At 11 a.m. Monday, the Supreme Court will explore the constitutional limits on Congress’s authority to hand off some of its power to make national policy to others. In Department of Transportation v. Association of American Railroads, the federal government will be represented by Curtis E. Gannon, an assistant to the U.S. Solicitor General. Arguing for the trade group of U.S. railroads will be Thomas H. Dupree, Jr., of the Washington, D.C., office of the law firm of Gibson, Dunn & Crutcher. Each attorney will have thirty minutes of time.
Background
The last time the Supreme Court struck down a federal law because Congress had delegated its legislative powers to someone else came nearly eight decades ago — in May 1936, at the height of the constitutional struggle between the Court and the Franklin Roosevelt administration over the “New Deal.” The famous ruling in Carter v. Carter Coal Co. nullified a Depression-era law aimed at stabilizing wages and hours in the coal-mining industry; the Court ruled that Congress had wrongly turned over to the mining companies themselves the policy task of setting wage and hour standards.
The so-called non-delegation doctrine, though perhaps neglected, still exists, and the Court next week considers whether there should be a modern sequel to Carter. A federal appeals court last year invalidated a 2008 law giving the operator of the nation’s passenger railroad service — Amtrak — a significant role in writing standards for performance of passenger trains. Whether that ruling will be allowed to stand is the issue in Department of Transportation v. Association of American Railroads.
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The petition of the day is:
14-355
Issue: (1) Whether, in a constructive discharge case, the plaintiff must also prove, in addition to proving that discrimination created conditions so intolerable that a reasonable person would have felt compelled to resign, that the employer acted with the intent of forcing the plaintiff to resign; and (2) whether, in a constructive discharge case, the plaintiff must also prove that before resigning he or she complained sufficiently to the employer about the discrimination.
Oyez has posted oral argument audio for this week’s oral arguments.
The Court heard arguments this week in:
Today’s news remains focused on how the criminal justice system responds to the seemingly excessive use of force by police officers – and on the apparent disparities in how suspects of different races are treated under the law. That’s because, after a grand jury last week declined to indict Officer Darren Wilson for the shooting death of Michael Brown in Ferguson, Missouri, a grand jury this week refused to indict Officer Daniel Pantaleo for choking Eric Garner to death as part of an arrest for selling loose cigarettes. Both officers are white; both victims were black. And the blogoshperic response has involved a juxtaposition of two hashtags: #CrimingWhileWhite, in which white wrongdoers confess to a variety of fairly serious misbehavior that landed them no more than a wrist slap (or a ride home!) from the police; and #AliveWhileBlack, in which innocent African Americans tell stories of police harassment based on their skin tone. It is a very illuminating look into how law enforcement discretion provides fertile ground for racial injustice. People do stupid things and break the law, or maybe they commit some utterly unremarkable minor infraction, and whether they go to jail, get strip searched, or even get shot at might very well be a product of express or subliminal racial prejudice.
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Adding some impetus for the Supreme Court to take up the same-sex marriage question during its current Term, lawyers for couples in Louisiana and Michigan have told the Court that they are giving up part of their filing rights. That gesture could lead the Court to schedule those two cases for the Justices’ first look as early as the private Conference set for January 9.
The Court now has five cases on the constitutional controversy over same-sex marriages, but only the Louisiana (Robicheaux v. George) and Michigan (DeBoer v. Snyder) cases are now in a position for early submission to the Justices. If the Court were to choose to hold all five cases until all are ready, however, that could slow the process considerably.
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The Supreme Court agreed this afternoon to rule on a state government’s power to set up a specialty license plate program that controls the messages that may be displayed. It accepted for review an appeal by the state of Texas, seeking to defend a state agency’s refusal to allow an organization to use a Confederate flag on a specialty plate because it found that display offensive.
The Court also agreed to spell out how state courts, in death penalty cases, are to handle the issue of whether the defendant is sufficiently mentally disabled to be spared a capital sentence. And it took on a case to define the legal defenses that may be offered by a company accused of inducing others to infringe a patent. It is likely that the new cases will be scheduled for argument in March.
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This case is about Section 11501(b)(4) of the Railroad Revitalization and Regulatory Reform Act of 1976 (the “4-R Act”), which prohibits a state from “impos[ing] another tax that discriminates against a rail carrier.” Wait, where are you going? This case, which has already been before the Supreme Court once, not only involves interesting questions of statutory interpretation, but also implicates fundamental questions about the meaning of “discrimination” in the tax context (and beyond). Indeed, the resolution of the case may require the Court to appeal to deep structural principles beyond tax. Both sides have reasonable arguments based on the text of the statute, legislative history, and policy. Thus the resolution of the case may turn on whether or not federalism concerns indicate that there should be a thumb on the scale in favor of a narrower construction of a statute that preempts state authority.
Put roughly, here are the facts. Alabama charges sales tax on the fuel purchases of railroads; it does not charge the sales tax on the fuel purchases of motor carriers – such as trucks. Because a federal statute bars discrimination against railroads, the railroad CSX Transportation, the respondent in this case, argues that the Alabama sales tax violates the 4-R Act. Not so fast, says Alabama, the petitioner in this case: Motor carriers pay a separate excise tax on their purchases of fuel, a tax that rail carriers do not pay. Surely, counters Alabama, when Congress prohibited “discrimination” it expected courts to be able to look at more than one section of a state tax code. Continue reading »
Gelboim v. Bank of America presents a routine question in a highly complex procedural context: When a district court dismisses all claims in one civil action that has been consolidated with other cases for pre-trial purposes through Multi-District Litigation, is that decision a final and immediately appealable order? Given the pervasiveness of complex litigation, and the increasing import of MDL procedures in light of recent retrenchment on class actions, the question may well prove significant. Continue reading »
Briefly:
- At Re’s Judicata, Richard Re discusses “Supreme Court signals” from Monday’s order list, which contained two statements by Justices respecting the denial of certiorari. He observes that, “[p]recisely because a signal is more ambiguously authoritative than a precedential merits decision, it’s also less binding on the Court itself. . . . This makes signals weaker medicine, but also safer and, perhaps, just what the doctor ordered.”
- At Hamilton and Griffin on Rights, Jessica Roberts analyzes Wednesday’s oral argument in the pregnancy discrimination case Young v. UPS; she concludes that, although “requiring employers to accommodate pregnancy could be a meaningful step in realizing the promise of the PDA for working mothers . . . whether and how such an accommodation comes to pass could have unintended consequences that both Congress and the courts must consider.”
- Also at Hamilton and Griffin on Rights, David Fagundes reviews this week’s oral argument in the trademark tacking case Hana Financial v. Hana Bank; he concludes that “[t]he Justices seemed much more receptive to the notion that determining consumers’ perceptions about the ongoing commercial impressions of marks was the kind of impressionistic issue appropriate for a jury, and as a result, the tenor of the oral argument seemed more favorable to Hana Bank.”
- At FiveThirtyEightPolitics, Oliver Roeder looks at whether the Court “is becoming too cloistered, its ranks filled more and more with blindered Ivy League elite.”
- At his eponymous blog, Art Leonard reviews the current state of play in litigation challenging state bans on same-sex marriage and concludes that“perhaps the worst scenario for getting real progress expeditiously would be if the Supreme Court doesn’t grant a cert petition until too late to schedule arguments this spring. Then we all play the waiting game until next fall and might not see a final marriage equality ruling until sometime next winter.”
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