Supreme Court

  • July 31, 2014

    by Ellery Weil

    Andrew Prokop at Vox reports on the House of Representatives’ plan to sue President Obama, and what that means in a larger historical context.

    Politico’s Josh Gerstein reports on Supreme Court Justice Ruth Bader Ginsburg’s interview with Katie Couric, where the 81-year-old justice revealed she does not intend to step down in the near future.

    At The Volokh Conspiracy, Dale Carpenter looks at the possible role that animus could play in potential same-sex marriage litigation before the Supreme Court.

    In a piece for Salon, Katie McDonough writes about strong new pushback on recent efforts to curtail reproductive rights, including a new measure introduced by Massachusetts Gov. Deval Patrick to work around the recent ban on abortion clinic buffer zones.

    Writing for The Atlantic, Connor Friedersdorf discusses the legality and ethics of the NSA suppressing former head Keith Alexander’s financial disclosures as he transitions into the private sector.

  • July 23, 2014
    Guest Post

    by Timothy S. Jost, the Robert L. Willett Professor of Law, Washington and Lee University School of Law

    July 23, 2014 was a momentous day in the history of the Affordable Care Act. Shortly after 10 a.m., a three-judge panel of the District of Columbia Court of Appeals issued a split 2-1 decision striking down an Internal Revenue Service rule that permits federally facilitated exchanges to issue premium tax credits.  Two hours later, the Fourth Circuit Court of Appeals in Richmond released a unanimous decision upholding the IRS rule.

    The ACA authorizes the IRS to issue premium tax credits to uninsured lower and moderate income Americans through exchanges.  The ACA requests that the states establish exchanges, and sixteen states have done so.  The ACA also, however, authorizes the federal government to establish fallback exchanges in states that fail to set up their own exchanges, and it has done so in 34 states.  The IRS regulation allows premium tax credits to be awarded to eligible individuals by both state-operated exchanges and federally facilitated exchanges.

    Two subsections of the ACA, however, seem to provide that tax credits are available for months in which an individual is enrolled in a qualified health plan “through an Exchange established by the State under 1311” of the ACA. The plaintiffs argue that federal exchanges cannot issue premium tax credits tax credits to individuals who enroll through federal, as opposed to state-operated exchanges.

    The majority of the D.C. Circuit ruled for the plaintiffs, focusing narrowly on the “established by the State” language, but finding nothing in the ACA to clearly contradict the plaintiffs’ reading of the law. The Fourth Circuit found the law ambiguous, and thus under the Supreme Court’s Chevron rule, deferred to the IRS and its interpretation of the law.

  • July 17, 2014

    by Jeremy Leaming

    Eighty-three percent of American “voters believe police should get a warrant before searching personal information on someone’s cell phone,” Microsoft General Counsel Brand Smith notes in a post on Digital Constitution.

    The survey conducted by the research firm, Anzalone Liszt Grove, following the U.S. Supreme Court’s unanimous opinion in Riley v. California, also reveals that 86 percent of respondents “believe police should have to follow the same legal requirements for obtaining personal information in the cloud as they do for personal information stored on paper.” In Riley, the high court found that police need warrants to search mobile devices of people they arrest.

    Smith says that while the Riley decision can be viewed as a “historic first step,” it only addresses “one of many questions that the growth of technology is posing for our privacy laws. We’ve raised another unresolved question in a case in federal court in New York in which we’re challenging a search warrant seeking customer communications stored in our data center in Ireland.”

    He continued that Microsoft believes it is a “problem for governments to use a warrant to reach across international borders and search a person’s email without respecting local privacy laws.” Smith then cites the survey that says a majority of Americans agree.

    Seventy-nine percent of those polled believe the “federal government should have to respect local privacy laws when searching through people’s personal information like their email accounts.” Moreover, the survey found 56 percent of respondents are “worried” that if the federal government demands “information in other countries without going through their governments, then other countries will follow suit and force companies to turn over Americans’ private information.”

    Smith concludes that the polling, all of which is available here, “suggests” Americans understand “what’s at stake for technology and the future of privacy.”

  • July 11, 2014
    Guest Post

    by Catherine Fisk, Chancellor’s Professor of Law, University of California Irvine School of Law

    As I have argued elsewhere, in striking down an Illinois law authorizing the state to require unionized home care workers to pay their fair share of the cost of union representation, the Supreme Court in Harris v. Quinn disregarded its longstanding rule that it does not decide questions of state law and failed to reconcile the result with the First Amendment rights of government workers or the Court’s other cases on when compulsory fees constitute compelled speech. 

    First, under Illinois law, government-paid and government-regulated home health-care workers are state employees. Justice Alito’s majority opinion in Harris disregarded state law when it invented a vague new category of non-“full-fledged” government employees who have greater First Amendment rights than other workers to refuse to pay the costs of union representation.

    Second, if under Garcetti v. Ceballos, and United States Civil Service Commission v. National Association of Letter Carriers, government employees have no First Amendment rights to speak on the job on matters of public concern or to engage in political activity on their own time, why do some government employees have a First Amendment right to refuse to pay for services that their union is legally required to provide them?

    Third, the Court failed to explain why fair share fees differ from compulsory payment of lawyers’ bar dues, which the Court approved in Keller v. California State Bar.  To quote Keller, substituting only “home care workers” for “legal profession,” Illinois has an “interest in regulating [home health-care workers] and improving the quality of [home health-care] services.”

    Yet there is a way forward. As I argue with Ben Sachs, where unions are unable to require objecting workers to pay fees – whether it’s in right-to-work states or in work situations that fall under Harris v. Quinn – we should get rid of the rule of exclusive representation. Non-fee payers wouldn’t be subject to the terms of the collective bargaining agreement, they wouldn’t have to interact with their employer through a collective agent, and they wouldn’t be required to pay anything to a union they didn’t vote for. Unions, for their part, would be required to represent only those workers who actually want representation.  Another possibility is that governments wishing to bargain with a single representative on behalf of their workers could agree to pay the cost of the representational services on behalf of all workers. No worker would then be compelled to pay anything to a union and the dissenting workers’ First Amendment rights would not be violated.

  • July 1, 2014
    Guest Post

    by Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service Law, George Washington University Law School

    Why would you pay for something if you can get it for free?  The obvious answer is that you wouldn’t.  And after this week’s decision in Harris v. Quinn (No. 11-681), if you work as a homecare provider in Illinois, you can get all the pay raises and benefits increases that the union negotiates without having to pay a penny to support those efforts.  According to the 5-4 opinion written by Justice Samuel Alito, the First Amendment guarantees that outcome.  Here’s how he got there, and where he went off the proper constitutional track.

    In about half the states, employees who work for state agencies (including teachers) have the right to join unions, and those unions have the right to bargain with the state or its agencies over terms and conditions of work. Depending on both the state and the job, the union may be able to negotiate over pay and benefits, as well as working conditions. Many such contracts have grievances procedures in which the union represents workers in an effort to resolve disputes with the employer.  Negotiating and implementing contracts cost money, and to pay for those services, states authorize unions, where a majority of the workforce agrees to establish one, to charge all employees for those services directly related to collective bargaining.  In exchange, the union is under a legal obligation to fairly represent all individuals covered by the collective bargaining agreement. The right to organize for public employees is governed by state law, and there is another system for private sector employees that generally operates in the same way, albeit with some significant differences that were not relevant in Harris.

    The workers in Harris were paid by the state, but worked for Medicaid recipients who needed a variety of home care services. Under Illinois law, the recipients choose the person who would provide those services (many of whom are family members) and direct and control his or her assignments. There were many other distinctions between those workers and the typical state employee, but Illinois decided that it would be willing to allow those workers to form a union to bargain with the state over wages and benefits, if a majority of those who performed such services voted for a union, which would mean the mandatory payment of monthly dues to support its work.