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Author: Tom Goldstein

By on Jul 23, 2014 at 10:19 am
Yesterday, two federal courts of appeals issued conflicting decisions on a major challenge to the operation of the Affordable Care Act (ACA).  The stakes are huge.  The rule at issue provides a big subsidy for millions of people to buy insurance.  Without those subsidies, many Americans would not be required to buy insurance, including young healthy individuals that are so important to the insurance pool.  The rule also determines whether employers have to comply with the upcoming mandate to provide insurance to their employees. Here is how the statute works.  The ACA requires states to create “exchanges” – essentially, marketplaces – for their residents to buy health insurance.  But if a state refuses, the federal government will provide the exchange.  The law then provides tax credits for people who need financial assistance.  Without the subsidy, many people will not be subject to the “individual mandate” to buy insurance.  An employer also is required to make insurance available only if its employees receive the subsidy.

By on Jul 6, 2014 at 8:09 am
In granting Wheaton College an injunction against the contraception mandate, the Supreme Court issued an order, accompanied by a one-sentence concurrence by Justice Scalia “in the result,” and a lengthy dissent by Justice Sotomayor joined by Justices Ginsburg and Kagan.  Following its usual practice in such matters, there was no mention of how the other Justices voted, including Justice Breyer.  (Marty Lederman and I debate the effect of the order here and here.) The dissent argued that the injunction was procedurally inappropriate and inconsistent with the Court’s very recent opinion in Hobby Lobby.  That decision was five to four.  The dissenters were the three dissenting Justices identified in Wheaton College, plus Justice Breyer.  That raises two questions:  did Justice Breyer join the Wheaton College majority; and if so, why?

By on Jul 4, 2014 at 11:53 am
I think Marty’s post below on the accommodation issue in the Wheaton College case is very interesting.  But I think that the issues he raises are resolved more simply than his post suggests. As I understand it, here is the nub of the potential problem.  Presently, a religiously affiliated entity secures an accommodation from the contraception mandate by filling out and submitting the Department of Labor’s “Form 700.”  That form has a specific legal consequence:  it deems the entity’s health insurer to be a “plan administrator” under ERISA.  That is important, because the government can only require a plan administrator – not every insurer – to provide free contraception coverage. Here is Marty’s concern.  Under the Court’s opinion, Wheaton College will not fill out Form 700.  It will instead identify itself to the government as religiously affiliated.  So as things stand, Wheaton’s insurer will not be deemed a plan administrator.  So the government cannot require its insurer to provide free contraception coverage. There seems to be a simple answer:  Form 700 is not so special.  The relevant regulation (29 C.F.R. § 2510.3-16(b)) says that the entity’s “self-certification” will deem its insurer a plan administrator.  Another regulation (29 C.F.R. § 2590.715-2713A) says that a self-certification will be submitted in “a form and manner specified by” the government.

By on Jul 1, 2014 at 9:31 am

Here is the order list. The Court has granted certiorari in the following cases: 12-1226, Young v. UPS 12-1497, KBR v. United States ex rel. Carter 13-271, OneOk v. Learjet 13-352, B&B Hardware v. Hargis Indus. 13-502, Reed v. Town of Gilbert (case page forthcoming) 13-553, Alabama Department of Revenue v. CSX...

By on Jun 27, 2014 at 8:29 am
In National Labor Relations Board v. Noel Canning, the Supreme Court (by a vote of five to four) rejected two major structural challenges to the recess appointments power, but all the Justices invalidated the recess appointments at issue in the case by accepting a third argument.  The five-Justice majority held that the power applies to intra-session recesses and to vacancies that occur prior to the recess. But the Court held that these appointments were nonetheless invalid because the Senate is in session (and the recess appointments power does not apply) when both (a) the Senate says it is in session, and (b) it has the actual capacity to act.  The latter is critical:  “But our deference to the Senate cannot be absolute.  When the Senate is without the capacity to act, under its own rules, it is not in session even if it so declares.” The Court held that both conditions are satisfied by a pro forma session because (a) not only does the Senate say it is in session, but (b) it can also act by unanimous consent during the session because the Senate rules presume the existence of a quorum.  Because these recess appointments were made despite the existence of a pro forma session that broke up a longer recess, they were invalid. The interesting point is that (b) is rests on a fiction:  there actually is no Senate quorum during a pro forma session.  As Mitch McConnell’s brief in the Supreme Court explains, “The Senate, in other words, has provided that a quorum is presumed until proven otherwise.”  And it is a fiction the Court definitively accepts:  “[W]hen the Journal of the Senate indicates that a quorum was present, under a valid Senate rule, . . . we will not consider an argument that a quorum was not, in fact, present.” Yet that critical presumption that a quorum exists is easily burst:  any member of the Senate can suggest the absence of a quorum.  “During any pro forma session, the Senate could have conducted business simply by passing a unanimous consent agreement. . . .  Senate rules presume that quorum is present unless a present Senator questions it.”  As Noel Canning’s brief in the Supreme Court explains, “whenever the Senate lacks quorum . . . , a single Senator can prevent the Senate from conducting business by making a quorum call.”

By on Jun 25, 2014 at 9:55 pm
If you think your cable bill is too high, you probably don’t want to read this.  The Supreme Court yesterday put a stake in the heart of a start-up that delivered network television on the cheap.  More fairly, the Supreme Court recognized that Congress killed the service – Aereo – well before it got off the ground.  Let’s talk about the decision in Plain English. This is a copyright case.  If you make a work – including a television show – you can get a copyright.  Federal law provides that no one can “publicly perform” that work unless they pay you.  And the specific provision is very broad:  it applies if the show is transmitted “by means of any device or process” and even if the audience receives it “in separate places” and “at separate times.” Here is Aereo’s service.  You pay a fee.  In exchange, they send you network television over the Internet.  The fee is small because Aereo’s costs are low.  It doesn’t pay the copyright owners.  Instead, it has thousands of individual antennas, each of which can tune into a particular channel requested by a particular subscriber.  Aereo then saves the subscriber’s program in a separate file.  It sends the data over the Internet.

By on Jun 23, 2014 at 12:31 pm
This was a morning of ironies.  At 9:30 a.m., six members of the blog staff were live-blogging the Supreme Court’s orders, followed by opinions at 10 a.m.  There were 10,000 readers.  The Standing Committee of Correspondents chose that time to release its ruling denying our appeal of its revocation of our press credential.  We learned about it from Twitter. Over the course of the past year, the Committee has seemed to search for a reason for its decision, never explaining its prior decision to grant us a credential.  For example, it has questioned whether our sponsorship failed to qualify as advertising.  It has also expressed doubts about whether we require on-site access to the Senate. Today, it settled on the fact that practicing lawyers publish and write for the blog.  The Committee takes the view that the blog is not editorially independent from my law firm or from other lawyers who write for the blog.  As a consequence, the Committee found, the blog violates two independent requirements under the Committee’s Rules: any credentialed publication must be editorially independent from an organization that (i) “lobbies the federal government”; or (ii) “is not principally a general news organization.” Put to the side for the moment whether you agree with the Committee’s decision.  It should be common ground that its rationale is sweeping and has broad implications for whether non-traditional media is regarded as “journalism.” 

By on Jun 5, 2014 at 1:23 pm
On Wednesday, Amy had a post on a Senate Judiciary Committee hearing on a proposed constitutional amendment to permit greater campaign finance regulation.  We covered the hearing because the purpose of the amendment is to overrule several recent Supreme Court decisions, and to block later similar decisions in the future.  Like our recent posts on Justice Stevens’s testimony in the Senate, Amy’s post is part of our effort to cover congressional developments that are closely related to the Court. Amy went to the hearing.  Or at least she tried.  She got there well before the hearing started, but there was a line.  Dozens of Hill interns had gotten there first.  So the Committee room was full.  She waited, but only got in once others in the audience left; by that point, the hearing was already half way over.  In the meantime, several credentialed reporters arrived at the last moment or during the proceedings and took one of the seats reserved exclusively for the press.

By on May 20, 2014 at 12:05 pm
There has been a lot of public discussion and press attention about the Supreme Court’s decisions on campaign finance law, which can be a very complicated topic (especially for non-lawyers).  So I thought it would be useful to write a short Explainer on what the Court is up to. There are two key categories of restrictions on spending in elections.  Some laws are “contribution limits” – they limit giving money to candidates and entities associated with candidates, like political parties and candidate political action committees.  Other laws are “expenditure limits” – they limit spending money in elections.

By on May 14, 2014 at 4:40 pm

For those interested in the discussions of our press credentials, the Standing Committee of the Senate Daily Press Gallery will hear our appeal of the revocation of Lyle Denniston’s credential on May 23.  Today, we submitted this document  to the Gallery for the appeal.  ...