Gay Marriage, Obamacare, Facebook, Fish: SCOTUS Is Back!

They're back!

They're back!

They’re back!

Does “shredding” a fish violate Federal white-collar criminal laws? Is Amtrak making laws in violation of the Constitution? Do your Facebook posts put you at risk of prosecution?

The first Monday in October has arrived, the date Chief Justice John Roberts will gavel the U.S. Supreme Court into a new session. The Court will rule on these weighty issues as well as hear significant cases in the areas of free speech, voting rights, criminal law and religious freedom. It may take on yet another challenge to Obamacare and put to rest all challenges to the legality of same-sex marriage. So let’s take a peek.

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The 2013 term featured a number of hot-button issues: pro-life speech outside abortion clinics, legislative prayer, campaign finance restrictions, racial preferences and a religious challenge to Obamacare. You may not realize that nearly two-thirds of these decisions were unanimous—a level of agreement unmatched since before World War II. The Obama Administration did not fare well in 2013. The Administration lost 9–0 in National Labor Relations Board v. Noel Canning (recess appointments); United States v. Wurie (cellphone searches); and Bond v. United States (prosecution under a chemical weapons treaty).

The upcoming 2014 term will likely be remembered for two significant issues that aren’t even technically before the Court as of this writing. Let’s look at those two first:

In United States v. Windsor (2012), the Supreme Court struck down the federal definition of marriage in Section 3 of the Defense of Marriage Act. However the decision did not address state definitions of marriage or whether states can refuse to recognize lawful same-sex marriages from other states.

Since Windsor, state marriage laws excluding same-sex couples and constitutional amendments banning gay marriage have been struck down across the country. In cases from Indiana, Oklahoma, Utah, Virginia and Wisconsin, parties have already petitioned the Supreme Court for review, asking whether the Equal Protection or Due Process Clauses of the Fourteenth Amendment prohibit states from either defining marriage in order to prohibit same-sex marriage or refusing to recognize out-of-state same-sex marriages.

Most court analysts predict the Court will strike down bans and refusals to recognize same-sex marriages in all states. I agree. Opponents of gay marriage have pinned their hopes on one last straw: last year’s decision in Coalition to Defend Affirmative Action v. Schuette. In this case, the Supreme Court upheld the right of Michigan voters to ban the use of racial preferences in admissions decisions at state-funded schools. Justice Kennedy wrote:

It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.

Gay marriage opponents insist that this language sends a signal that the Court will allow the states to define marriage. I hope not, but this Court has surprised us all before.

Meanwhile, the latest legal challenge to the President’s signature health care law involves Section 36B of the Internal Revenue Code (enacted as part of Obamacare), which allows the Internal Revenue Service to provide subsidies to individuals who buy health insurance through state-run exchanges.

Lawmakers assumed that every state would open an exchange, but 27 states chose not to do so. In those states, the federal government created a Federal exchange, and the IRS extended subsidies to individuals purchasing insurance through this exchange.

In Halbig v. Burwell, a federal appellate court in Washington, D.C. found that the text of Section 36B unambiguously restricts subsidies to insurance bought on an exchange “established by the State.” Hours later, a federal appellate court in Richmond, VA reached the opposite conclusion in King v. Burwell, concluding that the IRS’s extension of subsidies to those who bought Obamacare through the Federal exchange was reasonable.

The court granted the government’s request for a rehearing en banc in Halbig, and the King plaintiffs have asked the Supreme Court to review their case. Given the importance of the subsidy program to the overall success of Obamacare, its future may well hinge on the Court’s decision in June 2015.

Also on the Docket
The Court typically reviews between 70 and 80 cases per term. It has already agreed to hear 40 cases and will likely add more to the schedule in the next week or so. The following cases are sure to make headlines:

Elonis v. United States. Aspiring rapper Anthony “Tone Dougie” Elonis was convicted of making criminal threats after he wrote several Facebook posts espousing such violent acts as killing his wife, committing a school shooting, and blowing up an FBI agent. Elonis claims these posts are merely rap lyrics. The Court has been increasingly skeptical of overbroad laws that might chill lawful speech. At what point does free speech become a criminal threat? Perhaps they’ll post their decision on Twitter?

Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter. The False Claims Act (FCA) is a Civil War–era law that provides civil penalties for contractors that defraud the government. It includes a whistleblower provision that allows a private party with inside knowledge of fraud to bring suit (known as a “qui tam suit”) within six years of the alleged fraud. The FCA also provides that “no person…[may] bring a related action based on the facts underlying the pending action.” This “first-to-file” requirement was intended to encourage timely disclosure and prevent multiple whistleblowers from filing suits on the same facts.

Benjamin Carter filed a series of qui tam suits alleging that his employer, Kellogg Brown & Root Services, fraudulently billed the U.S. government for services in Iraq during 2005. A federal district court dismissed his most recent suit, both for being time-barred and due to the existence of an earlier qui tam suit arising from the same facts. A federal appellate court in Richmond, VA, reversed, finding that Carter’s suit was not barred because the earlier suit had been dismissed. In another FCA case, a federal appellate court in Washington, D.C., disagreed with this reading of the statute, finding that a later suit relying on the same facts remains barred even if the earlier suit is dismissed.

The appellate court in Carter also determined that the Wartime Suspension of Limitations Act (WSLA)—a 1942 law extending the statute of limitations for criminal prosecutions for fraud against the U.S. during wartime—allowed the case to continue. Kellogg Brown & Root Services argues that the WSLA does not apply to civil actions brought by private parties since it was intended to give the government more time to investigate potential fraud when it was otherwise occupied with a war. Plaintiffs also claim that the appellate court’s ruling turns the FCA’s “first-to-file” provision on its head. Other issues arising from the conflicting decision are whether a formal declaration of war is required to trigger the WSLA and how courts determine when the limitations period goes back into effect. The Supreme Court’s decision in this case could have huge consequences for a variety of industries that do business with the federal government.

Heien v. North Carolina. The Fourth Amendment protects individuals from unreasonable searches and seizures. “Reasonableness” is the lodestar for courts assessing the constitutionality of warrantless searches and seizures made by the police. Consistent with the Fourth Amendment, a police officer may make a traffic stop if he has a reasonable suspicion that a law is being violated. However, what happens if the officer’s suspicion is based on a mistaken view of the law?

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A police officer stopped Nicholas Heien after noticing that one of his brake lights was out. North Carolina law requires that vehicles must have a “stop lamp” and that “rear lamps” must be in working condition. After asking Heien various questions and checking his license and registration, the officer asked and was given permission to search the vehicle and found a small plastic bag of cocaine. Heien was charged with trafficking cocaine and at trial sought to suppress the evidence that had been taken from his car, arguing that the initial traffic stop was unreasonable because the officer misinterpreted the law.

As a matter of first impression, an appellate court determined that the relevant statutes require vehicles to have only one working brake light (which Heien’s car had) and ruled that the search of Heien’s car was unconstitutional. The Supreme Court of North Carolina reversed, finding that the traffic stop did not violate the Fourth Amendment since the officer’s mistake was objectively reasonable.

In Brinegar v. United States (1949), the Supreme Court explained that police officers must be given some room for operating under mistaken facts—as long as they are reasonable. North Carolina argues that the same logic applies to mistakes of law, but Heien maintains that the reasonable suspicion standard leaves no room for an officer’s mistaken interpretation of the law.

Yates v. United StatesIn the wake of the Enron accounting fraud scandal and its infamous “document-shredding parties,” Congress passed the Sarbanes–Oxley Act of 2002, setting new corporate accountability standards and providing criminal penalties for related white-collar crimes. One provision, 18 U.S.C. § 1519, makes it a crime to knowingly destroy “any record, document, or tangible object with the intent to obstruct an investigation….”

John Yates, a commercial fisherman and captain of the Miss Katie, was issued a citation for catching undersized red grouper in the Gulf of Mexico. While inspecting the Miss Katie, a federally deputized Florida Fish and Wildlife Conservation Commission officer counted 72 red grouper that measured less than 20 inches and instructed Yates to return to port, where the fish would be seized. The government alleges that between the point of inspection and the vessel’s arrival at port, Yates’s crew threw the undersized fish overboard and replaced them with larger fish. When the Fish and Wildlife officer measured the fish at port, 69 of them still measured less than 20 inches.

Not too bright, you may think.

Yates was convicted of knowingly destroying tangible objects with the intent to obstruct an investigation into his harvesting of undersized red grouper. A federal appellate court upheld his conviction, finding that a fish is a “tangible object” according to the statute’s plain meaning and that throwing the fish overboard constituted destruction. Yates argues that, read in context, “tangible object” refers to something used to preserve information, such as a computer or other storage device, and that a broader reading of the statute produces absurd results.

The Supreme Court has the opportunity to determine whether a federal criminal law aimed at those who would destroy documents and computer records relevant to a criminal investigation also covers “shredding” fish. On one level, this case should bring some much-needed comic relief to the Court. However, it also addresses the increasing tendency of prosecutors to overreach, in this case using laws intended to deal with serious white-collar crime to go on a…fishing expedition.

Department of Transportation v. Association of American Railroads. Article I, Section 1 of the Constitution states “All legislative Powers herein granted shall be vested in a Congress….” Derived from this grant of power, the non-delegation doctrine prohibits Congress from delegating legislative functions to the executive branch. In J.W. Hampton, Jr. & Co. v. United States (1928), the Supreme Court noted that Congress may delegate regulatory authority to an executive branch agency so long as it specifies an “intelligible principle” to limit and guide the agency in the exercise of its discretion. To date, the Supreme Court has struck down only two statutes—both in the 1930s—as unconstitutional delegations because of Congress’s failure to provide a sufficient “intelligible principle” to guide the applicable agency.

It is another issue, however, when Congress attempts to delegate regulatory authority to a private entity. While private entities may be involved in an advisory capacity in making regulations, delegation of legislative authority to private entities is strictly prohibited.

Amtrak is a unique creature—created by an act of Congress, but run as a for-profit corporation. Congress delegated to Amtrak the ability to co-author regulations governing the railroad industry in Section 207 of the Passenger Rail Investment and Improvement Act of 2008, and a freight railroad association challenged this delegation of authority. In finding that Amtrak is indeed a private entity and that Section 207 unconstitutionally delegates regulatory authority, a federal appellate court pointed out that such a delegation undermines the political accountability of government.

In Carter v. Carter Coal Company (1936), the Supreme Court struck down a New Deal–era law for improperly delegating to a commission of coal producers the ability to set minimum wages and maximum hours, stating that allowing private parties to regulate their competitors was “the most obnoxious form” of legislative delegation. But the government argues that Amtrak is not a private entity for purposes of the non-delegation doctrine because Congress created it and because the Executive branch maintains sufficient oversight over and control of it.

Alabama Democratic Conference v. Alabama and Alabama Legislative Black Caucus v. Alabama. With limited exception, it is entirely within the discretion of the Supreme Court to determine whether or not to review a case. One such exception is a Constitutional challenge to a statewide redistricting plan brought under 28 U.S.C. § 2284(a).

Two groups of Alabama Democratic legislators challenged the Republican-controlled legislature’s redistricting plan, which purportedly packs black voters into majority-minority districts (thereby reducing their influence in other districts), enacted after the 2010 Census. This is the latest skirmish in the ongoing battle in Alabama over redistricting that previously led a state court to draw up new districts. The Democrats argue that the 2010 plan violates the Equal Protection Clause’s “one person, one vote” guarantee, dilutes the strength of black voters, and is unconstitutional gerrymandering.

A three-judge panel in Alabama ruled for the state across the board, finding that the Democrats failed to prove vote dilution under the standard articulated by the Supreme Court in Thornburg v. Gingles (1986) and also failed to show that the redistricting plan was motivated by an invidious discriminatory purpose. The Democrats have appealed to the Supreme Court, which last considered voting rights issues in the landmark Shelby County, Alabama v. Holder decision during the Court’s 2012–2013 term. As redistricting has become a common tool of newly conservative legislatures to protect incumbent seats, this case bears careful watch.

Conclusion
Oral arguments before the current U.S. Supreme Court appear to be the leading indicator of which way the Court is leaning on a particular issue. So if you’re trying to read how the Court will decide a particular case, follow the oral arguments closely. Most analysts don’t expect major surprises from the Court this year, but a ruling on gay marriage could validate and bolster a growing cultural shift in Americans’ acceptance of it.  Be careful what you post to social media, though, and never, ever tell a fish story again.

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