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At the Supreme Court This Week

The Supreme Court will be closed on October 14th in observance of Columbus Day. Thus far, they have indicated no willingness to close due to the government shutdown and have informed counsel in upcoming cases to proceed as if there will be no closing. Some of the Supreme Court’s funding comes from filing fees and the like, thus they are not as affected as other government entities.

On Tuesday, they will hear two cases- one involving the Alien Torts Statute, a law that dates back to the First Congress. At issue is whether a foreigner can bring suit in a US court for alleged human rights abuses committed in another country if a business where these abuses occurs has a substantial existence in the United States. Specifically, the claims are against actions by the security chief at a Daimler-Chrysler plant in Argentina while the company, through its subsidiaries, operates in California. In many respects, this case seeks to further clarify the Kiobel decision from last term.

All eyes will be on the second case that day- the Schuette case out of Michigan challenging a voter-approved constitutional amendment against preferential treatment or discrimination in employment, contracting and education. This case addresses the educational component only and will further build upon the concept of affirmative action in college admission programs. In a previous posting, I detailed the specifics of this case and what is at stake.

On Wednesday, they will hear a convoluted case out of Kansas involving the Fifth Amendment and expert testimony. The case involves a meth addict who shot a law enforcement officer, but claims that his capacity was diminished due to the use of that drug. That line of defense rested on the testimony of an expert witness. The government countered with their own expert who examined the defendant and came to the opposite conclusions. The question is whether that state expert witness violated the Fifth Amendment’s prohibition against self-incrimination.

The other case to be heard on Wednesday is whether assets can be frozen by the government before trial when those assets can be used to retain counsel for the defendants and whether this requires a pretrial hearing on the merits of the case in order to unfreeze those assets. A decision in this case may seriously affect how the government treats financial crimes when assets are regularly frozen before the defendant can get their hands on them. Opening this practice to a pretrial adversarial hearing would be akin to trying the case before trial.

Most importantly this week, one expects orders from the Court from their October 11th conference where several issues of importance were considered. Besides the class action and telecommunication cases that are of interest and affect people in ways unbeknownst to most, they will also be taking up (1) a death penalty case, (2) three gun control cases, and (3) a multitude of challenges to the regulatory power of the EPA under the Clean Air Act and as their rules apply to so-called greenhouse gases. This is in addition to the already granted case involving the EPA regarding their “downstate mitigation,” or “Transport” rule.

In the death penalty case, at issue is whether in determining if that punishment should be meted out, can the defendant introduce evidence to show that they would not be a problem in a prison population. In other words, can their “good prisoner behavior” be a mitigating circumstance in deciding the death penalty. If I understand this correctly, someone can brutally murder another with premeditation, but if they can somehow prove they would be a model prisoner they should be spared the death penalty. Hmmmm…. You have to give legal counsel a point for originality.

The first gun control issue is Abramski vs. United States. It asks whether when a lawful gun purchaser intends to sell the gun to another lawful purchaser in the future is material to the lawfulness of the sale. Secondly, does the government have a right to ask such information on a license application and then retain that information by a federally licensed gun seller. This is a challenge to a gun control law and the sometimes onerous record-keeping requirements.

The second case is whether state or local governments which require applicants for concealed weapon permits who wish to carry a handgun for self-defense purposes have to show a “good and substantial reason” for doing so before that permit is granted. This case, if granted, could push gun rights much further than either the Heller or the McDonald decisions have previously. Generally speaking, all states except Illinois (currently being litigated on its way to the Court) allow for concealed carry weapons. Some states and jurisdictions make it harder than others to obtain that permit, so much so that it acts as a de facto ban on concealed carry permits. Usually, this boils down to the applicant being required to show a “good and substantial” reason for wanting to carry a concealed weapon. “Because it is my constitutional right” or “I want to” is not a good enough reason in most areas. It seems kind of strange that if anyone wants to carry a gun for self defense they must first prove in many instances- often in an arbitrarily enforced manner- that they are in grave risk of being attacked, or have suffered an attack in the past and fear for their safety in the absence of a concealed weapon. The purpose of carrying a concealed weapon is self-defense, not to let something happen first so that I can justify self-defense in the future. If the Court actually takes this case, it will signal that they intend to wade into the gun control debate and possibly push the parameters of self defense from beyond the home- which both Heller and McDonald dealt with- onto the streets.

The third case is one that can open the government to litigation and injunctions regarding any gun control efforts passed at any level. This case asks whether consumers of firearms can sue the government over the constitutionality of laws regarding the sale of firearms. The recent trend in the Supreme Court- to hear liberals speak- is to “slam the courthouse door on the little guy.” Here, the little guy is the firearms consumer. One needs to watch if the liberal wing of the Court maintains their “defense of the little guy” approach, or if “the little guy” involves everyone except the owner of a firearm. Should they take the case and then decide in favor of the consumer, expect a lengthy and passionate apocalyptic liberal response while Piers Morgan rants and Ed Schultz’s head explodes on live television.

There are currently nine petitions before the Court challenging the EPA’s authority to promulgate rules regarding the regulation of greenhouse gases. It would be difficult to imagine the Supreme Court denying all nine cases. Make no mistake: the ramifications here are important since the regulatory role of the EPA in the economic well-being of the United States has greatly been expanded under Obama. What he cannot achieve legislatively, he is attempting to achieve by proxy through regulations involving the EPA. Leaving aside the scientific controversy regarding climate change and global warming and whether these regulations are even needed in the first place, these challenges address the power of the EPA to regulate where Congress- i.e., the people- have expressed a desire to the contrary.

Several of these petitions question the authority of the EPA on technical grounds. For example, one questions whether the EPA can promulgate rules after a determination that greenhouse gases pose a risk to public health and welfare if they did not submit those findings to the Science Advisory Council for peer review, as Congress mandates. Another questions whether specific facts as determined by the EPA exclusively should be submitted for public comment before they can promulgate regulations. Yet another asks whether when the Supreme Court decided Massachusetts vs. EPA it intended for the Supreme Court to authorize the EPA to undertake a task that Congress would not recognize under the scope of the Clean Air Act. Mainly, they deal with the means by which the EPA formulated and therefore intend to enact regulations. One of the most interesting cases involves that where the EPA recognizes an absurdity in the construction of a complex regulation yet nevertheless ignores that underlying absurdity for “public good.” In short, despite demonstrated nonsense to the contrary, does the ends justify the means? Admittedly, some of these cases can considered nuisance litigation against the EPA and may be dismissed as such. But there is ample evidence of a pattern by Obama’s EPA of sidestepping certain rules and plunging headlong into regulations.

Again, leaving aside the science of climate change and that whole controversy, the problem started with Massachusetts vs. EPA and the wording of the Clean Air Act. Given that wording, one can sort of see how the EPA was granted the power to regulate greenhouse gases. But, that does not give them carte blanche to willy-nilly formulate regulations regardless, sometimes in obvious violation of mandates found elsewhere. The Clean Air Act was passed in response to obvious air pollution problems at the time it was passed. In this area, the EPA has does a good job in identifying the problems and then addressing them. Unfortunately, because no one can put a price on public health- so the reasoning goes- economic impact and cost-benefit analysis is not part of the regulatory process which is evident in other areas.

Still, this belies the problem of how or even why the EPA should be granted a right to regulate a naturally occurring gas in the atmosphere. It is like regulating the hydrogen or oxygen levels in water. The obvious solution is for Congress to address this absurdity by amending the Clean Air Act and remove EPA regulation of greenhouse gases. In fact, the House has moved to do so, but Harry Reid in the Senate has refused to bring the House resolution to a vote in the Senate. This is probably because he knows he will lose the votes of several Democrats who secretly would like to see the EPA reigned in. With the Senate refusing to act, the next best solution may be a smack down of the EPA by the Supreme Court. I would expect them to take at least two of these cases and consolidate them.

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