Law in Plain English: Zivotofsky v. Kerry

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Zivotofsky v. Kerry

Argument: Nov 3 2014 (Aud.)

Background: Section 214(d) of the Foreign Relations Authorization Act (2003) requires the Secretary of State to record "Israel" as the place of birth on the passport of a United States citizen born in Jerusalem if the citizen or his guardian requests. The Secretary has not enforced this provision, believing that it impermissibly intrudes on the President's exclusive authority under the United States Constitution to decide whether and on what terms to recognize foreign nations. The parents of Menachem Zivotofsky (a United States citizen born in Jerusalem), filed a lawsuit seeking a permanent injunction ordering the Secretary to issue a passport listing "Israel" as their son's place of birth. Ruling in favor of the Secretary, the Court of Appeals for the District of Columbia Circuit found that the President held exclusive power to determine whether to recognize a foreign nation. Section 214(d) was not the neutral regulation of the form and content of a passport (as Congress has the power to do under its immigration powers), but rather an attempted legislative articulation of foreign policy, enacted to alter United States foreign policy toward Jerusalem. As a result, Section 214(d) impermissibly intruded on the President's recognition power and was unconstitutional.

Issue: The question before the Court is whether a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in "Israel" on a Consular Report of Birth Abroad and on a United States passport is unconstitutional on the ground that the statute "impermissibly infringes on the President's exercise of the recognition power reposing exclusively in him."

Holding: In a 6-3 decision, the Supreme Court ruled that the President has the exclusive power to grant formal recognition to a foreign sovereign. Because the power to recognize foreign states resides in the President alone, §214(d) infringes on the Executive’s consistent decision to withhold recognition with respect to Jerusalem.

Law in Plain English: Department of Transportation v. Association of American Railroads

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Department of Transportation v. Association of American Railroads

Argument: Dec 3 2014 (Aud.)

Background: Section 207 of the Passenger Rail Investment and Improvement Act of 2008 empowers Amtrak and the Federal Railroad Administration (FRA) to jointly develop performance measures to enhance enforcement of the statutory priority Amtrak's passenger service has over other trains. The Association of American Railroads, a trade association who members include the largest freight railroads, challenged the statutory scheme as unconstitutional. The district court rejected these claims, but the D.C. Circuit reversed. The panel found that Amtrak was a private corporation with respect to Congress's power to delegate regulatory authority, and as such § 207 constituted an unlawful delegation of regulatory power to a private entity.

Issue: The question before the Court is whether Section 207 of the Passenger Rail Investment and Improvement Act of 2008, which requires the Federal Railroad Administration (FRA) and Amtrak to “jointly...develop” the metrics and standards for Amtrak’s performance that will be used in part to determine whether the Surface Transportation Board (STB) will investigate a freight railroad for failing to provide the preference for Amtrak’s passenger trains that is required by federal law, and provides for the STB to appoint an arbitrator if the FRA and Amtrak cannot agree on the metrics and standards within 180 days, effects an unconstitutional delegation of legislative power to a private entity.

Holding: In a 9-0 decision, the Supreme Court ruled that for purposes of determining the validity of the metrics and standards, Amtrak is a governmental entity. The Court found that congressional pronouncements are not dispositive of Amtrak’s status as a governmental entity for purposes of separation of powers analysis under the Constitution, and as a result, the Court remanded the case  for determination of substantial questions respecting the lawfulness of the metrics and standards—including questions implicating the Constitution’s structural separation of powers and the Appointments Clause.

Law in Plain English: Perez v. Mortgage Bankers Association

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Perez v. Mortgage Bankers Association; consolidated with Nickols v. Mortgage Bankers Association

Argument: Dec 1 2014 (Aud.)

Background: In 2006, the Department of Labor issued an opinion letter interpreting the Fair Labor Standards Act (FLSA) to exempt mortgage loan officers from FLSA's overtime requirements under the "administrative exemption." In 2010, the Department (without notice or comment) withdrew the 2006 opinion letter and issued a new interpretation that mortgage loan officers did not qualify for the administration exemption. The Mortgage Bankers Association (MBA) challenged the 2010 interpretation as violating the Administrative Procedure Act (APA) because the Department significantly altered the rule without first undergoing notice­-and-comment rulemaking. The district court rejected the argument, finding that MBA had not demonstrated substantial and justifiable reliance on a well­-established agency interpretation. The D.C. Circuit reversed, finding that reliance is but one factor courts must consider in assessing whether an agency interpretation qualifies as definitive.

Issue: The question before the Court is whether a federal agency must engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation.

Holding: In a 9-0 decision, the Supreme Court ruled that the Paralyzed Veterans doctrine is contrary to the clear text of the APA’s rulemaking provisions and improperly imposes on agencies an obligation beyond the APA’s maximum procedural requirements. When a federal administrative agency first issues a rule interpreting one of its regulations, it is generally not required to follow the notice-and-comment rulemaking procedures of the APA, and the D.C. Circuit's ruling's createt a judge-made procedural right that was inconsistent with Congress’ standards. The practical impact of this decision is that the Department of Labor's interpretation of the FLSA is not required to undergo notice-and-comment rulemaking.

Law in Plain English: National Labor Relations Board v. Noel Canning

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: National Labor Relations Board v. Noel Canning

Photo from
Noel Corporation.

Argument: Jan 13 2014 (Aud.)

Background: The National Labor Relations Board (NLRB or Board) found that Noel Canning violated section 8(a)(1) and (5) of the National Labor Relations Act (NLRA) by refusing to reduce to writing and execute a collective bargaining agreement reached with Teamsters Local 760 (the Union). Noel Canning appealed, alleging that the Board lacked authority to act for want of a quorum, as three members of the five-member Board were never validly appointed because they took office under recess appointments which were made when the Senate was not in recess. Second, it asserts that the vacancies these three members purportedly filled did not "happen during the Recess of the Senate," as required for recess appointments by the Constitution. The D.C. Circuit ruled that the Board issuing the findings and order could not lawfully act, as it did not have a quorum.

Issue: The questions before the Court are (1) whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate, and (2) whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess.

Holding:  In a 9-0 decision, the Supreme Court ruled that the Recess Appointments Clause authorizes the president to fill any existing vacancy during any recess – whether occurring during or between sessions of Congress – of sufficient length. For purposes of the clause, the Senate is in session whenever it indicates that it is, as long as – under its own rules – it retains the capacity to transact Senate business.

Law in Plain English: Greenhouse Gases Cases

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Utility Air Regulatory Group v. EPA (consolidated with American Chemistry Council v. EPA; Energy-Intensive Manufacturers v. EPA; Southeastern Legal Foundation v. EPA; Texas v. EPA; Chamber of Commerce v. EPA)

Argument: Feb 24 2013 (Aud.)

Background: Following the Supreme Court's decision in Massachusetts v. EPA, 549 U.S. 497 (2007)—which clarified that greenhouse gases are an "air pollutant" subject to regulation under the Clean Air Act (CAA)—the Environmental Protection Agency (EPA) promulgated a series of greenhouse gas-related rules. Among them was the Tailpipe Rule, which set emission standards for cars and light trucks. Under the EPA's longstanding interpretation of the CAA, the Tailpipe Rule automatically triggered regulation of stationary greenhouse gas emitters. In other words, the EPA argued that once the Tailpipe Rule set motor-vehicle emission standards for greenhouse gases, the greenhouse gases became a regulated pollutant under the Act  and thus subject to regulation by stationary emitters. Various states and industry groups challenged these rules, arguing that they are based on improper constructions of the CAA and are otherwise arbitrary and capricious. The DC Circuit dismissed and denied all petitions.

Issue: The question before the Court is whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.

Holding: The Supreme Court ruled that the Act neither compels nor permits EPA to adopt an interpretation of the Act requiring a source to obtain a PSD or Title V permit on the sole basis of its potential greenhouse-gas emissions. EPA reasonably interpreted the Act to require sources that would need permits based on their emission of conventional pollutants to comply with BACT for greenhouse gases.

Law in Plain English: Environmental Protection Agency v. EME Homer City Generation; American Lung Association v. EME Homer City Generation

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Environmental Protection Agency v. EME Homer City Generation; consolidated with American Lung Association v. EME Homer City Generation

Argument: Dec 10 2013 (Aud.)

Discussion: Under the Clean Air Act (CAA), the Federal Government sets air quality standards, but States retain the primary responsibility for choosing how to attain those standards within their borders. The CAA contains a "good neighbor" provision which requires upwind States to bear responsibility for their fair share of pollution caused in down-wind States. To implement the statutory good neighbor requirement, the Environmental Protection Agency (EPA) promulgated the Transport Rule (or Cross-State Air Pollution Rule, CSAPR), which defines emissions reduction responsibilities for 28 upwind States based on those States' contributions to downwind States' air quality problems. An array of power companies, coal companies, labor unions, trade associations, States, and local governments petitioned for review of EPA's Transport Rule. The D.C. Circuit ruled that States, not the Federal Government, are the primary implementers after EPA has set the upwind States' good neighbor obligations. As a result, the court found that the EPA had exceeded its statutory authority and vacated the rule. In appealing the ruling of the D.C. Circuit, the EPA argued both that the court exceeded its jurisdiction and erred on the merits.

Issue: The questions before the Court are (1) whether the Court of Appeals lacked jurisdiction to consider the challenges to the Clean Air Act on which it granted relief; (2) whether states are excused from adopting state implementation plans prohibiting emissions that “contribute significantly” to air pollution problems in other states until after the EPA has adopted a rule quantifying each state’s inter-state pollution obligations; and (3) whether the EPA permissibly interpreted the statutory term “contribute significantly” so as to define each upwind state’s “significant” interstate air pollution contributions in light of the cost-effective emission reductions it can make to improve air quality in polluted downwind areas, or whether the Act instead unambiguously requires the EPA to consider only each upwind state’s physically proportionate responsibility for each downwind air quality problem.

Holding: In a 6-2 decision, the Supreme Court reversed the decision of the D.C. Circuit and ruled that the CAA does not command that States by given a second opportunity to file a State Implementation Plan (SIP) after EPA has quantified the State's interstate pollution obligations. The EPA's cost-effective allocation of emission reductions among upwind States is a permissible, workable, and equitable interpretation of the Good Neighbor Provision.

Law in Plain English: BG Group PLC v. Republic of Argentina

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: BG Group PLC v. Republic of Argentina

Argument: Dec 2 2013 (Aud.)

Background: A bilateral investment treaty between the United Kingdom of Great Britain and Northern Ireland, and Argentina provides that disputes between an investor and the host State will be resolved in the host State's courts. If no final court ruling is forthcoming within eighteen months or the dispute is unresolved after a court ruling, the treaty provides that the dispute may be sent to arbitration. BG Group, PLC, a British corporation and investor in Argentina gas companies, invoked the arbitration clause without first filing a claim in the Argentine courts. The arbitration panel nonetheless ruled it had jurisdiction, found Argentina had violated the treaty, and awarded BG Group damages. The DC Circuit reversed, finding that the question of arbitrability is an independent question of law for the court to decide; and as a result, that BG Group was required to  file its lawsuit in Argentina's courts and wait eighteen months before filing for arbitration.

Issue: The question before the Court is whether, in disputes involving a multi-staged dispute resolution process, a court or the arbitrator determines whether a precondition to arbitration has been satisfied.

Holding: In a 7-2 decision, the Supreme Court ruled that a court of the United States, in reviewing an arbitration award made under the Treaty, should interpret and apply “threshold” provisions concerning arbitration using the framework developed for interpreting similar provisions in ordinary contracts. Under that framework, the local litigation requirement is a matter for arbitrators primarily to interpret and apply. Courts should review their interpretation with deference.

Law in Plain English: Verizon v. FCC

This is one in a series of posts designed to describe court decisions in plain English. For similar posts, click here.

To see the full text of Preserving the Open Internet, click here. For a previous discussion of the net neutrality issue when Preserving the Open Internet was released in December 2010, see here. To see all of my posts tagged with net neutrality, click here.


Docket No.: 11-01355

Argument: September 9, 2013 (Audio)

Discussion: In Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010), the D.C. Circuit vacated the Federal Communication Commission’s first effort to effect regulation of broadband Internet service through a set of rules known collectively as "net neutrality." The Court ruled that the FCC, in promulgating the rules, exceeded its statutory authority. Later that year, the FCC passed Preserving the Open Internet, 25 F.C.C.R. 17905 (rel. Dec. 23, 2010), 76 Fed. Reg. 59192 (Sept. 23, 2011) (“Order”). Verizon alleges that the FCC again has exceeded its statutory authority. On the other hand, the FCC rested its authority in Sections 706(a) and 706(b) of the Telecommunications Act of 1996, which "encourage[s] the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans,” and allows the Commission to "take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market” if reasonable and timely” deployment is not occurring.

Issue: The questions before the DC Circuit are: (1) whether the Order imposes common-carriage requirements on services that are statutorily exempt from such requirements or otherwise exceeds the FCC's statutory authority; (2) whether the Order is unconstitutional; and (3) whether the Order is arbitrary and capricious.

Holding: TBD

Law in Plain English: Shelby County v. Holder

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

See here for a previous discussion and more background on the constitutionality of the Voting Rights Act.

Shelby County v. Holder

In 2006, Congress reauthorized Section 5 the Voting Rights Act (VRA), which kept in place a pre-existing coverage formula in Section 4(b) which determined which jurisdictions are required see seek preclearance for changes to voting procedures. Shelby County, Alabama filed a lawsuit in the U.S. District Court for the District of Columbia, seeking a declaratory judgment that the Voting Rights Act (specifically, Sections 4(b) and 5) were unconstitutional. The District Court disagreed and granted summary judgment to the Attorney General. A divided Court of Appeals affirmed. The question before the Court was whether Congress’ decision to reauthorize Section 5 of the VRA under the pre-existing coverage formula of Section 4(b) of the VRA exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution. In a 5-4 decision, the Supreme Court ruled that Section 4 of the Voting Rights Act t is unconstitutional; its formula can no longer be used as a basis for subjecting jurisdictions to preclearance. As a result, Congress cannot use the VRA's existing preclearance formula to single out jurisdictions--they must use data about current conditions.

SCOTUS in Plain English: Sebelius v. Auburn Regional Medical Center

This is one in a series of posts designed to describe Supreme Court decisions in plain English. For more detail and background on the legal issues, see the link to the case at SCOTUblog below. For similar posts, click here.

Sebelius v. Auburn Regional Medical Center

Hospitals that serve a disproportionally large number of low-income patients are eligible for a higher amount of Medicare reimbursement from the federal government based upon a formula. Hospitals can appeal this determination as long as they do so within 180 days (this can be extended up to three years with good cause) if they feel their reimbursement amount wasn't sufficient. A Department of Health and Human Services review board found errors in the Medicare reimbursement calculations, but didn't disclose them for over ten years. The hospital argued that the statute of limitations should have been delayed (in legal terminology, this is called "equitable tolling") because they didn't know about the error. The Supreme Court found that the statute of limitations did not apply to the 180 day limit, partly because it was an internal agency appeals process. In other words, the hospitals needed to appeal within 180 days of when they were denied the reimbursement adjustment, not years later when they found out about the error. The practical impact of this decision is that the government will not have to pay hospitals the Medicare reimbursements they were rightly due--the lawsuits (and there are many of them) were simply filed too late.

SCOTUS in Plain English: Smith v. United States

This is one in a series of posts designed to describe Supreme Court decisions in plain English. For more detail and background on the legal issues, see the link to the case at SCOTUblog below. For similar posts, click here.

Smith v. United States

Smith decided to participate in an illegal drug business and was charged with several counts of conspiracy (defined generally as an agreement between two people to commit a crime). In defense, Smith claimed that he had withdrawn from the conspiracy. The lower court told the jury that once the government proved Smith was part of the conspiracy, the burden then shifted to Smith to prove that he had withdrawn from the conspiracy. The Supreme Court agreed, and ruled that the burden to prove withdrawal is on the defendant (Smith).