Articles Posted in Constitutional Law

On February 26, 2018, Texas¹ filed a complaint for declaratory and injunctive relief against the United States, the U.S. Department of Health and Human Services, and the U.S. Internal Revenue Service alleging that the Patient Protection and Affordable Care Act (a/k/a the Affordable Care Act or Obamacare) was unconstitutional. Six years earlier, in National Federation of Independent Business v. Sebelius, the U.S. Supreme Court upheld the individual mandate in the Affordable Care Act, which “require[d] most Americans to maintain ‘minimum essential’ health insurance coverage,” as a valid exercise of Congressional power under the Taxing Clause. The plaintiffs now argue that since Congress passed and President Trump signed into law the Tax Cuts and Jobs Act of 2017, which eliminated the tax penalty of the Affordable Care Act, the individual mandate is no longer a valid exercise of Congressional power under the Taxing Clause since removal of the tax penalty disconnects the individual mandate from the collection of taxes.

Plaintiffs further argued that without the individual mandate, the rest of the Affordable Care Act must fall since the individual mandate underpins the guaranteed-issue and community-rating requirements of the Affordable Care Act. The guaranteed-issue requirement prohibits health plans from denying coverage to applicants with pre-existing conditions. The community-rating requirement prohibits health insurers from charging higher premiums to persons with pre-existing conditions.

Last week, President Donald Trump issued an Executive Order entitled Protecting the Nation From Foreign Terrorist Entry Into the United States, Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017).¹ This order included several controversial provisions that may alter American immigration policy.

First, paragraph 3(c) of the Executive Order suspended immigrant and nonimmigrant entry into the United States from countries referred to in 8 U.S.C. § 1187(a)(12) for 90 days “to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals.” The countries affected by this suspension include

• Iraq and Syria;

Today, the U.S. Supreme Court handed down its decision in the much-anticipated case Burwell v. Hobby Lobby Stores, Inc. (formerly Sebelius v. Hobby Lobby Stores, Inc., consolidated with Conestoga Wood Specialties Corp. v. Burwell and Autocam Corp. v. Burwell).

In a 5-4 opinion by Justice Samuel Alito, the Court held that the Religious Freedom Restoration Act (RFRA) permits a closely held for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by the federal Patient Protection and Affordable Care Act of 2010 (ACA), based on the religious objections of the corporation’s owners.

Here is some commentary tracking the progress of these cases before the Court’s ruling:

• Vikram David Amar and Alan Brownstein, Consistency in the Treatment of Religious Liberty Claims: Hobby Lobby and Town of Greece Viewed Side by Side (February 28, 2014)
• Vikram David Amar and Alan Brownstein, The Narrow (and Proper) Way for the Court to Rule in Hobby Lobby’s Favor (April 11, 2014)
• Michael Dorf, Supreme Court Oral Argument Shows How Religious Freedom Claims Have Become Ideologically Charged (March 26, 2014)
• Marci Hamilton, Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible (July 11, 2013)
• Marci Hamilton, The Insatiable Demand for Extreme Religious Liberty Under the RFRAs, Part I: Why Hobby Lobby Falls Outside RFRA’s Protections (March 6, 2014)
• Marci Hamilton, The Lessons of the New Mississippi RFRA that Shed Light on the Hobby Lobby and Conestoga Wood Cases Pending at the Supreme Court (May 15, 2014)
• Marci Hamilton, What RFRA Has Wrought: Hobby Lobby, Onionhead, and the Perils of Religious Triumphalism (June 16, 2014)

Below are the relevant dockets and opinions in the lower courts:

Hobby Lobby

• U.S. District Court for the Western District of Oklahoma
  • Docket: Hobby Lobby Stores Inc. v. Sebelius
  • Opinion: Hobby Lobby Stores Inc. v. Sebelius (November 19, 2012)
• U.S. Court of Appeals for the Tenth Circuit
  • Docket: Hobby Lobby Stores Inc. v. Sebelius
  • Opinion: Hobby Lobby Stores Inc. v. Sebelius (June 27, 2013)

Conestoga Wood

• U.S. District Court for the Eastern District of Pennsylvania
  • Docket: Conestoga Wood Specialties Corp. v. Sebelius
  • Opinion: Conestoga Wood Specialties Corp. v. Sebelius (January 11, 2013)
• U.S. Court of Appeals for the Third Circuit
• • Docket: Conestoga Wood Specialties Corp. v. Sec’y U.S. Dep’t of Health & Human Servs.
  • Opinion: Conestoga Wood Specialties Corp. v. Sec’y U.S. Dep’t of Health & Human Servs. (July 26, 2013)

Here are some resources for the consolidated cases before the U.S. Supreme Court:

• Oral Argument and Transcript (via SupremeCourt.gov)
• Merit and Amicus Briefs Filed (via American Bar Association)
• Opinion: Burwell v. Hobby Lobby Stores, Inc.

May is Asian/Pacific American Heritage Month. In his proclamation, President Obama cited the accomplishments of Asian Americans, Native Hawaiians and Pacific Islanders and acknowledged the difficulties that members of this community have faced both historically and in the present.

Let’s take a short trip through our nation’s case law to look at some of these difficulties. Your lessons in school might not have given you a complete picture on American history.

1. Korematsu v. United States

Photo Credit: National Park Service.

Fred Korematsu, an American citizen of Japanese descent, challenged his conviction for remaining in San Leandro, California, in violation of Exclusion Order No. 34, which required all persons of Japanese ancestry to evacuate from a designated geographical area. The Supreme Court stated that “legal restrictions which curtail the civil rights of a single racial group” must be subject to the most rigid scrutiny. “Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.”

To justify the exclusion order, the Court cited the “definite and close relationship” between the exclusion order and “the prevention of espionage and sabotage.” The Court acknowledged the overinclusive nature of the exclusion order, noting that most of the people impacted by the exclusion order were “no doubt . . . loyal to this country.” However, the Court was not prepared to question the military’s judgment that “it was impossible to bring about an immediate segregation of the disloyal from the loyal” and upheld the exclusion order.

In dissent, Justice Frank Murphy acknowledged the deference that must be accorded to the military in its prosecution of the war. Nevertheless, the order by the military to remove all persons of Japanese ancestry from the Pacific Coast was not reasonably related to its claimed goal of preventing sabotage and espionage because the reasons offered in support of the exclusion order were based not on expert military judgment, but on “misinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices.”

Even if “some disloyal persons of Japanese descent on the Pacific Coast [] did all in their power to aid their ancestral land,” “to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that, under our system of law, individual guilt is the sole basis for deprivation of rights.”

See Korematsu v. United States, 323 U.S. 214 (1944)

Courthouse News Service won a ruling in the Ninth Circuit recently for access to court filings. CNS went to federal court last year to challenge the Ventura County Superior Court policy of delaying the release of court opinions.  A U.S. district court judge dismissed the case, finding that it was not a First Amendment issue, but a claim that involved sensitive state information, and that the federal court should abstain. The Ninth Circuit overturned that ruling and remanded the case to the federal district court for a decision on the merits.

Courthouse News Service is a periodical that covers courthouses all over the United States. They send reporters into courts every day to review the filings and write about the newsworthy cases. Most courts in California allow reporters daily access to the filings, but Ventura County has a policy that delays reporter access until “official processing” is completed, at which point the cases are no longer breaking news.

The Ninth Circuit found a clear First Amendment interest in immediate reporter access to the opinions. In the opinion, Judge Wardlaw wrote, “CNS’s First Amendment right of access claim falls within the general rule against abstaining under Pullman in First Amendment cases. CNS’s right of access claim implicates the same fundamental First Amendment interests as a free expression claim, and it equally commands the respect and attention of the federal courts.” We have the featured the trial and appellate court filings on Justia Dockets. You can read the full opinion and summary on Justia, as well.

A 1961 Illinois eavesdropping law “likely violates the First Amendment’s free speech-speech and free-press guarantees,” a federal appeals court ruled.

The 69-page decision by the U.S. Court of Appeals for the Seventh Circuit blocks enforcement of an Illinois criminal law that made it a felony to make audio recordings of Chicago police without receiving their consent.

What prompted the lawsuit?

In an outrageous misunderstanding of students’ off-campus free speech rights, an Indiana school district expelled a high school senior just three months shy of his graduation for tweeting an F-bomb from home at 2:30 AM.

Austin Carroll says that he sent the offending F-bomb tweet from home, from his own computer. He concedes that he agrees with the district that his tweet was inappropriate, but says he “just did it to be funny.” The Garrett-Keyser-Butler Community School District (the ‘District’) was not amused, claiming that he tweeted from school.

The school says that it reportedly learned about Austin’s tweet when he was online in school.

Even if the tweet was made off campus, it still doesn’t appear to have violated the school district’s “Responsible Use Policy” (the ‘Policy’) that is largely focused on integrating technology into classroom instruction, and making students pay for repairing damaged school notebooks and iPads (read it below).

Continental Appliances, Inc., a California manufacturer of a gas wall heater sold at Lowe’s, sued the unknown poster of a YouTube video on Friday for claiming that its product creates “an imminent danger of fire and serious injury” because of “uncertain fuel settings.” (see below)

The lawsuit appears likely to fail, however.

Here’s why.

The Federal Communications Commission (‘FCC’) ruled today that anti-abortion activist Randall Terry (inset, right) failed to show “that he is a legally qualified” presidential candidate entitled to “reasonable” broadcast TV access in Illinois.

Even if he was, the FCC concluded, Chicago NBC affilate WMAQ did not act unreasonably when it refused to sell him air time to run ads on Super Bowl Sunday (Read the decision below).

A lawsuit filed by current and former employees of the U.S. Food and Drug Administration charges that the agency accessed and spied on their personal e-mail accounts after scientists and doctors alerted Congress and the media that certain radiation-emitting computer detection devices may not be safe or effective.

The lawsuit filed by scientists and doctors charges that nine FDA employees (the “FDA Nine”) had their private, personal, password protected email accounts on Google and Yahoo secretly recorded by the the U.S. Department of Health and Human Services, the government agency to which the FDA reports.

Why? Because the FDA scientists and doctors engaged in whistleblower-protected conduct by voicing concerns about radiation-induced cancer risks allegedly involving medical devices that the agency regulated.