The docket of the brand new courtroom – Legislation & Liberty
Supreme Court blockbuster cases come in two flavors. One type solves the legality of one of the top priorities of the current administration. Another sets constitutional law on an important issue along the controversial fault lines of society. Occasionally cases do both when the Supreme Court upheld the constitutionality of the Bank of the United States. Most blockbusters of the current term, however, fall into one of the first two general categories.
Fulton versus Philadelphia
The most important case currently in relation to the Society’s fault lines is Fulton v Philadelphia. There the court must decide whether it is consistent with the Philadelphia free exercise clause to exclude a Catholic agency from placing foster children with families because the agency refuses to place same-sex couples. The case will help determine whether religions with traditional views on sexuality can continue to participate fully in public life as charities and educational institutions. The question is no longer whether religion, as George Washington argued, is a necessary foundation for republican life, but whether republican life can flourish when traditional religious influence is officially excluded.
Constitutionally, one of the questions raised in this case is whether the Employment Division will be suspended against Smith. Smith, written by the late Antonin Scalia, argued that the freedom of exercise clause in general does not exempt religious believers from adapting their behavior to neutral laws of general application. Philadelphia relies on Smith to defend the constitutionality of his practice of ruling out agencies that refuse to consider same-sex couple placements. And the Catholic authorities specifically request that Smith be repealed.
However, my suspicion is that the court will rule against Philadelphia while assuming Smith continues to be good law. The Philadelphia legal regime allows the city to make exceptions to its general rules. She has refused to grant exemptions for the Catholic charity while granting exemptions from other rules to other care service providers for various reasons. The Court could therefore decide to tighten the definition of neutrality which the application of Smith will trigger. Neutral rules would only become those that apply without exercising discretion, since such prophylaxis is necessary to prevent the possibility of discrimination against religious actors. In a recent article reviewing the law, then-professor Amy Coney Barrett, who is likely to have joined the court at the time of the dispute, cautioned against overriding precedents if a case can be resolved on other, narrower grounds. Her advice may well be heeded at an early stage in her term of office.
Texas versus California
The most important programmatic case is the recent challenge against the Affordable Care Act. The Trump administration has long wanted to repeal the law and supports the challenge. The problem in this case arises directly from the way in which NFIB previously confirmed part of the law against Sebelius. Chief Justice John Roberts’ control opinion found that the requirement to take out insurance, which would have been unconstitutional as a mandate, is still constitutional as a tax, as non-compliance results in a higher tax burden. But Congress then zeroed the “tax”, which recently resulted in a lower court ruling that part of the law unconstitutional because no money was being levied now.
Even if the mandate provision has become unconstitutional because it has no monetary consequences, the important practical question in the present case is whether the rest of the law is separable from this provision. The traditional test for the severability clause is whether Congress would have wanted the other provisions to come into effect without the unconstitutional provisions. The almost universal view of conservative and liberal commentators is that the rest of the law should and will be severed. Finally, when Congress changed the mandate provision, Congress did not repeal the rest of the law. In her confirmatory hearing, Amy Coney Barrett went through the traditional severability analysis in a way that implied she would likely sever the law, leaving Obamacare essentially unchanged. I predict an 8-1 or 7-2 vote in favor of separability.
If Texas vs California is the worst court with Amy Barrett, it will be harder for Democrats to convince ordinary voters that they have much to fear.
Assuming the case is settled in favor of maintaining the law, it will have greater political than legal implications. Senate Democrats spent much, if not most, of their time at the Barrett Hearing raising fears that Roberts Court would destroy the Affordable Care Act. If the case is overwhelmingly closed in favor of severability, even with a Biden presidency and a unified Democratic Congress, that can take much of the wind out of the sails when it comes to trial plans. If this case represents the worst of a court case with Amy Barrett, it becomes harder for Democrats to convince ordinary voters that they have much to fear.
Trump versus New York
Another important programmatic case concerns the census. President Trump has instructed the Commerce Secretary to include in his census report the number of resident aliens in each state so that the president can “where possible” decide not to include illegal aliens in the enumeration that determines the seating arrangements in Congress. Plaintiffs challenged the lawsuit on the grounds that it violated a Congressional law that implemented the constitutional provision on apportionment.
The Constitution stipulates that “the representatives shall be divided among the various states according to their number, counting the total number of persons in each state with the exception of the non-taxed Indians”. While there are no frivolous arguments that the First Congress understood people to mean more like residents, I think the administration is facing an uphill battle that will convince the Court of Justice that the original public meaning of “people” The constitution and the implementing provisions do not include anyone who permanently resides in the state, especially because the constitution uses the terms “citizen” and “resident” elsewhere, but here the more general term “person”. However, I assume that the court will not answer this question directly because either the plaintiffs have no position or the case is not ripe because the president has not yet taken action on the census. The judges might think that if Biden wins, this whole matter could go away.
Trump versus Sierra Club
In another programmatic case, which the Court took up just last week, it will determine whether the administration had legal authority to transfer funds for the construction of a border wall. While this case could put the constitutionality of broad delegations to reprogramming funds to the test, like the other major programmatic cases, I expect it will be a wet detonator. One question that has received little attention is whether the plaintiffs even have a cause in law to maintain their claim. Technically, plaintiffs must be in the “zone of interest” protected by the Transfer Act to complain about their violation. In other words, those who will sue the law must be the ones whose cause it is meant to advance. The statute, however, appears to protect the authority of Congress over the use of funds, not the environmental and aesthetic interests that the Sierra Club seeks to defend. So I assume that for technical reasons this case will be a win for the Trump administration if the president is re-elected, and that the case will be discussed if Biden wins.
Mnuchin v. Collins
Perhaps a more important case for the permanent structure of the government is the constitutionality of the Federal Housing Agency as an independent agency. Last term, the Court ruled in a 5-4 ruling that Congress could not protect the director of the Consumer Financial Protection Bureau from the removal of the president because that isolation violated the general principle of executive power that the president is in control must have over his subordinates. The only difference is that the CFPB has independent funding from the Federal Reserve, while the FHFA bases its funding on assessments from regulated companies rather than Federal Reserve subsidies. I think that distinction makes no difference and the Tribunal will allow the director of the FHFA to be dismissed by the president. The long-term consequence could be to open the bipartisan bodies, which the Court had previously admitted as independent from the President, to a constitutional attack. These earlier decisions are left as dilapidated barges in a sea of hostile precedent and can be overridden.
Torres v. Madrid
While the cases discussed above attract public attention, others may have long-term implications for the methodology of constitutional decision-making. One of them is Torres v Madrid, a case involving an incident in which police shot a woman who was trying to escape and then drove herself to a hospital. The constitutional question is whether these unsuccessful efforts to stop the woman constitute confiscation within the meaning of the fourth amendment. When “seizure” takes on its ordinary public meaning, the answer seems to be no: you wouldn’t say that a sniper captured someone by being wounded. But the seizure also has a general sheen, with physical exertion to stop a suspect, including those using items like maces, constituted a seizure. So the question in this case may turn as to whether the constitution is given ordinary or legal meaning – an issue that matters in originalist theory. This shows that not all constitutional cases of lasting consequence are on the front page.
Overall, this term does not become an enormous consequence. This is especially true if, as I predict, the Tribunal avoids directly invalidating the major acts of Congress or the President in the cases before it. Given the controversy in the rest of the political institutions and in culture as a whole, the judges are undoubtedly grateful for an act that will not bring them into the eye of the storm.