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The End of the Supreme Court’s Oral Arguments

The Supreme Court had their final oral arguments for this term yesterday when they heard the Arizona immigration law case. At this time, I would like to review some cases that they have yet to decide this term. In all, some 28 cases have yet to be decided. Several of them are statute interpretation cases or bankruptcy cases that would put one to sleep and will not be discussed. Instead, I will concentrate on some of the more interesting ones.

Of course, the granddaddy of them all will be the Obamacare cases- four in all. Much has been written here by this author and others and there is no need to revisit those issues and that debate, especially considering the anticipated coverage these cases will command once the decisions are actually handed down by the Supreme Court.

There are two 8th Amendment cases pending which are companion cases out of Arkansas and Alabama. However, there are ramifications beyond those states as concerns how courts treat juvenile offenders who commit admittedly adult crimes. In these cases, juveniles- age 14 at the time- were involved in homicides. In one case, the victim was murdered, robbed and then had his mobile home set ablaze to cover up the crimes. Since the Supreme Court has banned the execution of minors, states are left no recourse other than a life sentence without parole. George Will wrote an article on these cases noting that as our understanding of science changes, so should punishments with respect to juveniles. However, that merely begs the question as to the purpose of incarceration in the first place. Is the goal punishment for the crime, protection of the general public from potentially violent criminals, or rehabilitation? If the latter, then life without parole for juvenile offenders would certainly seem wrong.

The 8th Amendment addresses “cruel and unusual punishment.” These sentences are not necessarily “unusual” since states other than Arkansas and Alabama give courts this option with respect to juvenile offenders. But is it cruel to incarcerate a juvenile for life with no opportunity for parole? That is the question the Court must confront.

An interesting case regarding the practice of unions assessing additional fees for electioneering purposes violates the Constitution will be decided. Its interesting that the Court took and heard this case since the union in question- SEIU- refunded the money to those affected. They argued the case was moot, but the Court will decide the issue regardless. And in what should hopefully be the last time we hear the phrases “fleeting expletive” or “wardrobe malfunction” before the Court, they will decide whether the FCC’s indecency standards are too vague so as not to pass constitutional muster.

The legality of the Stolen Valor Act- which imposes sanctions against those who misrepresent their military honors- will be decided. The case boils down to the common law concept of “harm,” and who is specifically harmed when someone puts forth the impression that they are something they are not. One would imagine that formulations of “fraud” will be considered and whether those who legitimately earned military honors could sue those who misrepresent those honors. And the Secret Service is before the Court in a case involving Dick Cheney. When he was Vice-President, while at a mall meeting and greeting and shaking hands, he was approached and asked how many Iraqis he killed that day. There was alleged contact between the person and Cheney- contact for which the person was later arrested. However, the charges were eventually dropped due to lack of evidence. This sort of reminds me of the reaction to recent comments made by singer Ted Nugent. Was it an over-reaction by the Secret Service or was it a constitutional suppression of free speech rights?

A real interesting case involves an assessment placed on the users of the water and sewer system in Indianapolis. In short, the city granted an amnesty to those who still owed on the original assessment while others had paid the assessment in full. It is that group of taxpayers who are asserting the right to a refund arguing that they are being penalized for paying an assessment in full upfront. The ramifications for tax amnesty or even ticket payment amnesty programs is equally important. In a somewhat related case, the Court is asked whether when the government contracts with Indian tribes to perform certain services the government would normally perform whether they are bound to pay all the costs despite Congressional limits on payments. Again, the effects beyond the present case could affect how the government contracts with anyone. To me, it seems a contract is a contract despite Congressional expressions to the contrary. It also is illustrative of how the large federal bureaucratic state operates- sometimes the right hand doesn’t know what the left hand is doing.

A labor law case will discuss whether pharmaceutical sales representatives (those people with briefcases in doctor’s offices) are entitled to overtime pay or whether they are exempt as salesmen. This case is interesting because for 70 years, the Labor Department has been quiet on this issue. In effect, that would suggest this is a settled issue. However, the Obama Administration has unilaterally decided, through briefs in court cases, to take the side of the reps against the pharmaceutical companies. In oral argument, Scalia was particularly critical of the NLRB arguing that they were trying to achieve through the courts what they should be doing through the Federal Register.

In a case our Founders could have never anticipated, the Court is asked to decided whether children born two years after the death of a parent (through in vitro fertilization) is entitled to Social Security survivor benefits. I included this case only because it illustrates how the Court is often confronted with some strange and unique cases that crop up as technology changes.

Another case involves whether changes to Sentencing Guidelines should be applied retroactively to those pending sentencing. Ex post facto laws that adversely affect someone are prohibited by the Constitution. But in this case, the mandatory minimum was lowered, thus being to the advantage of the defendant in this case. The question asks whether that more favorable sentence can be imposed on the person, or whether the sentence at the time the crime was committed controls. It is sort of ex post facto in reverse.

Finally, there is the Arizona immigration law case that was just heard before the Court. Obviously, this is a federal preemption case pure and simple, or so the government would have one believe. However, as was pointed out in the oral argument, the state is simply codifying what the federal government requires in the first place. Additionally, it ceases the local Arizona practice of not enforcing the federal law in certain municipalities. The section of the law that deals with asking for ID and detaining until resolved received the most attention before the Court. It would appear, based on the oral argument, that there may be enough votes to uphold that part of the law, although the state registration requirements and criminal sanctions against employees may not survive. It should also be noted that Kagan recused herself in this case so it is possible that they could reach a 4-4 decision. In that case, the Ninth Circuit’s injunction against implementation of the law would be upheld and, in essence, Arizona loses.

As one can tell, there are several cases yet to be decided that touch upon several constitutional issues- jurisdiction and standing and access to courts, the Confrontation Clause, Free Speech and Free Association, Double Jeopardy, government contracting, 8th Amendment cases, labor law, immigration law and how far does the power of Congress extend under the Commerce Clause. Over the next two months, as decisions are released, I hope to cover them more in detail and how they affect each and everyone of us as US citizens.

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