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Zubik v. Burwell - Post-Decision SCOTUScast

SCOTUScast 5-23-16 featuring Roger Severino
Roger Severino May 23, 2016

On May 16, 2016, the Supreme Court decided Zubik v. Burwell, the lead case in a consolidated series, with the other petitioners including Priests for Life, Southern Nazarene University, Geneva College, Roman Catholic Archbishop of Washington, East Texas Baptist University, and Little Sisters of the Poor Home for the Aged.

The Patient Protection and Affordable Care Act of 2010 (ACA) requires that group health plans and health insurance issuers provide coverage for women’s “preventative care,” or face financial penalties. Although the ACA does not define preventative care, the U.S. Department of Health and Human Services (HHS), relying on the Institute of Medicine, determined that the term encompassed, among other things, all FDA-approved contraceptive methods, including drugs and devices that could induce an abortion. Federal regulations require petitioners to cover these contraceptives as part of their health plans, unless petitioners submit a form either to their insurer or to the Federal Government, stating that they object on religious grounds to providing contraceptive coverage. Petitioners resisted, asserting that submitting the notice substantially burdened the exercise of their religion, in violation of the Religious Freedom Restoration Act of 1993. The ensuing litigation yielded different outcomes in different U.S. Courts of Appeals, and the Supreme Court granted certiorari. Following oral argument, the Court requested supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.” 

After receiving the supplemental briefs the Supreme Court vacated the judgments of the Courts of Appeals by a vote of 8-0 and remanded the cases to the Third, Fifth, Tenth, and D.C. Circuits, respectively. The Court’s per curiam opinion explained that “‘the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’” Furthermore, the Court indicated it was expressing no view on the merits of the cases and stated that “nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners’ health plans ‘obtain, without cost, the full range of FDA-approved contraceptives.’" At the same time, the Court noted, throughout this litigation, petitioners had made the Government aware of their view that they meet “the requirements for exemption from the contraceptive coverage requirement on religious grounds” and nothing in the Court’s opinion, or in the opinions or orders of the courts below, “precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage going forward.” And because the Government may rely on this notice, the Court indicated, “the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice.”

Justice Sotomayor issued a concurring opinion, joined by Justice Ginsburg.

To discuss the case, we have Roger Severino, who is Director, DeVos Center for Religion and Civil Society, The Heritage Foundation.

Heffernan v. City of Paterson - Post-Decision SCOTUScast

SCOTUScast 5-17-16 featuring Adele Keim
Adèle Keim May 17, 2016

On April 26, 2016, the Supreme Court decided Heffernan v. City of Paterson. Jeffrey Heffernan was a police officer for the City of Paterson, New Jersey. A fellow police officer observed Heffernan picking up a campaign sign for the mayoral candidate running against the incumbent. Although Heffernan disclaimed any political motives and said he was merely picking the sign up for his mother, his supervisor demoted him. Heffernan sued Paterson claiming a violation of his First Amendment rights, but lost on the grounds that, his supervisor’s erroneous belief notwithstanding, the fact that Heffernan was not actually engaged in political activity doomed his claim. The U.S. Court of Appeals for the Third Circuit affirmed the trial court’s judgment. The question before the Supreme Court was whether the First Amendment bars the government from demoting a public employee based on a supervisor's perception that the employee supports a political candidate.

By a vote of 6-2, the Supreme Court reversed the decision of the Third Circuit and remanded the case. Justice Breyer delivered the opinion of the Court, which held that when an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and Section 1983 even if the employer's actions are based on a factual mistake about the employee's behavior. Justice Breyer was joined by the Chief Justice and Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Thomas filed a dissenting opinion, in which Justice Alito joined.

To discuss the case, we have Adele Keim, who is counsel at The Becket Fund for Religious Liberty.

Hughes v. Talen Energy Marketing - Post-Decision SCOTUScast

SCOTUScast 5-16-16 featuring James Coleman
James Coleman May 16, 2016

On April 19, 2016, the Supreme Court decided Hughes v. Talen Energy Marketing and several consolidated companion cases. The Court considered whether Maryland encroached on the Federal Energy Regulatory Commission’s (FERC) rate-setting power when directing its local electricity distribution companies, via a “Generation Order,” to enter into a fixed-rate contract with an energy provider selected through a bidding process. The U.S. Court of Appeals for the Fourth Circuit held that Maryland’s Generation Order was preempted by federal law because it effectively set the rates the producer would receive for sales resulting from a regional auction overseen by FERC, and in effect also extended a three-year fixed price period set under the Federal Power Act to twenty years. The questions before the Supreme Court were: (1) Whether, when a seller offers to build generation and sell wholesale power on a fixed-rate contract basis, the Federal Power Act field-preempts a state order directing retail utilities to enter into the contract; and (2) whether FERC’s acceptance of an annual regional capacity auction preempts states from requiring retail utilities to contract at fixed rates with sellers who are willing to commit to sell into the auction on a long-term basis. 

By a vote of 8-0, the Supreme Court affirmed the judgment of the Fourth Circuit. Justice Ginsburg delivered the opinion of the Court, holding that Maryland's regulatory program--which disregards an interstate wholesale rate set by FERC--is preempted by the Federal Power Act, which vests in FERC exclusive jurisdiction over interstate wholesale electricity rates. Justice Ginsburg’s opinion was joined by the Chief Justice and Justices Kennedy, Breyer, Alito, Sotomayor, and Kagan. Justice Sotomayor filed a concurring opinion. Justice Thomas filed an opinion concurring in part and concurring in the judgment. 

To discuss the case, we have James Coleman, who is Assistant Professor at University of Calgary Law School.

Bank Markazi v. Peterson - Post-Decision SCOTUScast

SCOTUScast 5-16-16 featuring Erik Zimmerman
Erik Zimmerman May 16, 2016

On April 20, 2016, the Supreme Court decided Bank Markazi v. Peterson. The Iran Threat Reduction and Syria Human Rights Act of 2012 makes a designated set of assets available to satisfy the judgments gained in separate actions by victims of terrorist acts sponsored by Iran. Section 8772(a)(2) of the statute requires a court, before allowing execution against these assets, to determine, inter alia, “whether Iran holds equitable title to, or the beneficial interest in, the assets.” Respondents—more than 1,000 victims of Iran-sponsored acts of terrorism, their estate representatives, and surviving family members—hold judgments against Iran and moved for turnover of about $1.75 billion in bond assets held in a New York bank account allegedly owned by Bank Markazi, the Central Bank of Iran. When respondents invoked §8772, Bank Markazi argued that the statute was unconstitutional, contending that Congress had usurped the judicial role by directing a particular result in a pending enforcement proceeding and thereby violating the separation of powers.  The District Court disagreed and upheld the statute. The U.S. Court of Appeals for the Second Circuit affirmed, and Bank Markazi took its objection to the U.S. Supreme Court.

By a vote of 6-2, the Supreme Court affirmed the judgment of the Second Circuit. Justice Ginsburg delivered the opinion of the Court, which held that Section 8772 does not violate the separation of powers. Justice Ginsburg was joined by Justices Kennedy, Breyer, Alito, and Kagan. Justice Thomas joined the majority opinion in all but Part II-C. Chief Justice Roberts filed a dissenting opinion in which Justice Sotomayor joined.

To discuss the case, we have Erik Zimmerman, who is an attorney at Robinson, Bradshaw & Hinson, PA.

Ocasio v. United States - Post-Decision SCOTUScast

SCOTUScast 5-16-16 featuring Timothy O'Toole
Timothy P. O'Toole May 16, 2016

On May 2, 2016, the Supreme Court decided Ocasio v. United States. Former police officer Samuel Ocasio challenged his conviction under the Hobbs Act for conspiracy to commit extortion, which arose from an alleged kickback scheme under which police officers funneled wrecked automobiles to a particular repair shop in exchange for monetary payments. He was charged with obtaining money from the shop owners under color of official right and of conspiring to violate the Hobbs Act. The District Court rejected Ocasio’s argument that a Hobbs Act conspiracy requires proof that the alleged conspirators agreed to obtain property from someone outside the conspiracy. He was convicted on all counts and the U.S. Court of Appeals for the Fourth Circuit affirmed the convictions. The question before the Supreme Court was whether a conspiracy to commit extortion requires that the conspirators agree to obtain property from someone outside the conspiracy.

By a vote of 5-3, the Supreme Court affirmed the judgment of the Fourth Circuit. Justice Alito delivered the opinion of the Court, which held that a defendant may be convicted of conspiring to violate the Hobbs Act based on proof that he reached an agreement with the owner of the property in question to obtain that property under color of official right. Justice Alito’s opinion was joined by Justices Kennedy, Ginsburg, Breyer, and Kagan. Justice Breyer filed a concurring opinion. Justice Thomas filed a dissenting opinion. Justice Sotomayor filed a dissenting opinion, in which Chief Justice Roberts joined.

To discuss the case, we have Timothy O’Toole, who is a Lawyer at Miller & Chevalier.