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Author: Lyle Denniston

By on May 20, 2016 at 11:29 am
The federal judge who first shut down President Barack Obama’s sweeping immigration policy gave himself another controversial role on Thursday: overseeing required ethical schooling of every Washington-based Justice Department lawyer who appears in any court -- federal or state -- in twenty-six states over the next five years. District Judge Andrew S. Hanen of Brownsville, Texas, took that highly unusual step as one of the remedies for what he found to be serious ethical violations in his court by Justice Department attorneys when the new immigration dispute was before him in late 2014 and early 2015. That case is now awaiting a decision by the Supreme Court to determine the fate of delayed deportation of nearly five million undocumented immigrants. The twenty-six states where the judge's order could have an impact on the professional lives of Washington-based government lawyers are the ones that sued to challenge the Obama administration policy, and they are the ones the judge said had been harmed by misconduct.

By on May 16, 2016 at 11:46 am
Analysis Without settling any legal issues surrounding the Affordable Care Act's birth-control mandate, the Supreme Court on Monday nevertheless cleared the way for the government to promptly provide no-cost access to contraceptives for employees and students of non-profit religious hospitals, charities, and colleges, while barring any penalties on those institutions for failing to provide that access themselves.  Thirteen separate cases were sent back to federal appeals courts for them to issue new rulings on the questions the Justices left undecided.  One immediate issue is how soon the government can work out the technical arrangements to provide actual access to the contraceptive benefits. The Court largely shifted to six federal appeals courts the task of ruling on the mandate's legality -- the task that the Court had agreed last November to take on itself in seven of the cases.  Five appeals courts had ruled in favor of the mandate, and one had ruled against.  All were ordered to re-think those outcomes in the wake of new positions that the two sides in the controversy had made in recent filings in the pending Supreme Court cases. The Court acted through a per curiam ("by the Court") opinion -- announced in the Courtroom by Chief Justice John G. Roberts, Jr. -- dealing with the cases the Court was reviewing, along with three orders extending the effect of that opinion to six other cases that the Court had not yet agreed to hear.  Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote separately to stress that the Court had not decided any of the legal questions it considered in the cases, under the lead case's title, Zubik v. Burwell, and to caution lower courts not to read anything into the new opinion and orders about where the Court stands. [caption id="attachment_242590" align="aligncenter" width="570"]Chief Justice Roberts announces the Court's per curiam decision in Zubik v. Burwell Chief Justice Roberts announces the Court's per curiam decision in Zubik v. Burwell (Art Lien)[/caption]

By on May 12, 2016 at 1:59 pm
The often-challenged Affordable Care Act suffered a potentially crippling constitutional blow in federal court on Thursday, when a trial judge in Washington, D.C., ruled that the government had wrongly spent billions of dollars in the past two years to reimburse insurance companies for providing health coverage at lower costs to low- and moderate-income consumers. U.S. District Judge Rosemary M. Collyer, in a thirty-eight-page ruling upholding a constitutional challenge pursued by the U.S. House of Representatives, did not take any immediate action to stop that spending.  Instead, she put her decision on hold to allow it to be challenged in an appeal -- either to a federal court of appeals or directly to the Supreme Court. It seems quite unlikely that the dispute will be finally settled before President Barack Obama's term ends next January.  The near-term future and ultimate fate of the entire ACA program probably depends upon the outcome of this year's presidential election, in which it has already been a major issue.

By on May 2, 2016 at 2:26 pm
Screen Shot 2016-05-02 at 2.27.31 PM The Supreme Court, taking up an issue that has puzzled lower courts, agreed on Monday to clarify whether the design that is a part of a "useful article" is original enough to gain its own copyright protection.  In the case raising that issue (Star Athletica v. Varsity Brands), the fight is over designs that are part of uniforms or warm-up outfits for cheerleaders, but the potential impact could sweep far more widely, especially in the garment industry. In a second intellectual property case that the Court accepted for review, the issue is whether the holder of a patent who waits too long to defend its rights loses the option of challenging an alleged infringement.  That question came up in the case of SCA Hygiene Products v. First Quality Baby Products, involving a dispute over patents for disposable "adult diapers."  Both that case and the cheerleader-uniform controversy will be heard and decided next Term. The Court also turned aside a challenge to the way that Seattle's fifteen-dollar minimum-wage guarantee applies to local companies that are affiliated with out-of-state franchise networks.  There was, as usual, no explanation for the denial of the case (International Franchise Association v. Seattle).

By on Apr 29, 2016 at 3:00 pm
In a ruling that potentially could disrupt Amtrak's efforts to make its passenger trains run on time and its ability to earn profits in doing so, a federal appeals court on Friday struck down the corporation's power to help write rules on the use of railroad tracks across the country.  In a separate part of the ruling, the U.S. Court of Appeals for the District of Columbia Circuit nullified Amtrak's shared role in settling disputes over those rules. The D.C. Circuit was carrying out an assignment given to it by the Supreme Court last year, and the result is very likely to lead ultimately to a return to the Supreme Court.  The Obama administration had defended Amtrak on both issues at stake, and government officials almost always feel a duty to appeal a ruling in which a federal law has been struck down.  The government has the option of first trying to get the full D.C. Circuit to rule en banc on the constitutional dispute.

By on Apr 29, 2016 at 12:12 pm
The Supreme Court refused on Friday to stop Texas from enforcing a strict photo ID requirement for voters in the state, but left open the chance that it might change its mind later.  The order in essence gave a federal appeals court until July 20 to decide a case about that law's validity under the federal Voting Rights Act.  After that date, the Court might step in, it said. The Texas law, first passed five years ago, has been used in three Texas elections, and it will be used again on May 24, when voters go to the polls to cast ballots in a run-off election. The challengers who took a new plea to the Court recently want the requirement blocked for the November 8 general election.   The challengers contend that the Texas measure imposes the most rigorous ID requirements of any such law in the nation.

By on Apr 27, 2016 at 1:35 pm
Analysis When a government criminal case looks like it may collapse from more than one legal weakness, maybe the only challenge to the Supreme Court is to pick the one that limits the damage for prosecutors.   That was the prospect on Wednesday as the Court -- in the final hearing of the current Term -- spent an hour pondering ways that it could scuttle the high-profile public corruption verdict against former Virginia governor Robert F. McDonnell -- as he and his wife sat silently in the second row of spectators. With Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Anthony M. Kennedy energetically taking apart the verdict -- and, with it, the laws used by the prosecution -- the prospect of imminent prison for McDonnell appeared to have visibly lifted.  At a minimum, a new trial for him seemed in store, but there also was a more significant chance that the Court would make it considerably harder to build a new case against him and, in general, to prosecute other public officials for doing favors for benefactors.

By on Apr 25, 2016 at 6:59 pm
UPDATED Wednesday April 27 5:10 p.m.   The Washington team's petition has now been docketed as 15-1311. ------------ Lawyers for the professional football team in Washington, D.C., seeking to salvage the owners' legal right to the exclusive use of the team name "Redskins," asked the Supreme Court on Monday afternoon to hear that case before a lower court rules on it, if the Justices also take on a new trademark appeal by the federal government. The new case is Pro Football, Inc., v. Blackhorse.  It was filed five days after the government filed its petition in Lee v. Tam (docket 15-1293).  Both deal with the constitutionality of a part of federal trademark law that denies the exclusive right to use words or a symbol if they would "disparage" any living or dead individual, institution, belief, or national symbol.  That provision was struck down last December in a case involving a rock music band's request to register a trademark, "THE SLANTS."  The request was turned down as a racist reference to people of Asian ancestry.

By on Apr 25, 2016 at 12:14 pm
Less than two years after trying to sort out the proof federal prosecutors must offer to get convictions for bank fraud, the Supreme Court on Monday decided to try again even though few lower-court judges have yet applied the Justices' prior ruling.  The Court granted review of the new case, Shaw v. United States, despite the government's argument that very little was at stake.  The Court also took on a case about court review of orders to provide restitution to victims of crime. Both cases will be heard and decided in the next Term starting in October.  So far, with Monday's orders included, the Justices have put on the new Term's docket only ten cases, including five that are being carried over from the current Term.  The pace of grants has fallen off since the Court wound up with eight members, after the death of Justice Antonin Scalia in February.

By on Apr 20, 2016 at 5:46 pm
Distance remained on Wednesday between the two sides in the controversy over the Affordable Care Act's birth-control mandate, with each continuing to emphasize problems they have with each other's views rather than trying to reach for a common approach.  The final round of briefs in reaction to the Court's own idea for a possible compromise have now been filed -- the challengers' and the federal government's. With those filings in the combined cases of Zubik v. Burwell now available to the Court, the Justices can move back into private discussions on whether a majority can be put together to rule on the legality, under the Religious Freedom Restoration Act, of the contraceptive mandate.  There is no sign that, having held a hearing on March 23 and then having floated on March 29 a possible frame for a decision, the Court will want to hear more from the lawyers before going ahead.