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Posted 18 Apr 2016 in Case Notes, Commentary
It was a different crowd today at the Supreme Court. The number of children on the courthouse steps may have exceeded the number of adults, and the voices on the microphones were speaking English and Spanish. United States v. Texas is about different things for different people. For some it is about keeping families together, for others executive overreach, and for about half of the states it is about “standing” to sue the federal government.  

Posted 13 Apr 2016 in Case Notes, Commentary
There is outright theft and then there is getting paid for doing the job but not following all the rules. The former may be the subject of a False Claims Act claim but what about the latter?  The Supreme Court will hear argument on that question next week.  The False Claims Act (FCA) allows private individuals to sue on behalf of the United States to recover money that has been defrauded from the federal government. While the Supreme Court has yet to rule whether states and local governments can bring FCA claims, local governments, but not state governments, can be sued for making false claims against the federal government.  

Posted 22 Mar 2016 in Case Notes, Commentary
In a per curiam (unauthored) opinion, which concurring Justices Alito and Thomas call “grudging,” the U.S. Supreme Court has ordered the Supreme Judicial Court of Massachusetts to decide again whether Massachusetts’s stun gun ban is constitutional. Currently eight states and a handful of cities and counties ban stun guns.  The highest state court in Massachusetts held that the Second Amendment doesn’t protect stun guns because they weren’t in common use at the time the Second Amendment was enacted, they are “unusual” as “a thoroughly modern invention,” and they aren’t readily adaptable for use in the military.

Posted 16 Mar 2016 in Commentary
As promised, President Obama has nominated someone to fill the vacancy on the Supreme Court.  If this wasn’t an election year Merrick Garland would be a surprising choice. He is known as a moderate, is older (63), a white male, and has been a judge on the D.C. Circuit Court of Appeals for almost 20 years. If it wasn’t an election year Senate Republicans would probably be racing to confirm him.

Posted 02 Mar 2016 in Commentary
In a 2-1 decision the Sixth Circuit Court of Appeals ruled that it—rather than a federal district court—has jurisdiction to decide whether the Clean Water Rule, clarifying the scope of the “waters of the United States (WOTUS),” exceeds the Environmental Protection Agency’s (EPA) authority.  In October the Sixth Circuit assumed it had jurisdiction and issued a temporary nationwide stay of the rule. The WOTUS rule defines “waters the United States,” according to the EPA, “through increased use of bright-line boundaries” to make “the process of identifying waters protected under the Clean Water Act easier to understand, more predictable and consistent with the law and peer reviewed science, while protecting the streams and wetlands that form the foundation of our nation’s water resources.”  The Sixth Circuit stayed the rule concluding it was likely that a number of the definitions were at odds with Rapanos v. United States (2006) and the distance limitations in the final rule weren’t a “logical outgrowth” of the proposed rule, in violation of the Administrative Procedures Act.

Posted 03 Feb 2016 in Case Notes, Commentary, Roundup
The Friday before and the Tuesday after Martin Luther King, Jr. Day the Supreme Court accepted a total of nine cases, including a challenge to the President’s executive order allowing undocumented parents of children who are citizens to remain in the United States.  United States v. Texas will be heard this term and decided by the end of June. Oral argument will be held next term in some of the other cases accepted mid-January. Four of the eight cases accepted, in addition to the immigration case, affect state and local governments.  While I will write more about each of these cases later, for now, below is a brief synopsis of them.