SCOTUS Update Lisa Soronen State and Local Legal

SCOTUS Update Lisa Soronen State and Local Legal Center lsoronen@sso. org

Who Has Seen Frozen 2?

What Was the Theme of the Movie?

Why Was the Movie so Confusing?

Will This Presentation Suffer from the Same Defect?

Overview of Presentation • What’s happened with SCOTUS since we talked last? • SCOTUS cases of interest to NARC members • SCOTUS cases that might impact the election

What’s Happened Since We Talked Last? • Right before the end of last term

Supreme Court Has Not Changed

Chief Justice Roberts is Still in the Middle Conservative • Chief Justice Roberts* • Thomas • Alito • Gorsuch • Kavanaugh Liberal • Ginsburg • Breyer • Sotomayor • Kagan

Roberts Split His Vote in Two Crucial Cases • Both having a big impact on local governments

Vote in the Census Case • Joined the liberals to rule census question could not be added because reasons given were pretextual in violation of the Administrative Procedures Act • Total surprise based on oral argument • Did later revealed facts make a difference? • Roberts changes has vote after oral argument--Joan Biskupic: • Roberts came to understand after oral argument Ross wasn’t being truthful and it mattered • Paul Smith (Campaign Legal Center): Roberts joined the liberals “on the cheap”

Vote in Partisan Gerrymandering • Joined his four conservative colleagues to hold that partisan gerrymandering cases can’t be brought in federal court • “Conservative” vote in the sense of judicial modesty rather than political ideology • Courts should stay out of the “political thicket” • This is the state legislatures lane and not the federal courts lane • Democrats and Republicans both engage in partisan gerrymandering • Since the mid-1990 s most state legislatures have been majority Republican

Impeachment Role • Last thing in the world the Chief Justice wants to do is preside over the Senate impeachment trial • Impeachment is perceived as partisan (more by Republicans than Democrats) • Chief’s role is largely ceremonial • CNN top headline the day I put this presentation together: John Roberts will not be Silent Today • Every move he makes is scrutinized • Admonishment of “both sides in equal terms” received significant news coverage

Three Big Developments Since June • • Almost no opinions YET Juicy grants SCOTUS will stay out of the ACA litigation (for now) Nods to the Trump agenda

Staying out of the ACA Litigation • In December 2019 the 5 th Circuit held that the Affordable Care Act individual mandate is unconstitutional now that the shared responsibility payment is $0 • This was expected • 5 th Circuit did not decide whether the entire law or other parts of the law other than the individual mandate are unconstitutional • This was unexpected • Question of whether entire law or other parts of the law other than the individual mandate are unconstitutional went back to the lower court • SCOTUS refused to hear the case at this time

Facts • The Affordable Care Act individual mandate required uninsured who didn’t purchase health insurance to pay a so-called sharedresponsibility payment • In 2012 the Supreme Court held the individual mandate is a constitutional “exercise of Congress’s Tax Power because it triggered a tax” • The Tax Cuts and Jobs Act of 2017 reduced the sharedresponsibility payment/tax to $0 as of January 1, 2019

th 5 Circuit Reasoning • NFIB v. Sebelius (2012) five Supreme Court Justices agreed that the “individual mandate could be read in conjunction with the shared responsibility payment” as “a legitimate exercise of Congress’ taxing power four reasons” • Specifically, the shared-responsibility payment generated revenue for the federal government by taxpayers when they filed their tax return. The IRS enforced the requirement to pay, and the amount owed was “determined by such familiar factors as taxable income, number of dependents, and joint filing status. ” • The Fifth Circuit reasoned that now the shared responsibility payment amount is zero “[t]he four central attributes that once saved the statute because it could be read as a tax no longer exist”

No Revenue No Tax • “Most fundamentally, the provision no longer yields the ‘essential feature of any tax’ because it does not produce “at least some revenue for the Government”

5 th Circuit Didn’t Decide How Much of the ACA Remains • While the district court held that none of the ACA was severable from the individual mandate the Fifth Circuit concluded the district court failed to take a “careful, granular approach” in its severability analysis. • “The district court opinion does not explain with precision how particular portions of the ACA as it exists post-2017 rise or fall on the constitutionality of the individual mandate. Instead, the opinion focuses on the 2010 Congress’ labeling of the individual mandate as ‘essential’ to its goal of ‘creating effective health insurance markets, ’ and then proceeds to designate the entire ACA inseverable. ”

Factors SCOTUS Weighed in Staying Out (for Now) Yes • SCOTUS is very likely eventually going to decide the issue in this case; why wait • Uncertainty over a law implicating billions of dollars is unacceptable No • Already has enough controversial cases on the docket • Case has no practical implications right now because only the individual mandate has been struck down and no one has to pay the shared responsibility payment

What is the Shadow Docket? • Court decides temporarily whether or not a law, rule, etc. can go into effect while litigation continues in the lower court • If the Court allows a law, rule, etc. to go into effect it is indicating that at a quick glance the law seems okay • Example • Court allowed $2. 5 million of the military’s budget to go to fund the border wall while the litigation continues • Court hasn’t yet ruled on whether border wall funding is legally permissible

Shadow Docket Nods to the Trump Administration • Voted with the conservatives to allow $2. 5 million of the military’s budget to go to fund the border wall while the litigation continues • Presume he joined a presumably 7 -2 vote to all Trump administration to deny asylum to those coming through Mexico and not seeking asylum there • But earlier he provided the 5 th vote to allow a federal district court decision ruling against a Trump policy to deny asylum to those crossing the Mexican border not at a port of entry to stand • Joined his conservative colleagues to allow the public charge rule to go into effect temporarily

Is This What A Conservative SCOTUS Really Looks Like? • If Trump has a second term many, many legal issues will make it to SCOTUS • Sanctuary cities • Challenges to his WOTUS rule • Affordable Clean Energy • California waiver gas emissions standards • If he doesn’t many of these cases will go away

Cases of Interest as NARC Members • Groundwater • Impounded vehicles • Excessive force

County of Maui v. Hawaii Wildlife Fund • Simplest version of the question presented in this case is this: is groundwater covered by the Clean Water Act?

Now the Rest of The Story • The Clean Water Act requires a particular federal permit if a pollutant is • • added to navigable waters from a point source Navigable waters and point source are technical terms defined in the Clean Water Act Navigable waters are surface waters like the ocean Point sources are conveyances including: pipes, ditches, channels, and wells So the more technical question is if polluted water starts in a point source and ends up in navigable water via a nonpoint source (here groundwater) is a federal permit required

The Facts • • • Maui County operates 4 wells which receive treated wastewater Per the Clean Water Act treated wastewater contains a pollutant Wells are a point source The wells in this case inject wastewater into the groundwater A tracer dye study determined the wastewater from the two of the wells made it into the ocean • The ocean is a navigable water

Groundwater is the Game Changer • If the polluted water went directly from the well to the ocean there is no question a federal permit would be required • But because the polluted water goes through groundwater on its way from a well to the ocean the question has arisen of whether a federal permit is required

Two Twists • In 1973 before the wells were constructed EPA knew the polluted groundwater would reach the ocean but didn’t require a federal permit • Federal and state safe drinking water laws regulate the treated wastewater in the wells

Ninth Circuit Holding • Maui was required to get a federal permit because the pollutants could be traced from the wells to the ocean

What’s the Problem with Getting the Permit? • • Time consuming Expensive Permitting program isn’t designed for groundwater Didn’t have to get it for decades before

No NPDES Permit Required in Gray States

Plot Thickens • Maui county has voted to settle the case • The mayor says the case can’t be settled without his agreement; he won’t settle the case • But all signs point towards Maui winning • At oral argument the five conservative Justices seemed to favor no permit being required • EPA has taken the position groundwater isn’t covered under the Clean Water Act • This case is the best vehicle; Maui can save the planet after the win before SCOTUS

Torres v. Madrid • Excessive force case with facts you can’t make up • As a practical matter states and local governments must pay money damages when police officers are successfully sued for use of excessive force unless qualified immunity applies (meaning only a plainly incompetent police officer would have thought at the time that the use of force was reasonable)

Facts • Police officers approached Roxanne Torres thinking she may be the person they intended to arrest • Torres was “tripping” from using meth for several days • She got inside a car and started the engine • One of the officers repeatedly asked her to show her hands but could not see her clearly because the car had tinted windows • When Torres “heard the flicker of the car door” handle she started to drive thinking she was being carjacked

Facts • Torres drove at one of the officers who fired at Torres through the wind • • • shield The other officer shot at Torres as well to avoid being crushed between two cars and to stop Torres from driving toward the other officer Torres was shot twice After she hit another car, she got out of her car and laid on the ground attempting to “surrender” to the “carjackers” She asked a bystander to call the police but left the scene because she had an outstanding warrant She then stole a car, drove 75 miles, and checked into a hospital using an alias

Legal Issue • Torres claims the police officers used excessive force against her in violation of the Fourth Amendment • For the Fourth Amendment to be violated a “seizure” must have occurred • The federal circuit courts of appeals are split regarding whether an attempt to detain a suspect by physical force must be successful for a “seizure” to occur

Holding and Reasoning • Tenth Circuit held that “a suspect's continued flight after being shot by police negates a Fourth Amendment excessive-force claim. ” This is so, because “a seizure requires restraint of one's freedom of movement. ” Therefore, an officer's intentional shooting of a suspect isn’t a seizure unless the “gunshot. . . terminate[s] [the suspect's] movement or otherwise cause[s] the government to have physical control over him. ”

Holding and Reasoning • Tenth Circuit held that “a suspect's continued flight after being shot by police negates a Fourth Amendment excessive-force claim. ” This is so, because “a seizure requires restraint of one's freedom of movement. ” Therefore, an officer's intentional shooting of a suspect isn’t a seizure unless the “gunshot. . . terminate[s] [the suspect's] movement or otherwise cause[s] the government to have physical control over him. ”

Brain Teaser • How can you be seized if you get away? • How can you not be seized if you are shot (multiple times)?

City of Chicago v. Fulton • How many of your cities impound vehicles for unpaid tickets?

Issue • Whether a local government must return a vehicle impounded because of code violations immediately upon a debtor filing for bankruptcy

Bankruptcy Law 101 • The “automatic stay” provision of the Bankruptcy Code provides that a bankruptcy petition “operates as a stay, applicable to all entities, of … any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate” • Only thing I know about bankruptcy law is the automatic stay is no joke

Holding and Reasoning • In a previous case decided in 2009, Thompson v. General Motors Acceptance Corp. , the Seventh Circuit concluded that “exercise control” includes holding onto an asset and that “exercise control” isn’t limited to “selling or otherwise destroying the asset” • So, the court reasoned in this case, the City of Chicago “exercised control” over Fulton’s car in violation of the automatic stay by not returning it after she filed the bankruptcy petition

Get this… • Milwaukee impounded between 29, 000 and 32, 000 vehicles in each of the past three years • A 2013 investigation by the Chicago Tribune found that hundreds of owners of impounded vehicles had turned to a single scam artist to file fraudulent bankruptcy petitions in order to receive their vehicles without paying an impoundment fee • In 2016, approximately 3, 800 vehicles impounded by Chicago were released in response to bankruptcy petitions

Five Controversial Cases • None of these are “local government” cases per se or exclusively • All of them are likely to be decided in June of 2020 • Usually takes a decade for SCOTUS to decided cases on: abortion, guns, immigration, sexual orientation/gender identity, and presidential power

Why So Many Big Cases This Term? • Court is fully staffed • Cases were put off to protect Kavanaugh • Lot going on

Impact on the Election • All these cases could impact the election because they involve hot button issues • All will receive significant news coverage • All may impact whether and (to a much lesser degree) whether voters vote

Perspective • Is the outcome of this case likely to motivate an unmotivated voter in WISCONSIN to vote or not vote? • No undecided voters this time • Smart money=best guess

Are You a SCOTUS Voter? • From a CNN exit poll in 2018: • 1 in 5 voters said the Supreme Court was one reason they voted in 2018 • Of voters who said it was the most important reason 56% voted for President Trump

Would You More Likely Be a SCOTUS Voter • If I told you: • Justice Ginsburg is 86 and has had cancer four times • Justice Breyer is 81 • Both Justice usually vote with the other two liberal Justices in controversial cases

Abortion • Issue: whether Louisiana’s law requiring physicians performing abortions to have admitting privileges at a local hospital conflicts with Supreme Court precedent • In 2016 in a 5 -4 decision in Whole Woman’s Health v. Hellerstedt the Supreme Court struck down Texas’s admitting privileges law • In Louisiana to obtain admitting privileges a doctor must be a member of the hospital in good standing able to perform surgery on patients, at a hospital not further than 30 miles from the abortion clinic

Abortion • In Texas the admitting privileges requirement caused half of the state’s abortion clinics to close • Unlike in Texas the majority of Louisiana hospitals do not have a minimum number of required admissions that a doctor must have to maintain privileges • According to the Fifth Circuit, if most of the abortion doctors (5 out of 6) in Louisiana put forth a good-faith effort they should be able to get admitting privileges and no clinics would close

Smart Money • Majority of the Court will hold that Louisiana's law is constitutional • No oral argument yet • Chief Justice voted to not let this law go into effect while the litigation continued • National Survey by Marquette Law School found 6 in 10 American would like Roe v. Wade overturned How will your average pro-choice Wisconsin voter see this ruling? • Not crazy considering no abortion clinic will have to close • Another attack in Roe v. Wade where the outcome of a very similar case from a few years ago is different because another conservative Justice joined the Court

Smart Money • This ruling will likely motivate some unmotivated Wisconsin Democrats to vote • Caveat: most pro-choice voters are already motivated • Wisconsin has an admitting privileges law that the 7 th Circuit enjoined in 2015 • Unless SCOTUS overrules the Texas case the WI law is still probably problematic • WI legislature gave doctors 2 days (over a weekend) to comply • Sending patients to a hospital is a requirement; one doctor couldn’t even get an application

DACA • Issue: is Department of Homeland Security’s (DHS) decision to end the Deferred Action for Childhood Arrivals (DACA) program is judicially reviewable and lawful? • DACA was established through a DHS Memorandum during the Obama presidency • The program allowed undocumented persons who arrived in the United States before age 16 and have lived here since June 15, 2007, to stay, work, and go to school in the United States without facing the risk of deportation for two years with renewals available

Weird Case • Everyone agrees DHS could rescind DACA simply because DHS no longer wants/likes/agrees with the program • In the same way the Obama administration began to program because the President wanted/liked/agreed with it • President Trump didn’t want to take the heat on rescinding DACA for policy reasons—but if it is illegal it has to go!

Smart Money • Majority of the Court will hold that DACA can be rescinded • 53% of the people surveyed by Marquette Law School disagree with the decision to end DACA • Why isn’t that number higher? • DACA recipients are very sympathetic no matter a person’s politics or feelings about immigration • Do many people living in Wisconsin personally know a DACA recipient? • Seems unlikely this case will motivate unmotivated Democratic voters in Wisconsin

Guns, and More Guns • Issue: whether New York City’s ban on transporting a handgun to a home or shooting range outside city limits violates the Second Amendment • In 2008 in District of Columbia v. Heller, the Supreme Court held that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation” • Whether an individual has a Second Amendment right to possess a gun outside the home is an open question under the Second Amendment

Smart Money • New York City loses OR SCOTUS moots the case • A little over half of Americans surveyed by Marquette Law School support a ban on semi-automatic weapons

Smart Money • How will your average Wisconsin Democratic voter see this case? • Average Wisconsin Democratic voter may be fine with NYC losing this case! • Average Wisconsin Democratic probably thinks it is crazy that a person can’t take a gun outside their home • Some voters are done with guns: U. S. Senator Sheldon Whitehouse D-R. I amicus brief leads me to conclude that some unmotivated Democratic voters might conclude this case is a reason to vote • How many of these voters live in Wisconsin?

Sexual Orientation/Transgender Cases • Title VII prohibits discrimination “because of sex” • Is discrimination against a person because of sexual orientation or gender identity covered by Title VII?

Justices Have to Sort Out… • • • Text History Sex stereotyping Court’s confusion/discomfort about gender identity Next slide: Lisa Keen, Supreme Court probabilities spell uncertain results, Keen News Service

Smart Money—Court Unlikely to Extend Title VII Protections No • Thomas: Almost certain No • Alito: Almost certain No • Roberts: Strong Probable No • Kavanaugh: Probable No Yes • Kagan: Almost certain Yes • Ginsburg: Almost certain Yes • Breyer: Almost certain Yes • Sotomayor: Almost Certain Yes on Sex Orientation only

Gorsuch: Possible on Sex Orientation; uncertain on trans • For instance, he said that, while sexual orientation discrimination may have been in play when the employers fired the men for being gay, “isn’t sex also in play here”? “And isn’t that enough? ” for a Title VII violation, he asked. “The statute, ” he said, “talks about a material causal factor …not the sole cause, not the proximate cause, but a cause. ” • Gorsuch said he was “really close” to seeing the argument that Title VII’s text should cover sexual orientation and transgender status, but he also expressed concern about what he said would be the “massive social upheaval” of such a decision

If the Court Says No Coverage • Marquette Law School survey found that 60% of Americans support Title VII protection for people based on sexual orientation • How will your average unmotivated Wisconsin Republican voter see this case? • Another example of the current Republican party being not inclusive enough? • Will they understand/care that Congress could amend Title VII? • Might this case be a tipping point for an unmotivated Republican voter not to vote?

Wisconsin is Progressive on these Issues • WI statutes protect employees on the basis of sexual orientation but not gender identity • 7 th Circuit Title IX case extended protection “because of sex” to transgender students

Trump’s Financial Information: Three Cases • Two cases: house committees subpoenaed the President’s accounting firm and lenders seeking financial records that they have in their possession • One case: New York City prosecutor subpoenaed the president’s accounting firm seeking President’s financial records, including his tax returns • President Trump lost all cases in the lower courts

New York City Case • This case is about the Presidential power • “This case presents the question of when, if ever, a county prosecutor can subpoena a third-party custodian for the financial and tax records of a sitting President, over which the President has no claim of executive privilege” • Or is it? • “But we are not faced, in this case, with the President's arrest or imprisonment, or with an order compelling him to attend court at a particular time or place, or, indeed, with an order that compels the President himself to do anything. The subpoena at issue is directed not to the President, but to his accountants; compliance does not require the President to do anything at all. ”

United State v. Nixon • Special prosecutor subpoena directed President Nixon to “produce certain tape recordings and documents relating to his conversations with aides and advisers” for use in a criminal trial against high-level advisers to the President • Nixon argued • Communications were privileged • President is insulated from a judicial subpoena in an ongoing criminal prosecution • Nixon lost unanimously

No Privileged Information • President's private tax returns and financial information relating to the businesses he owns in his capacity as a private citizen aren’t privileged • Nixon’s argument was better • “We find no support in the Nixon Court's conclusion—that even documents exposing the President's confidential, official conversations may properly be obtained by subpoena—for the proposition that a President's private and non-privileged documents may be absolutely shielded from judicial scrutiny. ”

Any Way Around Nixon? • • State court v. federal court—case doesn’t involve the President Trump is explicit target—just an investigation Supreme Court can find its way around anything!! Presidential power isn’t a liberal or a conservative issue

Smart Money • I have no idea what SCOTUS will do with these cases—oral argument in April will be telling

Let’s Game it Out Tax Returns Released • Unmotivated WI Republican or Democrat voter be mad enough at what is in the tax returns not to vote for Trump or to vote against Trump? Tax Returns NOT Released • Unmotivated WI Democratic voter be mad enough at SCOTUS to vote?

Questions? Thanks for attend!