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The Supreme Court’s February Docket

Having completed the January sitting of the Supreme Court, they heard oral argument in 12 cases. Four of them could be considered major cases. In National Labor Relations Board vs. Noel Canning, the Court was asked to wade into the concept of recess appointments and whether Obama’s appointment of members of the NLRB was constitutional. Although the government made it appear that all hell would break loose should they not prevail, it became obvious that under previous Supreme Court doctrine, all NLRB decisions need not be reversed, reviewed or overturned even though the appointments may have been unconstitutional. Noel Canning may not win in the practical sense, but a decision here will send a strong message and put the brakes on Obama’s abuse of recess appointments. In the case of McCullen vs. Coakley, the Court was asked whether a 35-foot buffer zone around abortion clinics violated the First Amendment. As I noted in a previous article, given the Court’s recent free speech jurisprudence and Kagan’s obvious reservations about the size of the buffer zone, it is hard to see Massachusetts prevailing in this case. In Harris vs. Quinn, the question was whether a state can make home health care providers de facto state employees and subject to collective bargaining by inclusion in a union (SEIU in this case) because these workers are paid with Medicaid funds. The back story here is that the entire action was done by executive order by Governor Pat Quinn of Illinois and has all the appearances of political patronage for a steady Democratic ally in Illinois and elsewhere- SEIU. This is an important labor law case and one that will be watched closely when decided. It should be noted that SEIU has not performed very well in the recent past before this Court. Finally, there was the Abramski case where the Court touched upon a gun control law that involves so-called straw purchases. The facts of this case seem more clear cut than the underlying law. Abramski, a retired police officer, bought a gun for his uncle in Virginia. His uncle lived in Pennsylvania. The uncle had provided the money for the purchase and Abramski bought the gun in Virginia because of a discount afforded retired police officers. He returned the gun to Pennsylvania where he followed the law and the transfer from him to his uncle was done through a licensed dealer in Pennsylvania. The government contends the original purchase in Virginia was illegal since the purchase was for the uncle and by marking that he was the buyer on the application- which he obviously was since he was the one physically present in the gun shop, handed over the money, passed the background check, and took possession of the gun- he lied on the application because the gun was really for the uncle.

This is a case of the federal government reading way too much into the statute and using Abramski as a scapegoat possibly to test the limits of how far they can prosecute these instances of “straw purchases.” One understands the purpose of disallowing straw purchases- you do not want someone purchasing a firearm then handing it over to some other nefarious person. That is clearly not the case here; the uncle passed the background check in Pennsylvania easily. It would be a sad day when a law-abiding ex-police officer follows the letter of the law only to find out that he violated that very law. This is a bizarre case and it will be interesting to see the outcome. What troubled this writer was Justice Alito’s line of questioning where he seemed to intimate that if Abramski prevails here, then Congress wrote a meaningless law and he tried to get to Congress’ intent rather than the clear wording of the statute. If anything, Alito’s line of questioning appeared to support the government’s viewpoint somewhat, but we shall see.

With federal holidays in February, the Supreme Court will hear oral argument in only four cases towards the end of the month. One will be a very major case. Two of the others are more or less linked together somewhat and they address the awarding of attorney fees in certain civil cases in federal courts under exceptional circumstances and whether courts can actually do so. They originate out of the Federal Circuit (not to be confused with the DC Circuit) which has been a recent whipping boy of the Supreme Court. Another case involves whether if a loan was obtained under fraudulent circumstances, can the return of collateral satisfy in whole or part the awarding of civil penalties to the prevailing party?

The important case is in reality eight cases consolidated into one. Additionally, three companion cases were dismissed without comment. In 2007, the Court ruled in Massachusetts vs. EPA that the EPA had the authority to regulate greenhouse gases from vehicles. In that decision, Massachusetts had sued the EPA to promulgate and enforce these regulations on vehicles. Some people erroneously believe it was the other way around- that Massachusetts sued to stop the EPA. In 2007, the question came down to the EPA’s authority and since the Clean Air Act granted that agency the power to regulate “any” air pollutant provided they deemed it a threat to public health or the environment, the Court ruled in favor of Massachusetts which forced the EPA to promulgate these regulations with respect to vehicles.

It needs to be noted that the Court, in a 5-4 decision then, did not dispute the alleged science behind the concept of global warming and took the EPA’s determination that it was a threat to the public health at face value. So if anyone is thinking this case and a subsequent ruling will somehow judicially decide the controversy over global warming’s existence, they will be seriously mistaken. Since several of the questions were swept away in the petitions to hear this case, they winnowed it down to a single issue which mirrored the Obama administration’s brief: does the EPA’s authority to regulate greenhouse gas emissions from vehicles automatically trigger an authority to regulate these same gases (pollutants) from stationary sources like power plants and factories? The Court is not an arbiter of the alleged science, but it is an arbiter of (1) the process and (2) the statutory power of the EPA.

Some of the original petitions- subsequently dismissed- questioned the process. Thus, this likely comes down to the EPA’s powers. In one sense, the Court opened this can of worms in 2007,but in another sense, Congress is responsible. The original Clean Air Act listed six specific pollutants for the EPA to regulate: carbon monoxide, lead, nitrogen oxide, ozone, sulfur dioxide, and particle pollution. If they had left it at that, it would be one thing but they also included “any” other pollutants. Environmentalists won in 2007 when the Supreme Court, reading the clear wording of the Act, determined that the EPA had the authority to regulate greenhouse gases if and when they determined it was a pollutant that caused harm to the public health or the environment. They subsequently did so and initiated regulations on vehicles. Carbon dioxide emissions, although not specifically written into the Act, are no different than the EPA determining that fluorocarbons or mercury are pollutants and then coming up with regulations. Since 1980 there have been numerous cases of deference to the EPA when it came to the declaration of “any” pollutants and then promulgating regulations. In most cases, they begin with the smaller sources and then move on to the bigger sources. This determination is considered the “triggering” mechanism for that authority.

It is hard to see industry prevailing here given the wording of the Clean Air Act and the history since 1980. I hope I am wrong and that more sane heads will prevail this time around, unlike 2007 when a naturally occurring gas which all life depends upon is suddenly declared a “pollutant” because environmentalists pressured the EPA based on what may very well be very flawed science. But, as I noted earlier, Congress is at fault here for not reigning in the EPA with respect to greenhouse gas regulations. Considering that 98% of the original six pollutants have been eradicated from the environment, it is high time that the Clean Air Act be updated and the decision whether or whether not to regulate greenhouse gases be left to the legislative process, not the Courts and certainly not a regulatory agency. Republican attempts to do so have passed in the House since 2010, but the Senate has refused to even consider these measures.

If anything else, this proves that reforms are needed when Congress passes these laws with the potential to grant unprecedented powers to regulatory agencies. Often, they lack the foresight to see the unintended consequences of their actions. There is nothing wrong with that; they are legislators, not soothsayers. But, they can anticipate and even expect negative consequences by requiring that these laws be revisited every five years for re-authorization, that the regulations that brought about the desired results be codified and that the cumbersome ones be eliminated. Additionally, it is high time that there be cost-benefit analysis applied to environmental regulations. One can make a serious argument that climate change has no effect on human public health unless we seriously stretch the original intent of Congress. let alone the definition of “public health.” In this case, resulting regulations have the potential to have a serious impact on the American economy and on the average utility bill of Americans. Again,it is not the Supreme Court’s role to dictate or even suggest this. It is the role of Congress to correct the wrongs of their past actions.

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