IMAGE: Portrait of Supreme Court Plaintiff and LGBT rights advocate Gavin Grimm, who was protesting in front of The White House. Title IX Protest 2/22/17. Geoff Livingston / Flickr
By David G. Savage, Tribune Washington Bureau (TNS)
WASHINGTON — As the nation heads into a presidential election year, the Supreme Court is set to decide a half-dozen politically charged cases in 2016 on such topics as abortion, affirmative action, contraceptives and immigration.
In several cases, conservatives are hoping the high court will shift current law to the right or block President Barack Obama’s policies, while liberals are defending the status quo.
But with justices closely split along ideological lines, the cases are likely to yield a series of 5-4 decisions and make clear the next president’s appointees could tip the law sharply to the right or left.
Here are the major cases due for decision by June 2016.
Abortion: The court will decide whether Texas can enforce two regulations that would force about three-fourths of the state’s abortion clinics to shut down.
One measure requires clinics to use only doctors with admitting privileges at a nearby hospital. A second requires abortion facilities to match the standards of an outpatient surgical center.
The first question before the court is whether these regulations will protect the health of women — as state lawmakers assert — or hinder reproductive care “by drastically reducing access to safe and legal abortion” in large parts of Texas, as abortion-rights advocates contend.
In the background is a larger question about the nature of abortion rights set out in the Roe vs. Wade decision: Is it a constitutional right that trumps state regulations that may interfere with a woman’s choice, or is it a limited right subject to restriction? The case of Whole Woman’s Health vs. Cole will be argued March 2.
Affirmative action: The court’s conservatives believe the Constitution and the civil rights laws forbid schools and colleges from admitting students based on their race, and they would like to strike down affirmative action policies that favor some applicants over others based on their race or ethnicity.
Justice Anthony M. Kennedy, seen as the swing vote, has agreed with conservatives in the past and condemned admissions policies that set “numerical goals indistinguishable from quotas.” But he has also refused to shut down all affirmative action.
In December, the court heard Fisher vs. University of Texas for a second time to decide whether the school’s admission policy is constitutional.
Union fees: The court could deal a severe blow to the union movement in a case from California. The justices will hear a free-speech challenge to pro-union laws in more than 20 states that require all public employees pay a “fair share fee” to their union, even if they are opposed to the union and refuse to join.
Rebecca Friedrichs, an Orange County teacher, sued the California Teachers Association, alleging the forced fees violate her rights under the First Amendment. Friedrichs vs. CTA will be argued Jan. 11.
Voting districts: Voters elect representatives to Congress, state legislatures and city councils in districts that are drawn to represent equal numbers of people. But that could change.
The court is considering an appeal from Texas that argues these districts should represent roughly equal numbers of eligible voters, rather than using the current system, which counts all people, including children, immigrants and prisoners.
The appeal relies on the “one person, one vote” rule established in the 1960s. If the justices agree in the case of Evenwel vs. Abbott, the ruling could have a major effect in states such as California, Florida, New York and Illinois because they have large populations of immigrants.
Contraceptives: The court will decide its fourth case on Obama’s healthcare law, and the second involving a religious-freedom challenge to a regulation that requires employers to include no-cost coverage for contraceptives in their health insurance policies.
Churches are exempt from this requirement. Under a separate accommodation, religious nonprofits, such as Catholic charities or the University of Notre Dame, need not provide nor pay for the coverage, but they must notify the government of their religious objection.
In a series of lawsuits, Catholic bishops and Protestant colleges contend the accommodation did not go far enough. The Catholic leaders said they would be “complicit in sin” if they made the required notification because doing so would “trigger” a process for providing the disputed contraceptives.
Obama’s lawyers say the mere signing of a notification does not “substantially burden a person’s exercise of religion,” quoting the 1993 federal law on religious liberty. Nearly all of the U.S. appeals courts rejected the challenges, but the high court agreed to hear seven appeals from religious entities. They were consolidated into a single case, Zubik vs. Burwell, due to be heard in late March.
Immigration: The fate of Obama’s broadest effort to shield immigrants from deportation rests with the justices. His lawyers are appealing rulings by a judge in Texas and the 5th Circuit Court in New Orleans, which blocked Obama’s latest immigration action from taking effect.
It would have shielded as many as 5 million immigrants who have lived in the country illegally for at least five years and have a child who is a citizen or legal resident. Those who come forward and qualify would be offered work permits.
If the justices agree in the next few weeks to hear the case of United States vs. Texas, it will be a major test of the president’s power to change immigration policy without seeking approval from Congress. But if the justices turn down the appeal, Obama’s action will likely remain on hold until he leaves office.
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Photo: Abigail Fisher, the plaintiff in Fisher v. Texas, speaks outside the U.S. Supreme Court in Washington December 9, 2015. REUTERS/Kevin Lamarque
By David G. Savage, Tribune Washington Bureau (TNS)
WASHINGTON — The future of affirmative action at public universities appeared in some doubt Wednesday as the Supreme Court justices debated for a second time whether to strike down a race-based admissions policy at the University of Texas.
It was clear that the court’s conservatives, including Chief Justice John G. Roberts Jr., believe that using affirmative action in admission decisions is unneeded and unconstitutional.
When a university lawyer spoke of the importance of classroom diversity, Roberts asked, “What unique perspective does a minority student bring to a physics class?”
In the past, when the high court has upheld affirmative action, it did so with the understanding that it was a “temporary” measure, the chief justice said. “When do you think your program will be done?” he asked.
The liberals, led by Justice Sonia Sotomayor, spent much of the hour arguing in defense of the university’s policy.
Sotomayor, the court’s first Latina, grew up in the Bronx and said she had benefited from affirmative action when she was admitted to Princeton University.
“I fear something. I do have a worry” that the court is on the verge of shutting down affirmative action at state universities across the nation, she said.
By contrast, Justice Antonin Scalia questioned whether affirmative action truly benefits black students.
“There are some who contend it does not benefit African-Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less advanced school, a slower-track school, where they do well,” he said.
Scalia was referring to the so-called “mismatch theory” originally set out by University of California, Los Angeles law professor Richard Sander, which contends that black students sometimes fare badly if they are admitted to a top-tier law school. The same students would have done better had they enrolled in another law school that was somewhat less demanding, the theory holds.
Scalia said he was not convinced the University of Texas needed more black students. “Maybe it ought to have fewer,” he said. “I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.”
Washington attorney Gregory Garre, the lawyer for the university, who served as solicitor general, the government’s top appellate lawyer, under President George W. Bush, said the court had rejected that thinking when it upheld limited use of affirmative action in a case from Michigan in 2003.
“I think what experience shows, at Texas, California and Michigan, that now is not the time and this is not the case to roll back student body diversity in America,” he said.
Justice Anthony M. Kennedy, who almost surely holds the deciding vote, voiced frustration because university lawyers could not quantify in detail what role race plays in Texas in determining which students are admitted.
“We’re just arguing the same case again,” Kennedy said at one point, referring to the fact that the court had heard the same case two years ago and sent it back to a lower court for closer review.
The Texas case is complicated because the state has a law guaranteeing admission to the top 10 percent of students in each of its more than 1,000 high schools based on their grades only, with no consideration to race. Under that policy — which now accounts for about 75 percent of all admissions to the Austin campus — about one-third were Latino or African-American in recent years.
The dispute arose over a supplemental program that currently accounts for the remaining 25 percent of admissions.
A decade ago, when the top-10 percent policy was providing far fewer minority admissions than it is today, the university decided to use race as one of several factors to choose additional freshmen for the class. It’s this policy that was challenged in a lawsuit by Abigail Fisher, a white applicant who was turned down in 2008.
Two years ago, Kennedy wrote an opinion that sent the case back to a lower court to probe whether the university could show that it was “necessary to use race” to achieve diversity on campus.
The justices heard no clear answer to that question during Wednesday’s argument. At one point, Kennedy said he might favor sending the case back for a third hearing in the lower court.
The Texas case looks unlikely to yield a broad ruling for or against affirmative action because of the unique nature of the state’s top-10 percent law.
However, if Kennedy were to endorse that approach as a viable “race-neutral” means to achieve diversity, it might force other top state universities to consider a similar policy.
Since 1978, the high court has been closely split on whether colleges and universities may use race as a factor in deciding who is admitted. That year, in the famous Bakke case, the court struck down a quota at the University of California Medical School, but said in a separate opinion by Justice Lewis Powell that colleges and universities could use a race as a “plus factor” in order to achieve a diverse class of students.
Powell’s short, separate opinion has set the terms of debate ever since.
In 2003, the court was split again. The justices that year struck down a University of Michigan policy that gives extra points to all minority students, but by a 5-4 vote, they upheld a Michigan law school policy that considered race as a plus factor for minority applicants. The majority opinion in that case, by now-retired Justice Sandra Day O’Connor, suggested that the policy might be appropriate for another 25 years or so.
The court’s opinion in that case described the policy it upheld as a “holistic review,” since the school considered the student’s entire record, including his or her race.
Kennedy dissented in that case, however.
In the wake of the 2003 decision, the University of Texas adopted the “holistic review” policy that is at issue now. The state’s top-10 percent law was slowly increasing the numbers of Latino and black students at Austin, but university officials said they needed to give an extra edge to other minority students to achieve diversity on campus.
In particular, they wanted to admit black and Latino students who had very good records at the state’s top performing high schools, but nonetheless failed to graduate in the top 10 percent of their class. They also sought minority students from outside Texas.
The need was apparent, said Garre, the university’s lawyer. If black students made up only about 4 percent of the freshmen class, as would have happened solely with the top-10 percent rule, they faced “glaring racial isolation” on campus, he said.
He argued that the university’s affirmative action policy should be upheld because it was small and carefully targeted — and nearly identical to what the high court had approved in 2003.
Meanwhile, the attorney for Fisher said the policy should be struck down because it was not needed to achieve diversity. The top-10 percent plan had already accomplished that, he said.
The university has not “shown any necessity to use race,” attorney Bert Rein said.
The outcome almost certainly turns on Kennedy’s vote. Because the Obama administration filed an early brief on the university’s side when Elena Kagan was the U.S. solicitor general, now-Justice Kagan sat out the case. If Kennedy votes with the three liberals, the court will be split 4-4, which would affirm the lower court’s ruling although without a majority opinion.
During his long career on the court, Kennedy has never voted to uphold a race-based policy. Still, he has not joined with more conservative justices in a ruling that would flatly forbid affirmative action.
If the court writes an opinion in Fisher vs. University of Texas, it is not likely to be handed down until the late spring.
©2015 Tribune Co. Distributed by Tribune Content Agency, LLC.
Photo: Derek Key via Flickr
By David G. Savage, Tribune Washington Bureau (TNS)
WASHINGTON — The Supreme Court on Friday set the stage for its most important pronouncement on abortion in two decades, agreeing to hear a dispute over efforts by some conservative states to regulate the procedure.
The justices accepted an appeal from abortion-rights advocates who are challenging a Texas law that imposed new medical regulations that would in effective shut down three-fourths of the state’s clinics that perform abortions.
The decision is likely to be handed down in June, just as the presidential campaign moves into high gear.
Under a 2-year-old law that has not been fully enforced, Texas clinics that perform abortions must meet the standards of an outpatient surgical center and have doctors who are granted admitting privileges at a nearby hospital.
At issue is whether these are reasonable regulations designed to protect the health of women or costly and unnecessary rules adopted to close down as many abortion facilities as possible.
In 1992, the high court said states may regulate abortion as long as they do not put an “undue burden” on women seeking to end a pregnancy. But since then, justices have not defined exactly what that means.
In recent years, Republican-led states have adopted a series of stringent medical regulations that apply only to abortion facilities. Lower courts have split over whether these laws violate the right to abortion set in the Roe vs. Wade decision of 1973.
The new case before the high court, Whole Woman’s Health vs. Cole, poses two major questions, one medical and one legal.
The medical question is whether the Texas regulations would “raise the standard of care and ensure the health and safety of all abortion patients,” as the state’s lawyer has said.
Abortion-rights advocates maintain that the regulations “will jeopardize women’s health by drastically reducing access to safe and legal abortion services throughout the state.” Outside the state’s five major cities — Houston, Dallas, Fort Worth, Austin and San Antonio — women will not have an abortion facility within easy driving distance, they said.
About 17 percent of the women in the huge state “would face travel distances of 150 miles or more,” the 5th U.S. Circuit Court of Appeals said in upholding the regulations.
Women in the west Texas town of Lubbock would face a 300-mile one-way drive to reach an abortion clinic if the law goes into effect, abortion-rights lawyers said Friday.
Four major medical groups, including the American Medical Association and the American College of Obstetricians and Gynecologists, filed a brief telling the high court that the Texas regulations “do nothing to protect the health and safety of women.” Early abortions rarely result in complications, they said.
“From 2009 through 2013 (when the new law was adopted), there were zero reported deaths in 360,059 abortions performed in Texas,” the medical groups reported. They noted that other “generally riskier” medical procedures are not regulated as stringently. “For example, no law requires colonoscopies or liposuction to be performed in an ambulatory surgical center or hospital, and the mortality of both procedures is higher than abortion,” they said.
The legal question concerns the standard for deciding whether state abortion regulations are constitutional.
The 5th Circuit Court in New Orleans said judges should not “second guess” legislatures and must uphold a disputed law as long as it is “rationally related to a legitimate state interest. … Medical uncertainty underlying a statute is for resolution by legislatures, not the courts.”
In their appeal, lawyers for the Center for Reproductive Rights said that standard would render the right to abortion a “hollow protection” for pregnant women. They said the state should have to show some evidence its regulations would improve the health of women and would not put a “substantial obstacle” before women seeking an abortion.
They also noted that the 7th Circuit Court in Chicago had blocked a Wisconsin law that was similar to the Texas measure.
“Today the Supreme Court took an important step toward restoring the constitutional rights of millions of women, which Texas politicians have spent years dismantling through deceptive laws and regulatory red tape,” said Nancy Northup, president of the center. “We are confident the court will recognize that these laws are a sham and stop these political attacks on women’s rights, dignity, and access to safe, legal essential health care.”
The announcement Friday was no surprise, because the justices intervened in June to block the Texas law from taking effect. But the court’s order came on a 5-4 vote, with Chief Justice John G. Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito dissenting.
Abortion is perhaps the most divisive controversy the justices face, and the upcoming case will again put the spotlight on Justice Anthony M. Kennedy.
A moderate conservative appointed by President Ronald Reagan in 1988, he was expected at first to join with fellow conservatives such as Justice Antonin Scalia in voting to overturn Roe vs. Wade.
But in 1992, he surprised many, including his colleagues, when he cast the crucial fifth vote to preserve the right to abortion in a case called Planned Parenthood vs. Casey. He joined with Justices Sandra Day O’Connor and David Souter in writing a compromise opinion that allowed states to regulate — but not to prohibit — abortion. Two other Republican appointees — Justices John Paul Stevens and Harry Blackmun — joined with them to form the majority.
Now, Kennedy is the only justice left who signed the 1992 opinion.
In the court’s only significant abortion cases since then, Kennedy joined with the court’s conservatives to uphold the laws against so-called “partial-birth abortions,” which occur late in a pregnancy.
Defenders of the Texas law now under scrutiny describe it as the kind of reasonable regulation that Kennedy and the court called for 1992. Texas Attorney General Ken Paxton said in the statement that the “common sense measures” will “ensure Texas women are not subject to substandard conditions at abortion facilities. The advancement of the abortion industry’s bottom line shouldn’t take precedent over women’s health.”
Melissa Conway, a Houston-based spokeswoman for Texas Right to Life, said abortion facilities “are not being forced to close. They’re choosing not to stay open because they do not want to invest the money in improving conditions.”
Texas had at least 40 abortion providers when the law was passed. Currently, 18 remain open, and if the law takes full effect, only nine would remain open in a state with 5.5 million women of reproductive age, abortion-rights lawyers said.
Heather Busby, executive director of NARAL Pro-Choice Texas, said the impact of the facility closings would fall on low-income women. “If you get pregnant and you’re poor and you can’t miss work, what are you going to do” if the nearest clinic is more than 250 miles away, she asked. “We’re creating a reproductive health system where only those who have money and the connections to access it will still be able to.”
Mississippi has a similar law on the books that would force the closure of the state’s only remaining licensed abortion clinic. But federal judges have blocked the law from taking effect, and the high court has yet to act on a pending appeal from the state. That case probably will be held until the Texas case is decided.
The court told the lawyers it probably will hear arguments in the case early in March.
Photo: Recent laws intended to prevent women from accessing abortion clinics will be heard by the Supreme Court, with decisions likely to be handed in June. Timothy Krause/Flickr
By David G. Savage, Tribune Washington Bureau (TNS)
WASHINGTON — Hillary Rodham Clinton’s use of a private email server while secretary of State may have been risky and politically unwise, but many experts in national security law predict it will not lead to criminal charges, based on what is known so far of her handling of classified government material.
That’s because even a misdemeanor charge for mishandling classified information would require proof that Clinton knew she was keeping government secrets at “an unauthorized location.”
Clinton has repeatedly said that she did not knowingly send or receive emails that were marked classified, and that her use of a personal email server — while not “the best choice” — was not illegal or unauthorized.
But these lawyers also caution that much remains unknown about Clinton’s unusual email system and they say the Democratic front-runner remains vulnerable, both politically and legally, because of the ongoing FBI inquiry and a newly energized Republican-led House committee investigating the 2012 Benghazi attack that killed the U.S. ambassador to Libya and three others.
That investigation appeared to be going nowhere, but it gained new focus in late February when GOP staffers learned for the first time why they had received only a handful of State Department emails to or from the secretary of State. They had not been told until then that Clinton had not used the State Department’s email server and instead relied exclusively on a personal system.
A few weeks later, after the House committee subpoenaed all of Clinton’s records, it learned that about 32,000 of her 62,230 emails had been erased from the server at the end of last year. In a March 27 letter, her attorney David Kendall said that her personal lawyers had gone through all the emails from her four years in office and the “Secretary chose not to keep her non-record personal emails.”
He said her work-related emails were given to the State Department and the server was erased. “Thus, there are no hdr22@clintonemail.com emails from Secretary Clinton’s tenure … on the server for any review, even if such review were appropriate or legally authorized,” he said.
The statement spurred talk on the political right of obstruction of justice and destroying federal records, both of which are crimes. After the Enron scandal and revelations that audits had been shredded, Congress in 2002 adopted a broad obstruction of justice law.
It is a crime to “knowingly alter, destroy … conceal or cover up … any record or document” with the aim of impeding an investigation by “any department or agency” of the U.S. government. The law applies even to those who act in “contemplation” of a potential investigation.
Former Attorney General Michael Mukasey, who served under President George W. Bush, wrote in the Wall Street Journal that Clinton could be ensnared by that law if she “wiped out emails” that were sought by the congressional committee. However, other prosecutors say the law has not been used in relation to investigations by House and Senate committees.
The Federal Records Act says a U.S. official may not “unlawfully conceal, remove (or) destroy” any official record in his or her custody. Clinton has said personal emails on her private server were not federal records.
Still, her emails are now a top focus of the Benghazi inquiry. Clinton will take time out from her presidential campaign on Oct. 22 to testify before the committee. And last week, as if to highlight the danger for Clinton, Bryan Pagliano, a computer specialist who helped set up Clinton’s email server, announced through his lawyer he is refusing to testify based on his Fifth Amendment right against self-incrimination.
Democrats say the House investigation has become purely partisan and political. Rep. Adam B. Schiff, D-Calif., said last week that the inquiry should end. “It’s clear that the Select Committee’s leadership no longer has any interest in investigating the attack in Benghazi, except for how Secretary Clinton’s email server may be used as fodder against the likely Democratic nominee for president,” he said.
But lawyers who represent clients charged with mishandling classified information say Clinton brought on the problems she now faces.
“I’m still dumbfounded by how this happened,” said Washington attorney Mark Zaid, referring to Clinton’s use of a personal email system. “Didn’t someone ask: Why are you doing this? At the level of the secretary of State, it would be impossible not to have classified information sent through the system. There’s a level of arrogance here that says she was beyond all the rules.”
Clinton has noted that some of her predecessors, including Colin L. Powell, used personal email accounts.
There is no evidence Clinton sought to disclose or leak national secrets — the most serious offense. On the contrary, Clinton would not have publicly disclosed any of her emails had she not been forced to do so by other laws, such as the Freedom of Information Act.
Nonetheless, the law on mishandling classified information makes it illegal to “knowingly remove” classified information “with the intent to retain (it) at an unauthorized location.” And after leaving office, Clinton hired a company called Platte River Networks in Denver to retain the server with all of her State Department emails.
Two former CIA directors ran afoul of that law for moving classified information to an unauthorized location. John M. Deutch faced a possible criminal charge in 2000 for keeping classified information on his home computer, and former CIA Director Gen. David H. Petraeus agreed to plead guilty in April and pay a $100,000 fine for having given several notebooks containing highly classified information to a woman who was writing his biography.
But unlike in Clinton’s case, Deutch and Petraeus admitted they knew they had secret information that should have been kept secure. So far all of the Clinton emails in question were not marked as classified at the time she sent or received them, and only later were designated as classified.
Anne Tompkins, a former U.S. attorney in North Carolina who prosecuted Petraeus, disagreed with Mukasey’s assessment that the former secretary of State could be charged with mishandling classified information. “Petraeus knowingly engaged in unlawful conduct,” she wrote in a USA Today opinion piece last week, but Clinton said she did not believe she had sent or received classified information by email.
In late July, two inspectors general — both Barack Obama appointees — said they were troubled to learn that classified information that “should have been marked and handled at the SECRET level” had been on Clinton’s email server and had been publicly released this year.
“This classified information should never have been transmitted via an unclassified personal system,” they said. They referred the matter to intelligence agencies and to the FBI, but added it was not “a criminal referral.”
Stewart Baker, who served as top national security lawyer under Presidents Bill Clinton and George W. Bush, said it does not appear based on what is known now that Hillary Clinton committed a crime when she used a private email server.
“It was a bad idea, a serious lapse in judgment, but that’s not the same as saying it leads to criminal liability,” he said. On the other hand, the continuing inquiries could turn up damaging evidence, he said, including the possibility that foreign governments tapped into her emails.
“This investigation has a way to go, and it will keep drip, drip, dripping away for a long time,” he said.
(c)2015 Tribune Co. Distributed by Tribune Content Agency, LLC.
Democratic presidential candidate Hillary Clinton leaves after talking about her strategy for rural America during a campaign stop at the FFA Enrichment Center at the Des Moines Area Community College in Ankeny, Iowa , August 26, 2015. REUTERS/Scott Morgan
By David G. Savage, Tribune Washington Bureau (TNS)
WASHINGTON — The Supreme Court on Monday upheld the kind of independent redistricting commissions used in Arizona and California to prevent partisan gerrymandering.
The 5-4 decision bolsters an increasingly popular political reform adopted by voters in California and other states to transfer authority to draw districts from state legislators to a nonpartisan citizen panel.
Ruth Bader Ginsburg said the Constitution gives states broad leeway to decide on their election rules, and states like Arizona and California may rely on “direct democracy” that allows the voters to decide.
“The people of Arizona turned to the initiative to curb the practice of gerrymandering,” she said, and nothing in the Constitution forbids them from making that decision.
The four most conservatives justices dissented.
In dissent, Chief Justice John Roberts accused the majority of performing a “magic trick” by interpreting the Constitution to allow the people, not the legislature, to set the rules for electing members of Congress.
He agreed with Arizona’s Republican legislature that it should have the exclusive power to decide on districts for members of Congress. Justices Antonin Scalia, Clarence Thomas and Samuel Alito agreed.
The decision turned on a somewhat obscure provision in the Constitution. It says: “The Times, Places and Manners of holding Elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof, but the Congress may at any time by Law make or alter such regulations.”
Arizona’s voters passed a state constitutional amendment in 2000 to remove the redistricting authority from the state legislature and to turn it over to a new Arizona Independent Redistricting Commission.
Three years ago, Arizona’s Republican lawmakers sued in federal court seeking to overturn the decision of the voters. They said the Constitution reserved this power to “the Legislature thereof,” and this authority may not be taken away.
Defenders of the commission argued the state’s law-making authority can rest with the people when they pass propositions.
The case of Arizona State Legislature vs. Arizona Independent Redistricting Commission called on the high court to resolve a dispute between two parts of the same state’s governing structure.
If the court had struck down the independent commissions, it would have threatened numerous congressional districts in Arizona and California that were drawn by nonpartisan citizen commissions.
In addition, five other states have semi-independent commissions that could have been affected by the ruling: Washington, Idaho, Montana, Hawaii, and New Jersey.
The decision is a victory for reformers who saw independent commissions as the best weapon to stop politicians from manipulating electoral district lines to protect incumbents or political fiefdoms. Three former California governors — Pete Wilson, George Deukmejian, and Arnold Schwarzenegger — filed a friend-of-the court brief urging the justices to uphold the state’s independent panel.
With 53 members, the California delegation in the House of Representatives, 38 Democrats and 15 Republicans, is the largest in Congress.
In 2008, Californians approved a ballot measure to shift the redistricting power for state Legislature seats to a citizens commission. Two years later, voters approved a second measure to extend its authority to congressional districts.
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Photo: North Charleston via Flickr
By David G. Savage, Tribune Washington Bureau (TNS)
WASHINGTON — The Supreme Court faces a decision soon on whether to dive back into the contentious issue of abortion and consider allowing states to enforce new, stricter laws, including one from Mississippi that would close that state’s only licensed abortion clinic.
Since 2010, Republican-led states have passed an array of abortion-related laws. Some limit the time period during which women may obtain an abortion. Others set new restrictions for clinics, doctors or the drugs that induce early abortions.
Most of the new laws have been blocked or struck down by federal judges. On Friday, the 9th Circuit Court of Appeals struck down an Idaho law on that banned abortions after 20 weeks. And until now, the Supreme Court has refused to hear states’ appeals to such cases.
For years, the justices have steered clear of most abortion cases. A decision to turn down the latest appeals, from Mississippi and North Carolina, would be a victory for abortion rights advocates. Abortion rights groups have argued that strict regulations imposed by conservative states were designed not to improve healthcare, but to deter and prevent pregnant women from getting legal abortions.
But attorneys for Mississippi and North Carolina have asked the justices to consider reviving their laws.
“It is high time for this court to revisit the issue” of abortion, Mississippi Attorney General Jim Hood told the justices in a brief filed in early May.
Hood is defending a 2012 law that requires all physicians at an abortion clinic to have admitting privileges at a nearby hospital, even if none of those hospitals will extend privileges to doctors who perform abortions.
The Jackson Women’s Health Organization, the only abortion provider in Mississippi, had three doctors, only one of whom had the required admitting privileges.
A federal judge blocked the law from taking effect, and last year the 5th Circuit Court of Appeals in New Orleans agreed.
The state said its abortion restrictions did not put an “undue burden” on women from Mississippi because they could cross state lines and obtain abortions in Memphis, Tenn., or Baton Rouge and New Orleans in Louisiana. But the appeals court judges rejected that argument.
“Mississippi may not shift its obligations to respect the established constitutional rights of its citizens to another state,” Judge E. Grady Jolly wrote in a 2-1 ruling.
North Carolina Attorney General Roy Cooper is asking the Supreme Court to revive his state’s law that would require doctors, before performing an abortion, to display and describe an ultrasound image of the developing fetus, even if the pregnant woman “averts her eyes” and tries to cover her ears.
Lawyers for the Center for Reproductive Rights, who sued on behalf of several North Carolina doctors, called the law the “most extreme” of several so-called “informed consent” statutes passed in recent years.
In December, the 4th Circuit Court in Richmond, in a 3-0 decision, upheld a judge’s order blocking enforcement on First Amendment grounds.
The government may not force a doctor to serve as “the mouthpiece for the state’s message,” the judges wrote. The law “compelled speech” by doctors that is “ideological in intent and in kind…. The clear and conceded purpose of the requirement is to support the state’s pro-life position,” Judge J. Harvie Wilkinson III, a leading conservative jurist, wrote in his opinion blocking the state from enforcing the law.
At the Supreme Court, justices could announce as soon as Monday whether they will hear the Mississippi case. A decision on whether to hear North Carolina’s appeal should come by mid-June.
Attorneys for the states that have passed new restrictions say the court should clarify the law governing abortions. In 1992, in its last sweeping abortion ruling, the high court said states may regulate the procedures so long as their rules do not put an “undue burden” on women seeking to end their pregnancies.
Lawyers for Mississippi called that a “vague and amorphous standard” which has not provided “meaningful guidance” to lawmakers or judges.
(c)2015 Tribune Co. Distributed by Tribune Content Agency, LLC.
Photo: Fibonacci Blue via Flickr
By David G. Savage, Tribune Washington Bureau (TNS)
WASHINGTON — Gay rights lawyers went to the Supreme Court hoping to find a majority of justices ready to support a historic ruling that would declare same-sex couples have an equal right to marry nationwide.
Instead during Tuesday’s arguments, they heard words of hesitation that suggested the outcome is less certain than many expected.
The most important and surprising doubts came almost immediately from Justice Anthony M. Kennedy, who openly wondered whether the court should intervene in an institution so deeply rooted in history and religion.
“The word that keeps coming back to me is millennia,” Kennedy said in the opening minutes of a 2 1/2-hour argument, prompting looks of concern from gay rights attorneys.
The definition of marriage being limited to a man and a woman “has been with us for millennia,” he said. “And it’s very difficult for the court to say, ‘Oh, well, we know better.’ ”
Kennedy’s apparent struggle over what is perhaps the court’s most important civil rights question in a generation was welcomed by state attorneys opposing gay marriage and by his four fellow conservative justices. They emphasized that marriage has been limited throughout American history to a man and a woman, and that the issue is better left to voters at the state level, rather than to federal judges.
Despite his comments, Kennedy — who will probably have the deciding vote — may still rule in favor of marriage rights for same-sex couples when the court announces its decision in June. Kennedy in the past had similarly voiced doubts during an argument, only to discard them when the time came to make a decision.
More important, Kennedy has written the court’s three important rulings in favor of gay rights, including an opinion two years ago that spoke glowingly of the “equal dignity” of same-sex couples who had married. It was that decision that led to a string of rulings by federal courts over the last year that invalidated states’ same-sex marriage bans as unconstitutional.
To the relief of gay rights advocates, Kennedy later in Tuesday’s argument returned to some of his more familiar themes about equality and at one point chided a Michigan state lawyer for insisting that marriage was chiefly about biology and procreation, and not recognizing the dignity derived from being in a committed couple.
“Same-sex couples say, ‘Of course, we understand the nobility and sacredness of the marriage. We know we can’t procreate, but we want the other attributes of it in order to show that we too have a dignity that can be fulfilled,’ ” Kennedy said.
With an estimated 250,000 children that are being raised by same-sex couples across the nation, Kennedy also questioned the harm same-sex marriage bans have on such families.
Kennedy’s colleagues seemed less ambivalent about the question before them.
The court’s four most conservative justices, including Chief Justice John G. Roberts Jr., left little doubt they would vote to uphold the state bans on same-sex marriage. Roberts said gay rights proponents were seeking to redefine marriage.
“You’re not seeking to join the institution,” he told attorney Mary Bonauto, who is representing two Michigan nurses who have been unable to marry and jointly adopt the four abandoned foster children they are raising. “You’re seeking to change what the institution is.”
Roberts also warned that a ruling from the high court at this time would prematurely shut down the national debate over the issue.
But Bonauto emphasized that the rights of gays and lesbians were being compromised in many states and that it was unfair to tell gay couples to “wait and see.”
The four liberal justices said they saw no valid legal justification to deny marriage to same-sex couples, questioning how such recognition would harm heterosexual marriage.
“We are not taking anyone’s liberty away” by allowing gay couples to marry, said Justice Sonia Sotomayor. They attacked the argument that marriage is intended chiefly to encourage child-rearing, and noted that many heterosexual spouses do not have children and a growing number of same-sex couples do, either through adoption or surrogacy.
Justice Stephen G. Breyer said the court had repeatedly ruled that Americans have a fundamental right to marry, and he questioned whether “purely religious reasons” can justify a ban on same-sex marriages.
“There is one group of people whom (some states) won’t open marriage to,” Breyer said. “So they have no possibility to participate in that fundamental liberty. That is people of the same sex who wish to marry. And so we ask, why? And the answer we get is, ‘Well, people have always done it.’ You know, you could have answered that one the same way we talk about racial segregation.”
U.S. Solicitor General Donald Verrilli, representing the Obama administration, made a brief but powerful argument in favor of legalizing gay marriage.
“In a world in which gay and lesbian couples live openly as our neighbors, they raise their children side by side with the rest of us, they contribute fully as members of the community, it is simply untenable, untenable to suggest they can be denied the right to equal participation” in marriage, he said.
They should not “be required to wait until the majority decides it is ready to treat gays and lesbian people as equals. They deserve the equal protection of the laws, and they deserve it now,” he said.
The debate over gay marriage was largely unthinkable just a decade ago, when only one state permitted gay marriage, public opinion was solidly against it and Republicans used state referendums banning same-sex unions to bolster conservative voter turnout in the 2004 presidential race.
Today, public opinion polls show a majority of Americans support gay marriage and it is legal in 37 states because of court rulings or state laws.
Aware of the social and political sensitivities, the court had attempted to move slowly on the sensitive social issue. Presented with the chance to rule on gay marriage in 2013, the majority instead took a smaller step, striking down part of the federal Defense of Marriage Act and declining to declare same-sex marriage a constitutional right.
The 2013 decision, written by Kennedy, fueled a string of court challenges over gay marriage, mostly decided in favor of allowing same-sex unions. When the 6th U.S. Circuit Court of Appeals bucked the trend by upholding statewide bans against gay marriage, the high court was compelled to revisit the question.
The justices will meet Friday to discuss the cases and cast their votes. They must decide whether to uphold gay marriage bans in four states — Michigan, Ohio, Kentucky, and Tennessee — or strike them down as unconstitutional, thereby legalizing gay marriage nationwide.
A third option is before them as well. They could rule that there is no constitutional right to gay marriage, but that states must recognize the same-sex marriages of other states, even if they ban the practice themselves. Such a ruling would make gay marriage widely available, without establishing it as a constitutional right.
That was the focus on the second part of the argument, but none of the justices sounded attracted to that middle-ground position.
(c)2015 Tribune Co., Distributed by Tribune Content Agency, LLC.
Pro and anti-gay marriage demonstrators rally outside the U.S. Supreme Court as it hears arguments on the question of same-sex marriage on Tuesday, April 28, 2015, in Washington, D.C. (Brian Cahn/Zuma Press/TNS)
By David G. Savage, Los Angeles Times (TNS)
WASHINGTON — Mary Bonauto, the Boston lawyer who won the first gay marriage rulings in Massachusetts and Vermont, will lead the argument before the Supreme Court in favor of a constitutional right to same-sex marriage nationwide.
Bonauto has been seen by gay-rights advocates as the attorney who deserves the most credit for winning marriage equality in the courts.
She was selected by the attorneys and the couples from four states whose cases will be heard on April 28.
“The road that we’ve all traveled to get here has been built by so many people who believe that marriage is a fundamental right,” she said in a statement issued Tuesday. “Same-sex couples should not be excluded from the joy, the security, and the full citizenship signified by that institution.”
Bonauto will be representing April DeBoer and Jayne Rowse, two nurses from Michigan who are raising four adopted children. She will argue that the 14th Amendment’s guarantee of liberty and equal protection of the laws requires the state to issue them a marriage license.
A second attorney, Douglas Hallward-Driemeier, will argue on behalf of plaintiffs in Ohio and Tennessee, addressing the question of whether the 14th Amendment requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.
Bonauto was a civil rights lawyer for the Gay and Lesbian Defenders and Advocates in Boston in the 1990s when she began the legal drive for equal treatment for gay couples.
She won a ruling from the Vermont Supreme Court in 1999, which led to the first “civil unions” law, and she won the first gay-marriage decision before the Massachusetts Supreme Judicial Court in 2003.
Then, after thousands of gay couples were married in New England, she led the challenge to the federal Defense of Marriage Act, which denied equal benefits to these married couples.
The Supreme Court struck down that provision in 2013, triggering a series of lower court rulings in favor of gay marriage across the nation.
Earlier this month, four groups of lawyers representing various plaintiffs in the current cases, asked the Supreme Court to divide up the time for arguments equally among four lawyers, each speaking for 15 minutes, plus one additional attorney representing the U.S. government. All wanted the opportunity to appear before the court in such a landmark case and they could not agree on who should take the lead.
The court put out a statement Tuesday asking the groups to settle on only two attorneys, which is what they did.
Photo: Courtesy of the John D. & Catherine T. MacArthur Foundation via Wikimedia Commons
By David G. Savage, Tribune Washington Bureau (TNS)
WASHINGTON — The Supreme Court barred doctors, dentists, and druggists Tuesday from going to court to fight cutbacks in Medicaid payments.
The justices’ 5-4 decision in a case from Idaho held that the Medicaid Act, which offers health care to low-income people, does not authorize medical providers to go to court if they believe a state’s reimbursements are too low.
Tuesday’s ruling reverses a decision from the U.S. Ninth Circuit Court of Appeals in San Francisco, which has repeatedly blocked California from making cutbacks in its Medicaid payments.
It is not clear what effect the ruling will have on the Medicaid program because significant cutbacks are not pending.
But the California Legislature in the past has adopted provisions to reduce government spending by lowering the payments for Medicaid, a program that is operated jointly by the federal government and the states.
Before these cutbacks could go into effect, lawyers for the doctors, dentists and pharmacists sued, contending that the reduced rates violated the Medicaid Act. The legislation says the payments to providers should be “consistent with efficiency, economy, and quality of care” and should be “sufficient to enlist enough providers” to serve the local population.
Judges cited this provision and ruled that California’s proposed cutbacks would break the promise that health care would be available.
However, the high court in the Idaho case said the Medicaid Act did not give patients the right to sue in court and that it did not authorize judges to intervene on behalf of doctors and other providers.
“We hold that Medicaid providers have no right to seek injunctive relief” in court, said Justice Antonin Scalia, writing for the majority.
He said that Medicaid authorizes the secretary of Health and Human Services to ensure that the states are complying with the law. If doctors or dentists are unhappy with the payment rates in California or elsewhere, they should take their complaints to the agency in Washington, he said.
“We think that Congress wanted to make the agency remedy that it provided exclusive,” he said in the case of Armstrong v. Exceptional Child Center. Chief Justice John G. Roberts and Justices Clarence Thomas and Samuel Alito agreed entirely.
Justice Stephen G. Breyer agreed on the outcome and provided the fifth vote. “Congress decided to vest broad discretion in the (federal health) agency to interpret and enforce” the Medicaid Act, he said.
In dissent, Justice Sonia Sotomayor faulted the majority for ruling that federal judges may not enforce this part of federal law.
“The court’s error today has very real consequences,” she wrote. It will allow states to “set reimbursement rates so low that providers (are) unwilling to furnish a covered service for those who need it.” Justices Anthony Kennedy, Ruth Bader Ginsburg, and Elena Kagan joined in her dissent.
Though the case decided Tuesday arose in Idaho, it was based on the same Ninth Circuit ruling that figured prominently in the series of California cases.
California Attorney General Kamala D. Harris had urged the court to block lawsuits over Medicaid rates.
Since 2008, injunctions issued by judges “have cost California more than $1.5 billion by precluding the Department of Health Care Services from implementing cost reductions that the federal government determined are perfectly consistent with federal law,” she said in a friend-of-the-court brief.
But the American Medical Association, the American Dental Association, and the American Hospital Association all had urged the court to protect Medicaid from state cutbacks.
Photo: Pete Jordan via Flickr
By David G. Savage, Tribune Washington Bureau (TNS)
WASHINGTON — Twenty-five years in the making, a new nationwide rule is set to take effect this spring that will sharply restrict coal and oil-fired power plants from releasing mercury, arsenic and other hazardous pollutants into the air and, eventually, into rivers and lakes.
But the rule faces a final and formidable hurdle when the U.S. Supreme Court hears arguments Wednesday from lawyers for the coal and power industries, who say it may be “the most costly rule” ever adopted under the Clean Air Act.
They will be joined by lawyers for Michigan and 19 other Republican-led states, who call the rule on mercury and other air pollutants a regulatory “overreach” by the Obama administration and the Environmental Protection Agency.
The combined case of Michigan vs. EPA poses yet another test of whether the conservative-leaning high court will defer to far-reaching regulations issued by the Obama administration.
Since the Reagan era of the 1980s, the high court has said judges should uphold regulations so long as they reflect a reasonable interpretation of the law. But the court’s conservatives have been increasingly skeptical of President Barack Obama’s regulations.
Last month, the justices sounded closely split on whether to uphold a 2012 tax regulation issued under the Affordable Care Act that allows government subsidies to be paid to enrollees in every state, and not just in the dozen or so that run their own insurance exchanges.
If the court rejects that regulation, it could badly undercut Obama’s health care law and cut off subsidies for millions of low- and middle-income Americans.
The court may face a similar decision in the months ahead on whether to uphold Obama’s executive action on immigration. The action would offer work permits and a shield from deportation to several million immigrants who live in the country illegally. A federal judge in Texas has temporarily blocked it, saying the president overstepped his regulatory authority.
Supporters of the new toxics rule say it is vital to ensuring public health. Mercury is highly toxic and builds up in the food chain. It is particularly dangerous for pregnant women and developing fetuses. Other newly restricted pollutants are believed to trigger asthma attacks and are blamed for several thousand early deaths each year.
Michigan Attorney General Bill Schuette said the rule would “result in rate increases for citizens across the country and threatens the reliability of the electricity grid by forcing the closure of many power plants.”
Environmental lawyers were surprised when the court agreed to hear the industry challenge to the EPA’s mercury rule, which was adopted in 2012 and upheld last year by the U.S. Court of Appeals in Washington.
“It was very hard to understand why they are hearing this,” said Jim Pew, a lawyer for Earthjustice, a nonprofit environmental law firm based in San Francisco. “I don’t think it’s a close case.” He thinks the EPA has shown the restrictions are badly needed.
Congress passed the Clean Air Act in 1970, but lawmakers later became troubled by the slow pace of removing hazardous pollutants from the air. In 1990, they amended the law and told the EPA to study more than 180 toxic substances, including mercury, arsenic and several acid gases. If these substances were shown to harm human health and could be removed from the air, the law said, then the EPA “shall regulate” major sources of these pollutants where it is “appropriate and necessary.”
After a lengthy study, the EPA in the final year of the Clinton administration said new regulation of the coal and oil-fired power plants was appropriate because they were the largest source by far of mercury and other hazardous pollutants.
But in 2005, the EPA under the George W. Bush administration backed off and said power plants could escape strict regulation if pollution were reduced through other means.
Several downwind states sued, and an appeals court ruled in 2008 that the EPA’s retreat violated the law.
That ruling put the matter in the hands of the incoming Obama administration. The EPA proposed new power plant regulations in 2011. They are to take full effect next month, although some power plants have been granted an extension to comply.
The rule sets emissions standards for about 600 electric power plants across the nation. The new standards will force about a 90 percent reduction in emissions of mercury and other toxic metals and gases.
Although nearly every state is affected, the rule will hit hardest in states of the upper Midwest and the South, which rely heavily on coal to produce electricity.
In their appeal, lawyers for the coal industry and the Republican states say the EPA ignored the $10 billion-a-year compliance cost, which would include refurbishing or closing old power plants. Supporters of the rule estimate that it will create more than $37 billion a year in savings when considering the cost of early deaths and lost work days because of asthma.
Meanwhile, attorneys for 17 states, mostly led by Democrats, and several cities joined in support of the EPA.
They include California and New York, as well as Chicago and Baltimore. They said their states have regulated power plants, but their residents are still exposed to mercury and other toxic substances from the air and water.
Environmentalists are dismayed that the mercury rule has become caught up in the partisan divide.
“Clean air is a core American value — in red, purple and blue states,” said Vickie Patton, a lawyer for the Environmental Defense Fund in Colorado. “These protections should have been put in place years ago.”
Photo: Robert S. Donovan via Flickr
By David G. Savage, Tribune Washington Bureau (TNS)
WASHINGTON — The future of California’s effort to entrust a nonpartisan citizens’ panel with redrawing the state’s congressional districts appeared in serious doubt Monday after arguments in the Supreme Court.
The court’s conservative justices voiced agreement with a lawyer for Arizona’s Republican Legislature who insisted the Constitution reserved redistricting power exclusively for elected state lawmakers.
Voters in Arizona and California have approved ballot measures in recent years that shifted redistricting authority from politicians to independent commissions in an effort to curtail creation of voting districts with boundaries that clearly favor a single political party or individual.
The case heard Monday raises the question of whether gerrymandering, as such partisan redistricting is known, is protected by the Constitution.
Arguing on behalf of the Arizona lawmakers, former Solicitor General Paul Clement said voters may not “cut out” a state’s lawmakers and give the power to “an unelected and unaccountable commission.”
If the court’s majority agrees — which appeared likely based on the justices’ responses — the ruling would strike down numerous congressional districts in Arizona and California that were drawn by nonpartisan citizens commissions.
It also would also deal a setback to reformers who see independent commissions as the best weapon to stop politicians from manipulating electoral district lines to protect incumbents or political fiefdoms.
California elects 53 members to the House of Representatives. The delegation, currently 38 Democrats and 15 Republicans, is the largest in Congress.
California’s voters approved the Voters First Act in 2008 to create the Citizens Redistricting Commission for state Legislature seats. Two years later, voters approved a second measure to extend its authority to congressional districts.
Leading Republicans in California, including former Governors Pete Wilson, George Deukmejian and Arnold Schwarzenegger, strongly backed the commission plan. The Republican leaders filed a friend-of-the-court brief to the Supreme Court highlighting the history of Democratic dominance in Sacramento and urging the court to uphold Arizona’s commission.
Districts drawn by California’s commission left Democrats with a solid hold on the congressional delegation. But the redrawn districts also forced two senior House Democrats to fight for a seat from the San Fernando Valley in 2012. In that race, Rep. Brad Sherman defeated veteran Rep. Howard Berman.
Voters in Arizona adopted a ballot measure in 2000 to create a five-member independent commission for redistricting.
The state elects nine members to the House, currently five Republicans and four Democrats. Several of the seats are closely contested under lines drawn by the state commission.
A Supreme Court ruling in the Arizona case should not prevent independent panels from drawing districts for state legislators who serve in Sacramento or Phoenix. Clement argued that state legislators ultimately thus reflect popular views.
“If these commissions are as effective as my friends on the other side say, then we will have nonpartisan districts that will elect the state house … and these perfectly representative bodies will be the ones to take care of congressional redistricting,” he said.
Lawyers on both sides agreed that states may rely on “advisory” commissions to help draw election maps so long as legislators have the final word.
Reformers argue that giving the power to political operatives is the real problem. A party in control of the statehouse can redraw districts to ensure safe seats for its members.
The practice has a long political lineage. The term gerrymandering dates back to 1812, when a supposedly salamander-shaped state senate district in Massachusetts was created to help elect supporters of Gov. Elbridge Gerry.
The case heard Monday will hinge on whether the court decides that the Constitution reserves redistricting solely to state Legislatures.
Clement pointed to a clause that says, “The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.”
Justice Antonin Scalia said this refers to elected lawmakers only. Arizona, by contrast, “is giving this power to an unelected body of five people,” he said.
But the liberal justices said the word “legislature” can be understood broadly to refer to the state’s lawmaking process.
For example, a governor may veto a bill passed by the Legislature. And in California and Arizona, the state constitution makes clear that the voters may change the law through initiatives.
Justices Elena Kagan and Sonia Sotomayor said the court should defer to the states on how they divide up power, rather than impose a rule from Washington.
With the justices split along ideological lines, the outcome probably depends on Justice Anthony M. Kennedy, a Sacramento native who is very familiar with California politics.
Kennedy asked skeptical questions of attorneys for both sides. But at one point, he said the constitutional history strongly suggests the word “legislature” referred only to the elected lawmakers.
If the court agrees with Clement, it would affect other election laws passed through ballot measures.
“This case could be really significant” by raising legal doubts about all manner of election rules, said Justin Levitt, an election-law expert at Loyola Law School in Los Angeles.
The justices will rule in the case of Arizona State Legislature vs. Arizona Redistricting Commission by the summer.
Photo: Matt H. Wade via Wikimedia Commons
By David G. Savage, Tribune Washington Bureau (TNS)
WASHINGTON — With President Barack Obama’s health care law once again facing possible unraveling at the hands of the Supreme Court, the administration and its allies have developed a novel argument tailor-made to appeal to conservative justices: states’ rights.
The high court is set to hear arguments March 4 to determine the legality of Affordable Care Act subsidies for approximately 7 million Americans who receive coverage from federally run health insurance marketplaces, also known as exchanges.
Lawyers for the Competitive Enterprise Institute, a small libertarian group in Washington, are challenging the subsidies, pointing to a passage in the law that says such tax credits may go to those who buy insurance on an “Exchange established by the state.”
Only 13 states fully operate their own online health care marketplaces.
The other 37 rely on the HealthCare.gov site run by the federal government. If the justices rule for the challengers, consumers in most or all of those states would lose their subsidies, making health coverage unaffordable for most of them.
The Obama administration and health care advocates are arguing that the law, when read as a whole, makes clear that the subsidies were intended to be available nationwide for low- and moderate-income people, not just those in certain states.
But if the justices doubt that reading, supporters of the law have a legal backup plan that highlights the “clear notice” rule for states. It says that when Congress passes a new law and seeks cooperation from the states, it must not withhold important information.
The principle was spelled out in a 1981 opinion by then-Justice William H. Rehnquist, the same year John G. Roberts Jr. served as one of his law clerks.
Liberals hope it will persuade Roberts, now chief justice, and some of his colleagues to uphold the tax subsidies in the 37 states that rely on the federal exchange.
This focus on the federal-state balance of power appears targeted at Roberts, whose vote was crucial in upholding the law’s constitutionality in 2012, and Justice Anthony M. Kennedy, a longtime champion of the states who has cited the “clear notice” principle in the past.
Supporters of the law say that even if Congress meant to restrict subsidies to marketplaces created by the state, no one warned state officials that relying on the federal version would deprive their residents of millions of dollars in insurance subsidies.
Late last month, lawyers for 22 states, including Virginia, Illinois, Pennsylvania and North Carolina, told the justices they were blindsided by the claim that federal subsidies might be cut off because they failed to establish state marketplaces.
“Surprising states with a dramatic hidden consequence” violates a basic principle of fair dealing between Washington and the states, the state lawyers said in the court brief. Congress “does not hide elephants in mouse holes,” they added, quoting a comment by Justice Antonin Scalia in a previous case.
Oklahoma and five other states sided with opponents of the law. Their lawyers said the “plain text” bars subsidies for their residents, since they did not establish state marketplaces.
California, New York, Connecticut and Maryland, which are among the 13 states that fully operate their own marketplaces, have endorsed the broad view that tax subsidies should be available nationwide.
Of the 37 states using the federal health care site, a few have either technically established their own marketplaces or have partnership agreements with the federal government. The justices could choose to treat those states differently than the rest, allowing their residents to keep subsidies.
But supporters of the health care law say they are more hopeful now of prevailing entirely in the high court, in part because of the “clear notice” argument. Washington lawyer Walter Dellinger, a solicitor general under President Bill Clinton, said this federalism or states’ rights argument is likely to get the attention of several justices.
“If you are Congress, you don’t impose a penalty on the states and then hide it in an obscure provision involving the tax code that no one noticed at the time,” he said. This strongly suggests, he said, that Congress did not intend to punish states that decided to rely on a federal marketplace.
Other provisions of the law carry the same message, supporters say. A section titled “State flexibility” says that states shall establish an exchange so residents can compare prices for insurance and buy policies, and that if states elect not to do so, “the secretary (of Health and Human Services) shall establish and operate such exchange” within the state.
Citing this passage, officials from the 22 states said they understood this to mean they could run an exchange on their own, or use the federal version, but the choice would have no effect on their residents.
Attorneys for the Obama administration argue that the term “such exchange” means that the federally run exchange would simply function in place of one created by the state, with no differences in operation.
Defenders of the law recognize they face a struggle in winning over the court’s conservatives, who have been skeptical of Obama’s signature health care program.
Four justices — Scalia, Kennedy, Clarence Thomas and Samuel A. Alito Jr. — voted to strike down the entire law in 2012. If Roberts joins them this time, they could deal it a severe blow.
In 2012, a majority led by Roberts rendered a split decision. They upheld the mandate to buy insurance, but they also said states may refuse to expand free health insurance under the Medicaid program.
In a second decision last year, they ruled by a 5-4 vote that corporate employers citing their religious faith may refuse to pay to cover certain contraceptives for their female employees.
The latest case began with what some called a “glitch” or “wording flaw” in the long and complicated bill. Jonathan Adler, a libertarian law professor at Case Western Reserve University who helped launch the suit, argued the law should be interpreted based on its exact words, not the grand aims of its Democratic sponsors.
“The proper question is: What did Congress say? And the words ‘established by the state’ are pretty clear,” he said. “People didn’t focus on this in 2010 or 2011 because no one took seriously that so many states would say ‘no.'”
Ilya Shapiro, a lawyer at the libertarian CATO Institute, says the blame lies with the Democrats who wrote the law.
“This is a consequence of the frenzy to get something passed on a razor-thin partisan vote,” he said. “No one knew what was in it. Maybe the states’ lawyers missed it, or they were misled by the feds.”
Administration officials were surprised when about three dozen states — both red and blue — chose not to establish marketplaces of their own. They were also alarmed when the Supreme Court voted Nov. 7 to take up the current case, King vs. Burwell, just three days after Republicans won full control of Congress.
Challengers won a round last summer when a U.S. appeals court panel in Washington, in a 2-1 vote, interpreted the law as limiting subsidies to the 13 states that fully run their own marketplaces. On the same day, an appellate court in Virginia reached the opposition conclusion, ruling that nationwide subsidies were allowed.
In recent weeks, a new round of legal briefs from the administration, state officials, former members of Congress and leading law professors have argued that there was no glitch and that the law, read as a whole, provides insurance subsidies to eligible Americans regardless of where they live.
“They put the text of the statute front and center, and it shows the absurdity of the plaintiffs’ argument,” said Elizabeth Wydra, attorney for the Constitutional Accountability Center, a liberal group that supports the law. “When (the justices) read the briefs, I think it would be hard for them to rule against the government, even though they may not like the law.”
For instance, the law’s supporters say, one provision permits subsidies for any applicable taxpayer whose income is less than 400 percent of the poverty rate, without making reference to whether the marketplace was established by the state or federal government.
Another provision defines a “qualified individual” as someone who “resides in the state that established the exchange.”
The provisions show that the federally run exchange was intended to serve as the de facto state exchange, U.S. Solicitor Gen. Donald Verrilli Jr. said in a court brief. Otherwise, if the second provision were read in isolation, it would imply that a federal exchange “would literally have no customers” since no potential applicants would live in a “state that established the exchange.”
Why, he asked, would states have been told by Congress that they had the flexibility to rely on the federal exchange, only to learn later none of their residents could actually use it?
Photo: LeDawna’s Pics via Flickr
By David G. Savage, Tribune Washington Bureau (TNS)
WASHINGTON — Supreme Court justices gave a mostly skeptical hearing Monday to a California woman who wants the State Department to explain why it barred her Afghan husband from joining her in this country.
The government argued it has an undisputed “power to exclude aliens” from entering the United States, and “there is no right to judicial review” of a decision to deny a visa to such a person, said Deputy Solicitor General Edwin Kneedler.
During questions and comments, the court’s conservative justices appeared to agree with the government’s strict position.
They said they were wary of establishing new rights that might encourage spouses, parents or children to go to court whenever one of their close relatives is barred from entering the United States.
The case of Kerry vs. Din asks whether a U.S. citizen has a right to object after his or her spouse is turned down for a visa.
Fauzia Din, an Aghan native and a naturalized U.S. citizen, married an Afghan man in 2006 and sought to have him join her in this country.
But the State Department rejected his application for a visa in 2009, citing a provision of the law that bars foreigners connected to “terrorist activities.”
She denied her husband had any connection to terrorists, winning a partial victory from the 9th Circuit Court of Appeals last year. Its judges said that as a married woman, she had a right to demand an explanation for the government’s decision to deny a visa to her husband.
Her position won some support during Monday’s argument. Justices Sonia Sotomayor and Stephen Breyer said they were troubled by the possibility the government had made a mistake.
“That’s what we were told after 9/11,” Sotomayor said. The government said then it had good reasons for arresting and holding foreigners, only to admit later they made a mistake in some instances, she said.
Kneedler insisted the State Department double-checked before denying a visa, and that officials need not explain their reasons for excluding someone.
“No matter what?” Breyer asked. What if the consular official denied the visa for racist reasons or because he thought husbands and wives should not live together? Kneedler denied such a possibility.
But when Los Angeles attorney Mark Haddad rose to argue Din’s case, Chief Justice John Roberts and several of his colleagues said they did not want to extend new rights to relatives to contest immigration decisions.
If wives have a constitutional right to go to court in such cases, they may also have a right to object when their imprisoned husbands are sent to a facility that is far away, said Justice Samuel Alito.
Justice Anthony Kennedy also said that since such decisions involve national security and intelligence gathering, he was reluctant to air them court.
Photo: OZinOH via Flickr
By David G. Savage, Tribune Washington Bureau (TNS)
WASHINGTON — Seeing an opening to weaken public-sector unions, a conservative group is asking the Supreme Court to strike down laws in California, Illinois and about 20 other states that require teachers and other government employees to pay union fees, even if they are personally opposed.
Suing on behalf of an Orange County, Calif., elementary school teacher, attorney Michael Carvin called the case “a challenge to the largest regime of state-compelled speech for public employees in the nation,” according to his appeal filed at the court last week.
The case targets the California Teachers Association and the National Education Association. Plaintiff Rebecca Friedrichs and several other California teachers say they object to paying about $650 a year to the union.
“I am not a member of the union, and I’m opposed to forced fees and forced unionism,” she said in an interview.
Her case could pose a major threat to public-sector unions whose clout grew in the 1970s after the Supreme Court upheld laws requiring all employees who benefit from collective bargaining to contribute to unions. Although teachers and other public workers may refuse to pay dues used to support a union’s political activities, they can still be forced to pay a “fair share” fee that covers operation costs.
But twice in the past three years, Justice Samuel Alito has written opinions dealing defeats to public unions and hinting that the court may be prepared to strike down those forced fees. The “bedrock principle” of the First Amendment, Alito said last year, is that “no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”
Alito spoke for a 5-4 majority last year that said Illinois may not force state-funded home health care aides to pay union fees. In 2012, he rebuked a service employees union in California for collecting a special election-year fee from workers who objected.
Conservative activists took note. “When we read Alito’s opinion in Knox, we saw it as an invitation to bring the First Amendment back to the Supreme Court,” said Terry Pell, president of the Center for Individual Rights, a conservative legal advocacy group. His group funded the Friedrichs suit in federal court in California, fully expecting to lose there. A federal judge and the 9th U.S. Circuit Court of Appeals ruled for the CTA and rejected the challenge.
But the aim was to get the issue before the Supreme Court in hopes a conservative majority would overturn the 1977 decision in Abood v. Detroit Board of Education, which upheld “fair share” fees.
Pell is convinced that “compulsory union dues” will not survive. “The free rights of teachers are being violated every day by powerful and politically partisan unions,” he said. “This case is about restoring the basic constitutional rights of teachers and other public employees to decide for themselves whether to support the unions’ agenda.”
Laura P. Juran, acting chief counsel for the CTA, said she will urge the court this month to turn down the appeal. “This is no surprise. They have said from the start they want to go to the Supreme Court and overturn decades of settled law,” she said.
She said the required fees are justified because the union has a legal duty to represent all the employees, whether or not they are members. “We have to process grievances for everyone, and everyone benefits from a wage increase,” she said. “That’s the reasoning underlying Abood.”
At least 24 states have “right to work” laws, which forbid forced-fee arrangements for unions. They include all the Southern states, most of the Great Plains, and more recently, Republican-controlled states in the North such as Michigan and Indiana. The Democratic-dominated states in the North and West have maintained pro-union laws.
Justice Elena Kagan argued that since this issue is being fought in the political arena, the high court should stand aside. She wrote a sharp dissent last year for the court’s liberal bloc and jabbed at Alito for pressing the issue.
“Readers of today’s opinion will know that Abood does not rank as one of the majority’s top-ten list of favorite precedents…and that majority could not resist from saying (and saying and saying) so,” she wrote. “The good news out of this case is clear: The majority declined the radical request” to overturn Abood.
Her dissent suggested the court’s five conservatives had come close to barring forced fees for public employees but stopped just short of doing so. It is not clear why. Chief Justice John G. Roberts has been wary of overturning precedents, and Justice Antonin Scalia has backed the idea that unions have a legal duty to represent all the employees. If so, he said, the “fair share” fees make sense.
The appeal in the California case should settle the matter. If the court turns it down this spring, it will signal that union fees have survived.
Catherine Fisk, a labor law exper t at the University of California, Irvine, Law School, said that if the court strikes down the forced-fee law, unions would have to try harder to win the support of workers. “They need to convince the employees that paying dues is worth it,” she said.
She said the court is likely to deny the appeal in the teachers case. “I think there may have been five justices to overturn Abood (last year), and they lost a vote,” she said. If so, the conservative justices probably would not vote to revisit the issue.
But she said anti-union groups such as the National Right to Work Committee and the Center for Individual Rights have had a major effect. “They bring one case after another, year after year, chipping away at labor law. Over time, they’ve made a dramatic change,” she said.
AFP Photo/Jim Watson
By David G. Savage, Tribune Washington Bureau (TNS)
WASHINGTON — The Supreme Court cast doubt Monday on the future of old union contracts that had promised lifetime health benefits for retired workers and their families.
In a case seen as a victory for corporate America, the justices ruled that those promises are not “vested” rights unless they are spelled out in “clear and express language.” And if they are not, they may be canceled when a new contract takes effect, the court said.
In the unanimous opinion, Justice Clarence Thomas chided lower-court judges who upheld the retiree benefits, citing “traditional principle that courts should not construe ambiguous writings to create lifetime promises.”
In decades past, union contracts often included a promise from the employer to pay for health care, even after the worker’s retirement. But as health care costs rose and companies changed hands, new owners objected to paying the benefits far into the future. They argued that the contracts applied only to the term of the agreements and not beyond.
The U.S. Chamber of Commerce and the National Association of Manufacturers backed an appeal from the owners of a West Virginia polyester plant who objected to paying benefits to workers who had retired in 1996.
Their contract, negotiated by the United Steelworkers Union, promised a “full company contribution” to their health benefits. But in 2006, M&G Polymers, the new owners of the plant, said the retirees must contribute to the cost of their health benefits.
A group of retirees sued and won before the 6th U.S. Circuit Court of Appeals in Cincinnati. Its judges said the negotiated benefits were a “form of delayed compensation.”
The Supreme Court agreed to hear the company’s appeal, and on Monday set aside the lower-court ruling that favored the retired workers.
Thomas told the lower court to take another look at the contract and to do so without “placing a thumb on the scale in favor of vested retired benefits.” He noted that federal law protects promised pensions, but it does not require employers to provide future benefits for health care.
In a concurring opinion, Justice Ruth Bader Ginsburg agreed that “ordinary contract principles” apply in such disputes, but she left open the prospect that the old agreement could be read to promise benefits in the future. Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan signed the concurring opinion.
Photo: Matt H. Wade via Wikimedia Commons
By David G. Savage, Tribune Washington Bureau (TNS)
WASHINGTON — When Justice Anthony M. Kennedy spoke for the Supreme Court in 2013 in striking down part of a federal law that denied benefits to legally married gay couples, he cited two reasons: states’ rights and equal rights.
Throughout American history, Kennedy said, states had “full power over marriage and divorce,” including “the definition and regulation of marriage.” He referred to the act of Congress as a federal intrusion on state power that discriminated against gay couples and denied the equality of same-sex marriages.
His opinion for a 5-4 majority in United States vs. Windsor striking down a key provision of the Defense of Marriage Act may have been read as endorsing a two-track approach: one that provided full rights for legally married gay couples while preserving a state’s right to decide on the definition of marriage.
Now, after the justices agreed Friday to take up the issue again, Kennedy and the other justices must reconcile what they left unresolved two years ago. Is marriage for gays and lesbians a matter of equal rights and individual liberty guaranteed by the Constitution? Or is it a matter left to the states?
Despite its ambiguity, Kennedy’s opinion in Windsor was heralded as a major victory for the “marriage equality” movement, reflecting a powerful social change that had swept across the nation. It came on the same day that the high court, with Kennedy in dissent, dismissed an appeal from California, which had the effect of restoring gay marriages in the state.
Since then, federal judges from Utah to Florida have read the Windsor opinion as implicitly endorsing a constitutional right for same-sex couples to marry.
At the same time, defenders of state laws that limit marriage to a man and a woman also cited Kennedy’s words in their appeals.
In his appeal in DeBoer vs. Snyder, one of four cases that will be heard in April, Michigan Attorney General Bill Schuette said the Windsor opinion had reaffirmed the view that the definition of marriage was, in Kennedy’s words, “within the authority and realm of the separate states.”
He also cited Kennedy’s opinion last year that upheld the Michigan ballot measure barring race-based affirmative action at the state’s universities. He noted that Michigan’s voters in 2004 had adopted a ballot measure limiting marriage to a man and a woman and argued that this decision, like affirmative action, should rest with the people.
If this year’s decision on gay marriage turned only on court precedents and legal logic, it would look to be a toss-up. The justices, all of whom were appointed after the Roe vs. Wade abortion decision, have been wary of forcing major changes in social policy. They also believe in deferring to the states.
But Kennedy and four of his colleagues have given signals in recent years that they are inclined to lean in favor of gay couples seeking to marry. Kennedy has said in several opinions that the government may not “demean” loving couples who are gay.
He has also taken special note of children who are being raised by same-sex couples. During arguments in the California case, he said it would be hurtful to tens of thousands of children if their same-sex parents were denied the right to marry.
The Michigan gay marriage case was brought by two nurses raising four adopted children who were abandoned by their mothers. The judge who heard their case said he could not justify the state’s decision to discriminate against such a committed couple.
And Kennedy, unlike Justice Antonin Scalia, also believes the law must evolve and change based on “a new perspective and a new insight,” as he said in the Windsor case. In decades past, legal marriages for gay couples might have struck many people as unusual, he said, but not today.
The best clue to the outcome may be seen in the court’s recent actions. Last summer, the justices had appeals from five states with bans on same-sex marriage that had been struck down by federal judges. State officials from red states such as Utah, Oklahoma and Indiana were anxious to defend their laws at the high court. And it takes the votes of only four justices to hear such an appeal.
But the court denied all the appeals in October, clearing the way for gay marriages to begin in at least 35 states. That action was seen as a signal that the ultimate decision had been made, even if the justices had yet to formulate an opinion to explain the result.
Photo: Matt H. Wade via Wikimedia Commons
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