Tag: constitution

Trump Administration Litigation Tracker (Ongoing/Prospective/Resolved)

ONGOING

 

Census citizenship question challenge

CaseState of New York v US Department of Commerce, 18-CV-5025 (JMF)

Stage: On appeal before the Supreme Court

Question: Whether adding a citizenship question to the 2020 census is lawful?

Background: While preparing for the upcoming 2020 nation-wide census, the Trump Administration has planned to add a question about one’s citizenship to the list of questions the census will ask. Such a census takes place every ten years and affects how federal funding and seats in the House of Representatives are apportioned. The Trump Administration argues that the citizenship question is necessary in order to comply with the Voting Rights Act 1964 and that this question has been asked during all but one censuses from 1820 to 2000. However, Democratic states, along with some NGOs, such as ACLU, argue that the citizenship question would distort the outcome of the census by deterring illegal immigrants from participating. To this effect, they sued to prevent the Trump Administration from changing the 2020 census questions. On 5 January 2019, the District Court for the Southern District of New York ruled in State of New York v US Department of Commerce, 18-CV-5025 (JMF) that Commerce Secretary’s decision to add the citizenship question violated the Administrative Procedure Act 1946 governing the creation of new regulations by administrative agencies. The Court held that the rationale for adding the citizenship question was ‘pretextual’ and the decision was made in violation of the Administrative Procedures Act 1946 because it had failed to ‘consider all important aspects of a problem’ as required by the Act, implying also that the true intentions behind the citizenship question was in fact to deter participation (Bloomberg). Ordinarily, the decision of the District Court for the Southern District of New York would have to be appealed to the US Court of Appeals for the 2nd Circuit. However, the Trump Administration petitioned the Supreme Court to hear the appeal bypassing the Court of Appeals. The Supreme Court agreed given that census questionnaires must be ready in the summer of 2019 and with an ordinary appellate procedure, it would not have been possible to meet this deadline.

Prospects: The Supreme Court will hear the case in April 2019 and the ruling is expected to be delivered in June 2019, before the Justices adjourn for the summer (CNN). It is not clear how the Court will rule as the case involves technical administrative issues of the Administrative Procedure Act 1946. If the Trump Administration is able to establish that all internal procedures have been dully followed, the Court will be rather unlikely to find the question unlawful on ‘pretextual’  grounds.

Significance: The case of State of New York v US Department of Commerce,18-CV-5025 (JMF) will have a huge impact on the appropriation of federal funding and seats in the House of Representatives among States as, under US Constitution, Article 1, Clause 3, those depend on States population numbers. ACLU claims that adding the citizenship question would stop about 6.5 million people from entering their details in the census which could lead to States with a large portion of illegal immigrants, such as California, loosing billions of dollars in federal funding as well as between one and three seats in the House of Representatives (The Hill).

 

2nd Amendment challenge

CaseNew York State Rifle & Pistol Association Inc. v. City of New York, No. 15-638 (2d Cir. 2018)

Stage: On appeal before the Supreme Court

Question: Does the 2nd Amendment protect the right of gun owners to transport their firearms outside their homes?

Background: So far the Supreme Court’s jurisprudence on the 2nd Amendment is limited to two cases only. In 2008, the Court ruled in District of Columbia v. Heller, 554 U.S. 570 2008 that the 2nd Amendment protected the individual right to possess firearms within the confines of one’s home for the purposes of self-defence. In 2010, the rule was extended in McDonald v. Chicago, 561 U.S. 742 2010 to apply to States as well. However, since then, the Court has taken very few cases concerning the scope of the 2nd Amendment (but see e.g. Caetano v. Massachusetts, 577 U.S. (2016)). This has left at least two big issues largely unresolved. First, what types of firearms are covered by the 2nd Amendment? Secondly, does the 2nd Amendment cover public arena outside one’s home? Both issues have been hotly litigated over, especially in the Blue States. On 24 July 2018, a three-judge panel of the Court of Appeals for the 9th Circuit ruled, in the case of Young v State of Hawaii No. 12-17808, that the 2nd Amendment did in fact protect the right to bear arms in public. This is in spite of the 2016 decision of the same Court in Peruta v. County of San Diego, 824 F.3d 919, 939 (2016), which, sitting en banc, upheld a complete ban on carrying any firearms outside one’s home. However, the latter case was distinguished on the grounds that it was concerned with a concealed-carry while the former was concerned with an open-carry. Regardless, the 2nd Amendment jurisprudence of the 9th Circuit stands in open opposition to other Circuits, such as the 7th Circuit which held in 2013, in the case of Moore v Madigan, USDC 11-CV-405-WDS, 11-CV-03134; 7th Cir. 12-1269, 12-1788, that a complete ban on concealed carry was unconstitutional.

Prospects: There is a very strong chance the Supreme Court will hold that the 2nd Amendment protects the right of gun owners to transport their firearms to various locations for lawful purposes. The ruling, however, is likely to be narrow in scope and might not address the question of whether the 2nd Amendment protects the right to carry arms outside one’s home in general, whether by way of open or concealed carry. Out of the five Justices constituting the majority in District of Columbia v. Heller,554 U.S. 570 2008, two (Justices Kennedy and Scalia) are no longer on the bench. However, Justices Gorsuch and Kavanaugh who have replaced them, both have a strong record on the 2nd Amendment (e.g. Heller v. District of Columbia, No. 10–7036. 2011; Peruta v. County of San Diego, 824 F.3d 919, 939 (2016) dissenting from the denial of certiorari).

Significance: The case of New York State Rifle & Pistol Association Inc. v. City of New York, No. 15-638 (2d Cir. 2018) will have a huge impact on the operation of the right to bear arms under the 2nd Amendment. So far the Supreme Court has recognised the right to possess and use firearms in self-defence at home. This case might expand this right to at least some public areas in at least some circumstances.

 

ObamaCare challenge

CaseTexas v the United States, No. 4:18-cv-00167-O

Stage: On appeal before the Court of Appeals for the 5th Circuit

Question: Whether the Affordable Care Act 2010 (ObamaCare), as amended by the Tax and Jobs Act 2017, is unconstitutional (in part or in entirety)?

Background: So far ObamaCare has withstood, albeit not in its entirety, several challenges before the Federal Courts. In 2012, the US Supreme Court ruled in the case of National Federation of Independent Business v. Sebelius, 567 U.S. 519 2012 that, inter alia, although the Individual Mandate (i.e. the requirement that all individuals buy health insurance plans) was not a valid exercise of the Congress’s power to regulate inter-state commerce, the penalty for its breach could be read as a tax and thereby be a valid exercise of the Congress’s taxation power instead. This is because the so called ‘penalty’ for breaching the Individual Mandate was limited to a financial fee processed by the IRS together with individuals’ income taxes. This ‘saving construction’ persuaded Chief Justice Roberts who joined the four liberal Justices on the Court and voted to uphold the Individual Mandate. However, the Tax and Jobs Act 2017 passed by Congress in 2017 eliminated this tax/penalty while leaving the Individual Mandate as such intact. In those circumstances, several Red States sued in a Texas federal District Court again claiming that the elimination of the tax had rendered the Individual Mandate unconstitutional as now, in the absence of any tax attached to it, it could only be construed as an exercise of the Congress’s power to regulate inter-state commerce and that would violate the holding of National Federation of Independent Business v. Sebelius, 567 U.S. 519 2012. On 14 December 2018, the District Court issued its judgment. Judge O’Connor analysed the effect of the elimination of the tax attached to the Individual Mandate by the Tax and Jobs Act 2017 and found that, in the absence of any tax, the Individual Mandate could not possibly fall within the Congress’s taxation power. The Court struck down the whole of ObamaCare holding that the Individual Mandate was inseverable from the rest of the law. The House of Representatives, under Democratic control, intervened before the Court to defend that law and appealed the ruling to the Court of Appeals for the 5th Circuit. Initially, the Trump Administration, argued that parts of ObamaCare  were severable from the Individual Mandate and should be upheld, however, on 26 March 2019, the Department of Justice amended its stance petitioning the Court of Appeals to uphold the District Court’s ruling in its entirety, ie, strike down the whole of ObamaCare (CNN).

Prospects: There is a very strong chance that the Court of Appeals for the 5th Circuit (with 11 Republican-appointees and 5 Democrat-appointees) will strike down the Individual Mandate as unconstitutional. However, the question of severibility is more complex. The Court might declare only parts of the law inseverable from the Individual Mandate (e.g. community ratings) and uphold the rest. In any event, the case is bound to reach the Supreme Court regardless what the Court of Appeals decides. Before the Supreme Court, the situation is even less straightforward. When it comes to ObamaCare, Chief Justice Roberts is undoubtedly the Swing Vote. He has upheld ObamaCare at least twice already and it is highly unlikely he will let the law fall in its entirety this time. There is a decent chance the Individual Mandate will be stuck down but whether it will drag any other parts of the law with it, is impossible to tell.

Significance: The case of Texas v the United States, No. 4:18-cv-00167-O will have a huge impact on the shape of federal powers, as enumerated under Article I, Section 8 of the US Constitution. It will determine the limits of the Congress’s taxation power and once again discuss the limits of the power to regulate commerce. Furthermore, the case will provide instruction on the issue of severibility of Congressional statutes. Beyond that, the potential invalidation of ObamaCare would completely transform the healthcare market.

 

DACA rescission challenge

CaseRegents of the University of California, et al. v. United States Department of Homeland Security, et al., No. 3:17-cv-05211 (N.D. Cal.)

Stage: On appeal before the Court of Appeal for the 9th Circuit

Question: Whether the rescission of DACA is lawful and whether DACA is unconstitutional?

Background: Deferred Action for Childhood Arrivals (DACA) was announced by President Obama via an Executive Memorandum in 2012 to allow for a temporary lawful stay of illegal immigrants brought to the US as children. The policy was introduced in response to Congress not being able to pass the DREAM Act which would put the policy on a statutory footing. Since then, the policy has been challenged in the Federal Courts several times. A lawsuit against the original policy was dismissed on procedural grounds in 2013 (Fox News) but, as President Obama attempted to extend the programme, the expansion was blocked by the US Supreme Court in the case of United States v. Texas579 U.S. (2016) (although in a per curiam decision concerning an interim injunction with the crux of the matter soon becoming moot). The Trump Administration announced in 2017 that it would rescind the DACA program altogether as incompatible with federal immigration laws on the books. This was challenged in Regents of the University of California, et al. v. United States Department of Homeland Security, et al., No. 3:17-cv-05211 (N.D. Cal.). At the same time, Texas, along with other States, once again challenged the constitutionality of DACA before the District Court for the Southern District of Texas in Texas, et al. v. United States, No. 18-00068 (S.D. Tex. May 1, 2018). The case is still pending before the Court.

Prospects: The constitutionality of DACA will undoubtedly be eventually resolved by the Supreme Court. It is, however, not clear whether the Court will address the constitutionality of the programme as such when considering whether its rescission was lawful (Regents of the University of California, et al. v. United States Department of Homeland Security, et al., No. 3:17-cv-05211 (N.D. Cal.)). If not, this question will likely be resolved in Texas, et al. v. United States, No. 18-00068 (S.D. Tex. May 1, 2018), when it finally reaches the Supreme Court. At that point, Justices Gorsuch, Thomas, Alito and Kavanaugh are likely to take a narrow view of executive power which must necessarily lead them to the conclusion that DACA was an attempt by the Obama Administration to circumvent Congress which was unable to pass the necessary legislation (DREAM Act) and therefore constituted an executive overreach. Consequently, the issue will ultimately come down to Chief Justice Roberts as the deciding vote.

Significance: The case of Regents of the University of California, et al. v. United States Department of Homeland Security, et al., No. 3:17-cv-05211 (N.D. Cal.) will have a huge impact on the shape of executive power. It will determine the limits of inherent Presidential powers vis-a-vis statutes. Beyond that, the potential invalidation of DACA would completely transform the immigration system and put millions of illegal immigrants at risk of deportation.

 

Affirmative action challenge

Case: Students for Fair Admissions v Harvard

Stage: Pending before the District Court for the District of Massachusetts

Question: Whether affirmative action constitutes unlawful discrimination under the Equal Protection clause of the 14th Amendment?

Background: On 15 October 2018, a lawsuit against the Harvard University alleging race discrimination went on trial before a federal District Court in Boston. The lawsuit was brought by the Students for Fair Admissions founded by anti-affirmative action activist Edward Blum and is supported by the Trump Administration. Technically, the constitutionality of affirmative action has already been confirmed on several occasions, for the first time in 1978 in the case of Regents of the University of California v. Bakke, 438 U.S. 265 1978, then in 2003 in Grutter v. Bollinger, 539 U.S. 306 2003 and most recently in 2016 in the case of Fisher v. University of Texas, 579 U.S. (2016) (Fisher II). However, even so upheld, affirmative action is legally limited only to situations where no race-neutral solutions would be effective in increasing the number of minority students accepted by a University. The lawsuit now alleges that the Harvard University has not properly considered race-neutral admission schemes before factoring race in its application process (Reuters). In this type of lawsuits, the burden of proof rests on a University to justify the use of race as a consideration in its admission process. In any event, if this cases proceeds to the US Supreme Court, the Court might rule on the constitutionality of affirmative action in general.

Prospects: There is a very strong chance that the Supreme Court will declare affirmative action unconstitutional. The recent decisions on this issue have been extremely closely decided and Justice Kennedy has been the one casting the deciding vote. Now that Justice Kennedy has been replaced by Judge Kavanaugh, the Court might easily swing the other way. This is even more likely given that, while upholding the practice in Fisher v. University of Texas579 U.S. (2016), the Court held that Universities must continue to review their affirmative action practices to ascertain whether they are still required. With Justice Kennedy gone, the five conservative Justices might simply come to a conclusion that there is no longer any need to consider race in admission processes. When it comes to affirmative action, Chief Justice Roberts has always consistently voted to declare it unconstitutional and it would be surprising for him to suddenly switch sides.

Significance: The case of Students for Fair Admissions v Harvard will have a huge impact on the operation of the Equal Protection clause of the 14th Amendment and the understanding of what constitutes racial discrimination. Beyond that, the potential invalidation of academic admission processes based on affirmative action would completely transform the basis on which universities accept new students.

 

Emergency declaration challenge

Case: State of California et al v. Trump et al

Stage: Pending before the District Court for the Northern District of California

Question: Whether President Trump’s national emergency declaration on the US-Mexico border wall is lawful under the National Emergencies Act 1976?

Background: On February 15, 2019, President Trump declared a National Emergency Concerning the Southern Border of the United States (Proclamation 9844) under the National Emergencies Act 1976 to channel funds for the construction of a wall at the US-Mexico border. The Declaration came after President Trump had been unable to obtain $5.7 billion in funding for the wall in the 2019/2020 budget due to Congress refusing his requests. The disagreement between President Trump, Republican Senate and the Democratic House of Representatives, preceding the Declaration, led to a 35 day-long government shutdown (the longest in the US history), which ended with Congress passing a bipartisan funding bill containing $1.375 billion for new fencing on 55 miles of the border. Immediately after the budget was passed by Congress and accepted by President Trump, he issued Proclamation 9844 redirecting $8 billion in previously-agreed expenditure to build the wall instead. The funding comes from planned military construction expenditures ($3.6 billion), the Department of Defense’s drug interdiction activities ($2.5 billion) and Treasury’s forfeiture funds ($600 million). In response, Congress passed, under the National Emergencies Act 1976, a Resolution seeking to nullify Proclamation 9844, however, President Trump vetoed it therefore leaving Proclamation 9844 in effect (Reuters). At this point, California, together with other States, sued in State of California et al v. Trump et al to stop Proclamation 9844 as unlawful under the National Emergencies Act 1976 and therefore in violation of the Appropriation Clause contained in Article I, Section 9 of the US Constitution. The Appropriation Clause stipulates that Congress is the sole body responsible for allocating funds and Presidents cannot unilaterally channel funding for any purpose they want. However, in the National Emergencies Act 1976, Congress empowered Presidents to take unilateral executive action (including funding allocation) in 136 distinct areas in times of  ’emergency’. Unfortunately, the legislation fails to define ’emergency’ and therefore seems to leave a wide discretion to the executive branch. Since the National Emergencies Act 1976 was enacted, a number of national emergencies have been declared (Carter (2); Reagan: (6); H.W. Bush (4); Clinton (17); W. Bush (12); Obama: (13); Trump (4) (Snopes).

Prospects: It is highly likely that President Trumps Emergency Declaration will be declared unlawful in the District Court and the Court of Appeals for the 9th Circuit which in recent years have tended to side with Democratic challengers. No doubt the case will ultimately proceed to the Supreme Court. However, it is unclear how the Justices might vote on this issue.

Significance: The case of State of California et al v. Trump et al will have a huge impact on the limits of Presidential emergency powers under the National Emergencies Act 1976. It will also discuss the operation of the Appropriation Clause and the rules regarding the allocation of funding. Beyond that, the case can prevent the construction of the wall at the border with Mexico which constitutes a crucial element of President’s Trump immigration policy.

 

Transgender ban challenge

CaseKarnoski v. Trump, 2:17-cv-01297-MJP

Stage: Pending before the District Court for the Western District of Washington

Question: Whether President Trump’s Memorandum preventing people diagnosed with gender dysphoria from serving in the US military is constitutional?

Background: On 23 March 2018, President Trump issued the Presidential Memorandum on Military Service by Transgender Individuals reversing President Obama’s policy of encouraging transgender military personnel to be open about their sexuality. The Memorandum is a variation of the traditional “Don’t Ask, Don’t Tell” policy. It allows transgender people to join the military provided they identify in line with their biological sex and are not diagnosed with gender dysphoria. The Memorandum also allows current transgender military personnel to continue to serve, however, unlike under President’s Obama, the military will not fund their transgender surgeries (Reason). The Memorandum was challenged in Karnoski v. Trump, 2:17-cv-01297-MJP before the District Court for the Western District of Washington on the grounds that it was issued contrary to the Due Process Clause of the 5th Amendment as a denial of equal protection by the federal government and to the 1st Amendment as violation of the right to free expression and association. While the merits of the case were being considered, the Court issued an injunction which was appealed to the Court of Appeals for the 9th Circuit. The Court upheld it which was appealed against to the Supreme Court which voted 5-4 to lift the stay and allow the Memorandum to go into effect. The merits of the challenge are still being considered by the District Court.

Prospects: Given the decision of the Supreme Court to lift the injunction and allow the Memorandum to go into effect while the merits of the case were being considered by the District Court, there is a strong chance that the Memorandum will be ultimately upheld, if not by lowers Courts, then by the Supreme Court.

Significance: The case will have a huge impact on the operation of the 1st Amendment (freedom of expression/association), 5th Amendment (Due Process Clause) and the 14th Amendment (Due Process Clause & Equal Protection Clause) in relation to transgender people. Beyond that, the decision will have some impact on the position of transgender personnel currently serving in the US military and potential new recruits.

 

Sanctuary cities funding challenge

CaseCity and County of San Francisco v. Trump or San Francisco v. Trump, No. 3:17-cv-00485 (N.D.Cal. 2017)

Stage: Pending before the District Court for the Northern District of California

Question: Whether the withdrawal of funding from sanctuary cities is lawful and whether sanctuary policies are constitutional?

Background: The question of funding for sanctuary cities is inextricably linked with the question of lawfulness of sanctuary policies. On 25 January 2017, President Trump issued Executive Order 13768 stating that sanctuary jurisdictions which refuse to comply with immigration enforcement would not receive federal grants (except where necessary for law enforcement purposes as determined by the Attorney General or Secretary of Homeland Security). In response, San Francisco sued the Trump Administration alleging that the withdrawal of funding violated the 10th Amendment which states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” While the case was being considered on its merits, the District Court issued a nationwide preliminary injunction against Executive Order 13768 which was appealed by the Trump Administration to the Court of Appeals for the 9th Circuit. The Court of Appeals upheld the injunction but struck down its nationwide application and remanded the issue back to the District Court for further consideration. The question of constitutionality of sanctuary polices has never been answered by the Supreme Court. However, in its 10th Amendment jurisprudence, the Court has developed the anti-commandeering doctrine which stipulates that the Federal Government cannot compel States to enforce federal law. The doctrine has been applied to prevent the Federal Government from forcing States to take ownership of radioactive waste (New York v. United States, 505 U.S. 144 (1992)) and conduct background checks on people attempting to purchase handguns (Printz v. United States, 521 U.S. 898 (1997)). It was also used to strike down federal legislation preventing States from legalising sport betting (Murphy v. National Collegiate Athletic Association, No. 16-476, 584 U.S. (2018)). This doctrine is also relied on by States to justify their refusal to cooperate with the Federal Government in relation to immigration enforcement. On the other hand, the Trump Administration relies on the Supremacy Clause under Article VI, Clause 2 of the US Constitution which stipulates that “this Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Under the Supremacy Clause, State statutes, jurisprudence and actions cannot violate Federal law. In its Supremacy Clause jurisprudence, the Supreme Court ruled that a state law could be found unconstitutional even where it is not in direct conflict with a federal law but “is an obstacle to the accomplishment and execution of Congress’s full purposes and objectives” (Crosby v. National Foreign Trade Council530 U.S. 363 (2000)).

Prospects: The current Supreme Court seems to favour the concept of federalism and therefore usually recognises the importance of State rights. If the anti-commandeering doctrine is found to apply to sanctuary policies, the Court will likely uphold this practice and strike down any attempt to withdraw funding from such jurisdictions. It is not, however, clear whether the doctrine does in fact apply and how it interacts with the Supremacy Clause when it comes to immigration enforcement.

Significance: The case of City and County of San Francisco v. Trump or San Francisco v. Trump, No. 3:17-cv-00485 (N.D.Cal. 2017) will have a huge impact on the concept of federalism and the operation of the 10th Amendment. It might transform the legal understanding of State rights and Federal power. Beyond that, the potential invalidation of sanctuary policies might put millions of illegal immigrants at risk of deportation.

 

PROSPECTIVE

1. A lawsuit by the House of Representatives challenging Attorney General Barr’s refusal to provide the House Judiciary Committee with a full and underacted copy of the Mueller Report.

2. A lawsuit by the House of Representatives challenging Treasury Secretary Mnuchin’s refusal to provide the House Ways and Means Committee with President Trump’s tax returns for the last six years.

3. A lawsuit against legislation of Kentucky, Mississippi and Ohio (and potentially other States) prohibiting abortion once the foetus’s heartbeat can be detected.

 

RESOLVED

1. A lawsuit against President Trump’s Executive Order 13780 (travel ban) limiting entry to the US from Iran, Libya, Syria, Yemen, Somalia, North Korea and Venezuela (Trump v. Hawaii, No. 17-965, 585 U.S. (2018)).

ObamaCare Ruled Unconstitutional (Again)

In August 2018, The Jurist’s Corner speculated that the question of the constitutionality of the Affordable Care Act 2010 (ACA or ObamaCare) might be heading towards the US Supreme Court again in 2019. On 14 December 2018, a District Court for the Northern District of Texas held, in the case of Texas v the United States No. 4:18-cv-00167-O that the ObamaCare, in its entirety, was unconstitutional. This is yet another time the ACA is ruled unconstitutional, but it is the first time since Congress passed the Tax and Jobs Act 2017 eliminating the tax/penalty for a failure to comply with the ObamaCare’s Individual Mandate (i.e. the requirement to buy a health insurance).

So far the ObamaCare has withstood, albeit not in its entirety, several challenges before the federal courts. In 2012 the US Supreme Court ruled in the case of National Federation of Independent Business v. Sebelius 567 U.S. 519 2012 that, inter alia, although the Individual Mandate was not a valid exercise of the Congress’s power to regulate inter-state commerce, the penalty for its breach could be read as a tax and thereby be a valid exercise of the Congress’s taxation power instead. This is because the so called ‘penalty’ for breaching the Mandate was limited to a financial fee processed by the IRS together with individuals’ income taxes. This saving construction persuaded Chief Justice Roberts who joined the 4 liberal Justices on the Court and voted to uphold the Individual Mandate.

However, the Tax and Jobs Act 2017 passed by Congress in 2017 eliminated this tax/penalty while leaving the Individual Mandate as such intact. In those circumstances, several Red States sued in a Texas federal District Court again claiming that the elimination of the tax had rendered the Individual Mandate unconstitutional as now, in the absence of any tax attached to it, it could only be construed as an exercise of the Congress’s power to regulate inter-state commerce and that would violate National Federation of Independent Business v. Sebelius 567 U.S. 519 2012. The lawsuit went even further claiming that the Individual Mandate was inseverable from the rest of the law, or at least from its certain parts, such as the community rating. As such, the lawsuit argued that in case of finding the Individual Mandate unconstitutional, the Court should strike down the rest of the ObamaCare with it. Shortly afterwards, the Trump Administration announced that it would not to defend the lawsuit, so several Red States led by California intervened in the case submitting briefs in defence of the ACA (The Atlantic).

On 14 December 2018, the Court issued its judgment. Judge O’Connor analysed the effect of the elimination of the tax attached to the Individual Mandate by the Tax and Jobs Act 2017 and found that in the absence of any tax, the Mandate could not possibly fall within the Congress’s taxation power (pp20-27). Next, Judge O’Connor once again considered the possibility of the Individual Mandate being a valid exercise of the power to regulate inter-state commerce but rejected it on the grounds of the Majority Opinion in National Federation of Independent Business v. Sebelius 567 U.S. 519 2012 (pp27-34). Ultimately, “the Court [found that] the Individual Mandate is no longer fairly readable as an exercise of Congress’s Tax Power and continues to be unsustainable under Congress’s Interstate Commerce Power. The Court therefore finds the Individual Mandate, unmoored from a tax, is unconstitutional...” (p34).

At this point, the main question became whether the Individual Mandate was severable from the rest of the ObamaCare so that the rest of the ACA could remain in force. Judge O’Connor examined the approach of the Supreme Court to the question of the severability of the Individual Mandate in both National Federation of Independent Business v. Sebelius 567 U.S. 519 2012 and King v. Burwell 576 U.S. ___ (2015) and summarised:

“The ACA’s text and the Supreme Court’s decisions in NFIB and King thus make clear the Individual Mandate is inseverable from the ACA. As Justice Ginsburg explained, “Congress could have taken over the health-insurance market by establishing a tax-and-spend federal program like Social Security.” Id. at 595 (Ginsburg, J., joined by Breyer, Kagan, and Sotomayor, JJ.). But it did not. “Instead of going this route, Congress enacted the ACA . . . To make its chosen approach work, however, Congress had to use . . . a requirement that most individuals obtain private health insurance coverage.” Id. (citing 26 U.S.C.§ 5000A). That requirement—the Individual Mandate—was essential to the ACA’s architecture. Congress intended it to place the Act’s myriad parts in perfect tension. Without it, Congress and the Supreme Court have stated, that architectural design fails. “Without a mandate, premiums would skyrocket. The guaranteed issue and community rating provisions, in the absence of the individual mandate, would create an unsustainable death spiral of costs, thus crippling the entire law.” BLACKMAN, supra note 3, at 147; accord NFIB, 567 U.S. at 597 (Ginsburg, J., joined by Breyer, Kagan, and Sotomayor, JJ.) (noting the mandate was essential to staving off “skyrocketing insurance premium costs”). Congress simply never intended failure.” (p47)

Next, Judge O’Connor analysed the potential effect of retaining the rest of ObamaCare, in the absence of the Individual Mandate, on other major provisions of the ACA:

Even if the Court preferred to ignore the clear text of § 18091 and parse the ACA’s provisions one by one, the text- and precedent-based conclusion would only be reinforced: Upholding the ACA in the absence of the Individual Mandate would change the “effect” of the ACA “as a whole.” See Alton, 295 U.S. at 362. For example, the Individual Mandate reduces the financial risk forced upon insurance companies and their customers by the ACA’s major regulations and taxes. See 42 U.S.C. §§ 18091(2)(C), (I). If the regulations and taxes were severed from the Individual Mandate, insurance companies would face billions of dollars in ACA-imposed regulatory and tax costs without the benefit of an expanded risk pool and customer base—a choice no Congress made and one contrary to the text. See NFIB, 567 U.S. at 698 (joint dissent); 42 U.S.C. § 18091(2)(C) and (I).” (p48)

“Similarly, the ACA “reduce[d] payments by the Federal Government to hospitals by more than $200 billion over 10 years.” NFIB, 567 U.S. at 699 (joint dissent). Without the Individual Mandate (or forced Medicaid expansion), hospitals would encounter massive losses due to providing uncompensated care. See BLACKMAN, supra note 3, at 2–4 (discussing the freerider and cost-shifting problems in healthcare).” (p48)

“The story is the same with respect to the ACA’s other major provisions, too. The ACA allocates billions of dollars in subsidies to help individuals purchase a government-designed health-insurance product on exchanges established by the States (or the federal government). See, e.g., 26 U.S.C. § 36B; 42 U.S.C. § 18071. But if the Individual Mandate falls, and especially if the pre-existing-condition provisions fall, upholding the subsidies and exchanges would transform the ACA into a law that subsidizes the kinds of discriminatory products Congress sought to abolish at, presumably, the re-inflated prices it sought to suppress.” (pp48-49)

“Nor did Congress ever contemplate, never mind intend, a duty on employers, see 26 U.S.C. § 4980H, to cover the “skyrocketing insurance premium costs” of their employees that would inevitably result from removing “a key component of the ACA.” (Ginsburg, J., joined by Breyer, Kagan, and Sotomayor, JJ.). And the Medicaid-expansion provisions were designed to serve and assist fulfillment of the Individual Mandate and offset reduced hospital reimbursements by aiding “low-income individuals who are simply not able to obtain insurance.” Id. at 685 (joint dissent).” (p49)

“The result is no different with respect to the ACA’s minor provisions. For example, the Intervenor Defendants assert that, “[i]n addition to protecting consumers with preexisting medical conditions, Congress also enacted the guaranteed-issue and community-rating provisions to reduce administrative costs and lower premiums.” Intervenor Defs.’ Resp. 35, ECF No. 91; see also id. at 34 (“Congress independently sought to end discriminatory underwriting practices and to lower administrative costs.”). But Congress stated explicitly that the Individual Mandate “is essential to creating effective health insurance markets that do not require underwriting and eliminate its associated administrative costs.” 42 U.S.C. § 18091(2)(J) (emphasis added). At any rate, to the extent most of the minor provisions “are mere adjuncts of the” now-unconstitutional Individual Mandate and nonmandatory Medicaid expansion, “or mere aids to their effective execution,” if the Individual Mandate “be stricken down as invalid” then “the existence of the [minor provisions] becomes without object.” Williams, 278 U.S. at 243.” (pp49-50).

On that basis Judge O’Connor held:

“…Congress was explicit: The Individual Mandate is essential to the ACA, and that essentiality requires the mandate to work together with the Act’s other provisions. See 42 U.S.C. § 18091. If the “other provisions” were severed and preserved, they would no longer be working together with the mandate and therefore no longer working as Congress intended. On that basis alone, the Court must find the Individual Mandate inseverable from the ACA. To find otherwise would be to introduce an entirely new regulatory scheme never intended by Congress or signed by the President.” (pp47-48).

“In the face of overwhelming textual and Supreme Court clarity, the Court finds “it is ‘unthinkable’ and ‘impossible’ that the Congress would have created the” ACA’s delicately balanced regulatory scheme without the Individual Mandate. Alton, 295 U.S. at 362. The Individual Mandate “so affect[s] the dominant aim of the whole statute as to carry it down with” it. Id. To find otherwise would “rewrite [the ACA] and give it an effect altogether different from that sought by the measure viewed as a whole.” Alton, 295 U.S. at 362. Employing such a strained view of severance would be tantamount to “legislative work beyond the power and function of the court.” Wallace, 259 U.S. at 70.” (pp50-51)

Finally, Judge O’Connor rejected the argument that in 2017, when passing the Tax and Jobs Act 2017, Congress indicated that the Individual Mandate was severable from the rest of the ObamaCare because it did not repeal the rest of the ACA while eliminating the tax attached to the Individual Mandate (pp52-54). In conclusion, the Court held that:

“In some ways, the question before the Court involves the intent of both the 2010 and 2017 Congresses. The former enacted the ACA. The latter sawed off the last leg it stood on. But however one slices it, the following is clear: The 2010 Congress memorialized that it knew the Individual Mandate was the ACA keystone, see 42 U.S.C. § 18091; the Supreme Court stated repeatedly that it knew Congress knew that, see, e.g., NFIB, 567 U.S. at 547 (Roberts, C.J.) (citing 42 U.S.C. § 18091(2)(F)); King, 135 S. Ct. at 2487 (citing 42 U.S.C. § 18091(2)(I)); and knowing the Supreme Court knew what the 2010 Congress had known, the 2017 Congress did not repeal the Individual Mandate and did not repeal § 18091.” (pp54-55)

The ruling is now bound to be appealed to the Court of Appeals for the Fifth Circuit and then probably to the US Supreme Court. The appeal proceedings will likely focus on the question of the severability of the Individual Mandate from the rest of the ObamaCare. With the new judgment and the prospects of future appeals, it seems that the ObamaCare has now become the most litigated issue of our time.

UK Supreme Court Aligns with US Supreme Court on ‘Gay Cake’

On 10 October 2018, the UK Supreme Court unanimously ruled in the case of Lee v Ashers Baking Company Ltd (Northern Ireland) [2018] UKSC 49 that the business’s refusal to bake a cake with a message supporting gay marriage was completely lawful and not contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998 (made under the Northern Ireland Act 1974) or the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (made under the Equality Act 2006), as claimed by the Claimant. Writing for the Court, Lady Hale argued that “obliging a person to manifest a belief which he does not hold has been held to be a limitation on his article 9(1) rights” under the European Convention on Human Rights (Buscarini v San Marino (1999) 30 EHRR 208) and that “the freedom not to be obliged to hold or to manifest beliefs that one does not hold is also protected by article 10 of the Convention” (RT (Zimbabwe) v Secretary of State for the Home Department [2012] UKSC 38; [2013] 1 AC 152) [at 50-2]. However, Lady Hale expressly distinguished between refusing to serve a customer based on his or her sexual orientation and forcing a business owner to prepare a product promoting a message he or she profoundly disagreed with [at 55]. Consequently, the Court was cautious not to create the impression that the ruling was a free pass to discriminate against homosexual consumers. Ultimately, the Court was of the opinion that forcing Ashers Baking Company to supply the requested cake would be a disproportionate limitation on the exercise of their rights to free speech and religion under Articles 9 and 10 of the European Convention on Human Rights.

The decision of the UK Supreme Court comes not long after the US Supreme Court ruled in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. (2018) that the decision of the Colorado Civil Rights Commission forcing a baker to supply a cake with an analogous message supporting gay marriage was unlawful. In June 2018, the Court held 7-2 (over the dissent of Justice Ginsburg and Justice Sotomayor) that in considering the case, the Commission had been guided by a prejudice towards religion and therefore its decision violated the First Amendment. The case was therefore decided on very narrow grounds and does not definitely resolve the question whether there is a right under the First Amendment to decline to provide a service on sincerely held religious grounds. Only Justice Thomas in his concurrent opinion argued that the Cakeshop owner was fully within his right to refuse to prepare a cake which would violate his religious beliefs. It seems that this question is bound to return to the US Supreme Court in the near future. In fact, shortly after the ruling, in August 2018, the Masterpiece Cakeshop owner sued the State of Colorado in a federal District Court claiming religious persecution involving another incident of a refusal of service, this time in relation to a cake with a transgender message (The Denver Post).

The issue of ‘gay cakes’ has become symbolic of a wider legal debate both in the United Kingdom and the United States on circumstances in which a business can refuse to serve a customer on the grounds of religious beliefs. The two recent judgments by the highest courts of both countries seem to tilt towards prioritising religious liberty over non-discrimination. It remains to be seen whether this will become a trend in both courts’ jurisprudence and to what degree their reasoning will overlap. Interestingly, in its ruling, the UK Supreme Court expressly relied on the approach taken by the US Supreme Court in its general First Amendment jurisprudence:

The respondent suggests that the jurisprudence in relation to “compelled speech” has been developed principally in the United States as a result of the First Amendment. There is indeed longstanding Supreme Court authority for the proposition that “the right to freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all”: see Wooley v Maynard 430 US 705, 714, per Burger CJ, citing Board of Education v Barnette (1943) 319 US 624, 633-634. But in the light of Laramore and RT (Zimbabwe) , and the Strasbourg case law on which they are based, it cannot seriously be suggested that the same principles do not apply in the context of articles 9 and 10 of the Convention.” [at 53]

On other hand, and in somewhat usual manner, the Ashers Baking Company judgment of the UK Supreme Court contains a postscript where Lady Hale addresses the Masterpiece Cakeshop judgment of the US Supreme Court:

“After the hearing in this case, while this judgment was being prepared, the Supreme Court of the United States handed down judgment in Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission (unreported) 4 June 2018. The facts are not the same. A Christian baker refused to create a wedding cake for a gay couple because of his opposition to same sex marriage. There is nothing in the reported facts to suggest that the couple wanted a particular message or decoration on their cake. The Colorado Civil Rights Commission, upheld by the Colorado courts, held that the baker had violated the Colorado law prohibiting businesses which offered sales or services to the public from discrimination based on sexual orientation. The baker complained that this violated his First Amendment rights to freedom of speech and the free exercise of his religion… The majority recognised that businesses could not generally refuse to supply products and services for gay weddings; but they acknowledged that the baker saw creating a wedding cake as an expressive statement involving his First Amendment rights; and contrasted the treatment that he had received, which they perceived as hostile, from the favourable treatment given to three bakers who had refused to produce cakes with messages demeaning gay persons and gay marriages. Justices Ginsburg and Sotomayor, in dissent, drew a clear distinction between an objection to the message on the cake and an objection to the customer who wanted the cake. The other bakery cases had been clear examples of an objection to the message rather than an objection to the customer. In their view the objection in this case was to the customer and therefore a violation. Justices Kagan and Breyer, who voted with the majority on the lack of neutrality point, also accepted that the Commission could have based its reasoning on that distinction – the other bakers would have refused to make cakes with the demeaning messages for anyone, whereas this baker had refused to make this cake because it was a gay couple who wanted it. Justices Thomas and Alito, on the other hand, considered that to make a cake for a gay wedding was expressive in itself and thus compelling it required strict scrutiny. Justice Gorsuch would also not have distinguished between a cake with words and a cake without. The important message from the Masterpiece Bakery case is that there is a clear distinction between refusing to produce a cake conveying a particular message, for any customer who wants such a cake, and refusing to produce a cake for the particular customer who wants it because of that customer’s characteristics. One can debate which side of the line particular factual scenarios fall. But in our case there can be no doubt. The bakery would have refused to supply this particular cake to anyone, whatever their personal characteristics. So there was no discrimination on grounds of sexual orientation. If and to the extent that there was discrimination on grounds of political opinion, no justification has been shown for the compelled speech which would be entailed for imposing civil liability for refusing to fulfil the order.” [at 59-62]

In any event, the inherent conflict between religious rights and the ban on discrimination will inevitably prompt similar cases in both the United Kingdom and the United States within the foreseeable future.

Interesting Cases to Look For during the Next US Supreme Court Term

While the US Supreme Court is in recess now, there are several potentially monumental cases which are either being processed in lower Courts at the moment or are likely to end up before the federal courts soon, which are due to eventually bubble up during the high court’s next term. As the Court reconvenes in October 2018, it will also most likely have a new member, Judge Kavanaugh, whom the Senate Republicans plan to confirm in September 2018 thereby consolidating a solid conservative majority on the bench. The Supreme Court so constituted, will face requests to adjudicate on a whole series of tough issues, some of which are now long overdue.

Here is a list of 6 big questions the US Supreme Court might be asked to answer during its next term:

1. Whether the 2nd Amendment Protects the Right to Bear Arms outside One’s Home

In its landmark 2008 opinion, the US Supreme Court ruled in District of Columbia v. Heller (554 U.S. 570 2008) that the 2nd Amendment protected the individual right to possess firearms within the confines of one’s home for the purposes of self-defence. In 2010 the rule was extended in McDonald v. Chicago (561 U.S. 742 2010) to apply to States as well. However, since then, the Court has taken very few cases concerning the scope of the 2nd Amendment (but see e.g. Caetano v. Massachusetts, 577 U.S. ___ (2016)). This leaves two big issues largely unresolved. First, what types of firearms are covered by the 2nd Amendment? Secondly, does the 2nd Amendment cover public arena outside of one’s home? Both issues are hotly litigated over, especially in the so called Blue States. On 24 July 2018 a three-judge panel of the Court of Appeals for the 9th Circuit ruled in the case of Young v State of Hawaii No. 12-17808 that the 2nd Amendment did in fact protect the right to bear arms in public. This is in spite of the 2016 decision of the same Court in Peruta v. County of San Diego, 824 F.3d 919, 939 (2016), which, sitting en banc, upheld a complete ban on carrying any firearms outside one’s home. However, the latter case was distinguished on the grounds that it was concerned with a concealed-carry while the former was concerned with an open-carry. Nevertheless, the State of Hawaii is entitled to apply for a reconsideration of this decision by an en banc Court which, given a strong liberal nature of the 9th Circuit, is likely to result in a reversal of the original decision. Regardless, the 2nd Amendment jurisprudence of the 9th Circuit stands in open opposition to other Circuits, such as the 7th Circuit which held in 2013 in the case of Moore v Madigan (USDC 11-CV-405-WDS, 11-CV-03134; 7th Cir. 12-1269, 12-1788) that a complete ban on concealed carry was unconstitutional. This situation constitutes a clear example of the so called ‘circuit split’ which creates a pressure on the Supreme Court to resolve the issue rather sooner than later. Here the appointment of Judge Kavanaugh as a new Supreme Court Justice might be of considerable impact as he has a strong record on the 2nd Amendment (e.g. Heller v. District of Columbia No. 10–7036. 2011).

2. Whether the ObamaCare’s Individual Mandate Has Been Rendered Unconstitutional by The Tax Cuts and Jobs Act 2017

So far the ObamaCare has withstood, albeit not in its entirety, several challenges before the federal courts and a new one is gaining momentum now. In 2012 the US Supreme Court ruled in the case of National Federation of Independent Business v. Sebelius (567 U.S. 519 2012) that, inter alia, although the Individual Mandate was not a valid exercise of the Congress’s power to regulate inter-state commerce, it could be read as a tax and thereby be a valid exercise of the taxation power instead. This is because the so called ‘penalty’ for breaching the Mandate was limited to a financial fee processed by the IRS together with individuals’ income taxes. This saving construction persuaded Chief Justice Roberts who joined the 4 liberal Justices on the Court and voted to uphold the Individual Mandate. However, The Tax and Jobs Act 2017 recently passed by Congress eliminates this so called tax while leaving the Individual Mandate as such intact. In those circumstances, several Red States sued again claiming that the elimination of the tax had rendered the Individual Mandate unconstitutional as now, in the absence of any tax attached to it, it could only be construed as an exercise of the Congress’s power to regulate inter-state commerce which was already declared invalid by the US Supreme Court in 2012 (Texas Tribune). However, the lawsuit goes even further as it claims that the Individual Mandate is inseverable from the rest of the law or at least from its certain parts, such as the community rating, and if it is in fact struck down by the Court, it might drag other parts of the ObamaCare with it. Given that the Trump Administration decided not to defend the lawsuit, the case is now bound to proceed further up the ladder towards the Supreme Court (The Atlantic). Interestingly, the replacement of Justice Kennedy with Judge Kavanugh might actually push the Court to reject any challenges to the ObamaCare as Judge Kavanaugh appears to have been more accommodating in this respect than his predecessor, siding with the approach of the Chief Justice rather than Justice Scalia (Seven-Sky v. Holder (No. 11–5047 2011)).

3. Whether the DACA Program (and its Rescission via Executive Action) is Constitutional

Deferred Action for Childhood Arrivals (DACA) was announced by President Obama via an Executive Memorandum in 2012 to allow for a temporary lawful stay of illegal immigrants brought to the United States as children. The policy was introduced in response to Congress not being able to pass the DREAM Act which would put it on a statutory footing. Since then, DACA has been often cited as an example of executive overreach given that it was introduced via executive action thereby circumventing the legislature. The policy has been challenged in the federal courts several times. A lawsuit against the original policy was dismissed on procedural grounds in 2013 (Fox News) but as President Obama attempted to extend the programme, the expansion was blocked by the US Supreme Court in the case of United States v. Texas, 579 U.S. ___ (2016), although in a per curiam decision concerning an interim injunction with the crux of the matter soon becoming moot. The Trump Administration announced in 2017 that it would rescind the DACA program altogether as incompatible with federal immigration laws on the books. However, on 3 August 2018, a DC District Court ruled in the case of Trustees of Princeton University v United States (1:17-cv-02325-JDB) that the rescission of DACA was unlawful because the Administration did not supply the Court with any valid reason for its decision. This is yet another signature policy of the Trump Administration after the so called Travel Ban blocked by lower federal courts and therefore the decision is bound to be appealed by the Administration in hope that the US Supreme Court will vindicate its lawfulness, as it happened in the Travel Ban case (Trump v. Hawaii, No. 17-965, 585 U.S. ___ (2018)). In this area the impact of the appointment of Judge Kavanaugh to the Supreme Court is rather difficult to predict.

4. Whether the Policy of Sanctuary Cities is Constitutional

The question of the constitutionality of sanctuary polices has been looming for decades but so far it has never been properly decided. This, however, might change now that the Trump Administration vowed to crack down on Blue States shielding illegal immigrants from federal agencies. On the one hand, the Department of Justice decided to withdraw funding from cities refusing to cooperate with the federal government in respect of immigration enforcement and in March 2018 it sued the State of California for its sanctuary policies. On the other hand, in return, two of California counties (San Francisco and Santa Clara) sued the Department of Justice claiming that such a withdrawal of funds was unconstitutional and managed even to persuade a local District Court as well as the Court of Appeals for the 9th Circuit to grant an injunction (The Washington Post). Accordingly, given how high this issue is on the Presidential agenda and how much litigation it has generated so far, one of those cases is bound to end up before the US Supreme Court sooner or later and this time the Court will have no choice but to rule on a wider issue of sanctuary policies in general. As with the DACA programme, the impact of the appointment of Judge Kavanaugh to the Supreme Court on sanctuary policies is not easy to predict.

5. Whether Affirmative Action is Constitutional

Technically, the constitutionality of affirmative action has already been confirmed on several occasions, for the first time in 1978 in the case of Regents of the University of California v. Bakke (438 U.S. 265 1978), then in 2003 in Grutter v. Bollinger (539 U.S. 306 2003) and most recently in 2016 in the case of Fisher v. University of Texas (579 U.S. (2016), commonly referred to as Fisher II. However, the recent decisions have been extremely closely decided and Justice Kennedy has been the one casting the deciding vote. Now that Justice Kennedy is being replaced by Judge Kavanaugh, the Court might easily swing the other way. So far there is no case pending before any federal court concerning affirmative action, however, there have been some moves by the Trump Administration to limits its impact, such as reversing President Obama’s policy on affirmative action in schools (NY Times) or investigating the impact of affirmative action programmes at the Harvard University on the Asian-American minority admissions (CNN). Although no case has been brought on this issue so far, there are signs that affirmative action might once again end up before the federal courts and this time Justice Kennedy will not be around to save it.

6. Whether Fetal Heartbeat Legislation is Constitutional

The opposition of Red States to the constitutional right to abortion recognised in Roe v Wade (1973) is widely known. From time, to time, this opposition materliases in a form of some State legislation hindering access to abortion in hope that it would pass the Undue Burden test imposed on this type of legislation by the Supreme Court in the case of Planned Parenthood v Casey (1992). One of such measures was passed and signed into law in the State of Iowa on 4 May 2018. The so called ‘heartbeat’ Act bans abortions as soon as fetal heartbeat could be detected, which usually happens around the sixth week into pregnancy, and as such constitutes the most restrictive abortion law in the country. Immediately, the American Civil Liberties Union sued in the Polk County District Court for a declaration of unconstitutionality as well as an interim injunction against the law which was granted on 1 June 2018 (Des Moines Register). The case is now being considered on its merits but regardless of the Court’s decision, it is bound to be appealed and eventually end up before the US Supreme Court. This is especially interesting given that Judge Kavanaugh’s jurisprudence on abortion is very scarce and no one is able to predict how he might vote on this issue. If the newest Justice decides to side with the reliable conservatives on the Court, the fate of the right to abortion in the United States will depend solely on Chief Justice Roberts and he remains a huge unknown as well.

It seems that in its 2019 term, the US Supreme Court might be asked to decide at least 6 issues of historical importance and its decisions will be felt across the whole country in decades to come.