Tuesday, March 31, 2015

The Rejection of "Plain Meaning" in Young v. United Parcel Service

By a vote of 6 to 3, the United States Supreme Court ruled in favor of Peggy Young in her lawsuit against United Parcel Service under the Pregnancy Discrimination Act. However, all nine justices of the Supreme Court rejected the "plain meaning" interpretation of the law that she proposed.

Friday, March 27, 2015

Indiana S.B. 101 - The Anti-Gay "Religious Freedom Restoration Act"

Indiana Governor Michael Pence described Indiana Senate Bill 101, the state's new "Religious Freedom Restoration Act," as nothing different than the Religious Freedom Restoration Acts adopted by the federal government and many other states. He stated: 
This bill is not about discrimination, and if I thought it legalized discrimination in any way I would have vetoed it.
Governor Pence is misinformed. This law is clearly designed to foster and encourage acts of private discrimination by businesses and employers on the basis of sexual orientation.

Friday, March 20, 2015

Supreme Court's Decision in Department of Transportation v. Association of American Railroads

On March 9 the Supreme Court ruled that Amtrak is a governmental entity for purposes of the Separation of Powers; therefore it did not violate the Constitution for Congress to give Amtrak a voice in the development of metrics and standards for evaluating the performance of passenger rail service. This was a non-controversial decision -- but it does have implications for King v. Burwell, the Affordable Care Act case.

Sunday, March 15, 2015

Preview of Walker v. Sons of Confederate Veterans: Confederate Flag License Plates

How do you feel when you see a Confederate Flag? Proud? Angry? Terrified? Whatever your reaction, you would probably concede that under the First Amendment individuals have the right to display this symbol, for example on a bumper sticker on their cars. But would it make a difference if the flag were on a license plate?

Saturday, March 14, 2015

Some Subtle Textual Arguments in King v. Burwell Addressed to Justice Scalia

In  a previous post I set forth the three statutory provisions that are under consideration in King v. Burwell and described the powerful constitutional arguments that were asserted by the federal government in support of the proposition that federal subsidies for health insurance under the Affordable Care Act are available to citizens in every state. These constitutional arguments were addressed to Justice Kennedy (who is committed to Federalism) and Chief Justice Roberts (who follows a pragmatic approach to legal interpretation). In this post I cover the more subtle textual arguments that were addressed to Justice Scalia.

Friday, March 13, 2015

Oklahoma and Alabama Laws Designed to Make It More Difficult for Gay and Lesbian Couples to Marry Will Backfire

News reports indicate that the Oklahoma House has approved a bill that transfers the power to issue marriage licenses from clerks of court to members of the clergy, and that the Alabama House has approved a bill that would explicitly authorize judges and members of the clergy to decline to officiate at specific marriages on account of religious objections. Neither law is constitutional. Both will have serious unintended consequences.

Constitutional Arguments in King v. Burwell

In King v. Burwell the government contends that the ACA requires the government to provide subsidies for families to purchase health insurance in all the states, while the challengers assert that the statute authorizes subsidies only in those states that established their own exchanges for the purchase of health insurance.

In this post I set forth the relevant statutory provisions and describe some of the powerful constitutional arguments that the government raised during oral argument in King v. Burwell that were intended to sway practical men like Justice Kennedy and Chief Justice Roberts. In a later post I will address some of the more subtle textual arguments that were intended to persuade a textualist like Justice Scalia.

Thursday, March 12, 2015

Saturday, March 7, 2015

Barack Obama at Selma, Alabama

The White House unveiled today a new website, Selma to Montgomery, to mark the 50th anniversary of this watershed event in American history. The President addressed the assembled marchers today. His speech will stand with his remarks in Cairo on June 4, 2009, A New Beginning. As then his words today are enduring and inspiring -- a sacred effort.