CONTROL OVER AGENCIES:
Legislative
Executive
Judicial: (this will be heart of most of the class)
PS 480 Introduction: The Context
Limited appointment power: advise and consent with “principal” officers and control over those directly serving Congress
Money: controls ‘purse strings”, although must be very specific or president may reallocate
Oversight: hearings
Legislative control: amend laws to constrict discretion
Legislative Control over Administration
Executive Control over Administration
Appointment: Shared power with Congress for principal officers
– President controls appointment of “inferior officers” and interim officers
Most employees part of the “civil service system” or work in specific employee systems (ex. military): generally on basis of merit and not controlled by president
Removal: presumption that president can remove principal and inferior officers, but Congress may restrict this when officers have quasi-judicial or quasi-legislative responsibilities: lower employees have due process
PS 480 Introduction: The Context
Presidential tools:
Office of Management and Budget (OMB) is key executive agency for oversight of rulemaking/regulatory process
OMB’s Office of Information and Regulatory Affairs(OIRA) enables the president (and their officers) to review any “significant regulatory action”
In practice this can lead to delays(possibly permanent) and edits in final administrative rules.
CONTROL OVER AGENCIES: Executive Branch
Executive orders that define priorities or reorganize organizations
Budget influence – creates proposed budget that can influence later discussions
– Can prioritize within categories
PS 480 Introduction: Delegation of Power
Legislative delegation: acceptance of need for Congress to give some legislative power to the bureaucracy was almost from start of Republic.
J. W.Hampton v. United States (1928)- delegation of tariff power
delegation must have “intelligible principle”
– purpose is not primarily to raise revenue but to promote favorable trade
PS 480 Introduction: The Context
Delegation going too far ….
Schechter Poultry (1935) : “sick chickens”: National Industrial Recovery Act gave President power to make “codes of fair competition”
too unlimited, vague and contradictory: ex. limit monopolies but encourage cooperation
Congress could not give president vague power to further delegate power, such as to private bodies that could interfere with state regulations
(Section differentiating intrastate and interstate commerce not useful anymore)
Also: Panama Refining Co. v. Ryan (1935)
Delegation of legislative power
No longer is “intelligible principle” or “standards” a likely concern:
Whitman Trucking (2001) case: Clean Air Act’s “adequate margin of safety” and “requisite to protect the public health” are sufficient guidelines to discretion
Touby v. U.S. (1991): Controlled Substances Act has enough standards to create accountability for Attorney General to make temporary schedule determinations for controlled substances.
Delegation of legislative power
Delegation Doctrine Contemporary Issue: are agencies acting properly within their delegated powers?
1980 Industrial Union Dep’t AFL-CIO v.American Petroleum Institute: agency overreached in its interpretation of power in requiring unjustified protection from Benzene
Gonzales v. Oregon (2006) – U.S. Attorney General could not use Controlled Substance Act to restrict assisted suicide since such applications were not even reasonably implied in law
Cases on website are often presented through their syllabus.
Syllabi are not the actual court opinions. They are summaries prepared by the Court Reporter.
Syllabi are easy to read but less nuanced and thorough.
They avoid the judicial discussions featured in actual opinions and are NOT the law.
Often I include excerpts of the actual opinion which contain the core meaning of the case for our purposes
Any dissents are actual written opinions of justices.
Example of court concerns
Florida v. US Department of Health and Human Services (2012) National Federation of Independent Business v. Sebelius (2012)
Four main possible issues:
Is the issue ripe, is review precluded by Anti-Injunction Act: can the mandate can be evaluated before implementation? Is this in the court’s jurisdiction?
Can federal government greatly expand mandate on states attached to Medicaid?
Can Congress require action, specifically is the purchase of insurance covered by the “commerce clause”?
If key provision is found unconstitutional, is entire Affordable Care Act (ACA) invalidated?
APPEALS IN OREGON COURTS
Supreme Court
Court of Appeals
Tax
Court
Circuit
Court
Admini-
strative
Tribunal
*Justice
Court
*Municipal
Court
County
Court
Citizens and the State of Oregon
Individuals or organizations The state’s district attorneys
initiate lawsuits depending prosecute criminal cases.
on location and type of Government agencies may
case. initiate certain civil actions.
* If a justice court or municipal court becomes a court of record, appeals go directly to the Court of Appeals. To be a
court of record, the justice of the peace or municipal court judge must be a licensed lawyer, and the court must
have a court reporter who records the court’s proceeding.
KWC:sh/Appeals in Oregon Courts 12-26-06
Supreme Court has
original jurisdiction in
mandamus, quo
warranto, habeas
corpus
Court Action
Initiated
Routes of
Appeal
APPEALS IN OREGON COURTS
Supreme Court
Court of Appeals
Tax
Court
Circuit
Court
Admini-
strative
Tribunal
*Justice
Court
*Municipal
Court
County
Court
Citizens and the State of Oregon
Individuals or organizationsThe state’s district attorneys
initiate lawsuits dependingprosecute criminal cases.
on location and type ofGovernment agencies may
case. initiate certain civil actions.
* If a justice court or municipal court becomes a court of record, appeals go directly to the Court of Appeals. To be a
court of record, the justice of the peace or municipal court judge must be a licensed lawyer, and the court must
have a court reporter who records the court’s proceeding.
KWC:sh/Appeals in Oregon Courts 12-26-06
Supreme Court has
original jurisdiction in
mandamus, quo
warranto, habeas
corpus
Court Action
Initiated
Routes of
Appeal
ESSAY 1
Section I: The Administrative State, Courts, and Administrative Law
Essays should be 4-6 double-spaced pages. They should be written using only lectures and reading materials provided on Moodle. Identify the sources for specific facts, concepts, and quotes by simple parenthetical references. Since you are only to use class materials, the instructor should easily be able to identify the source.
For the essays, you cannot “cut and paste”. Use the materials from class only and be sure to provide a simple reference, such as (Powerpoint) or (Library of Congress).
Answer all parts of the chosen question. Demonstrate that you have reviewed and understand any relevant information in that section’s materials.
When useful to the answer, incorporate details such as case names, author’s names, facts, and particularly specific terms or jargon important to that subject.
The essays should be thematic. Sentences should be complete.
TOPIC: Oregon’s Response to the COVID 19 Crisis, and another victim of amnesia
You are special advisor to Patrick Allen, director of the Oregon Health Authority(OHA). The OHA is the lead agency for Oregon’s public health response to the COVID 19 situation.
Mr. Allen had a sneezing fit and fell down some stairs, injuring his head and causing at least temporary memory loss. State leaders do not want to lose any momentum on the state’s effort to limit the impact of COVID 19 by replacing Mr. Allen
Since you are taking PS 480, the leaders know you are an expert on the legal context of state administration, so they ask you to re-educate him on some basics of his work context.
Construct a lesson for Mr. Allen that addresses the following points.
1) Can the OHA normally do anything it wants in the name of public health?
To answer this, discuss the “hierarchy of law”, and note the significance of an agency’s “enabling” or “organic” act in establishing an agency’s powers and procedures.
2) Can the Trump Administration try to get the economy growing faster by declaring invalid state limitations on public activities, such as Governor Brown’s current “Stay Home” order?
To answer this, consider the legal context of federalism. What powers and rights do the federal and state governments have, and how do they relate to each other?
3) If someone feels that a state agency order that restricts their business violates their rights, what is the typical path of their legal challenge to the agency?
To answer this, note the legal appeals process for those challenging state agency actions, and the relationship between state and federal courts.
4) Identify one aspect of the administrative context that you think the public is particularly ignorant about, and why that may be a problem.