The “Contraception Mandate” Case

The Investor Class Action Case

The “Buffer Zone” Case

The Recess Appointment Case

The Public Sector Union Case

Sebelius v. Hobby Lobby: Whether The Affordable Care Act's Requirement That Insurance Plans Cover Contraception Violates The Religion Of For-Profit Secular Companies, An Unprecedented Argument

National Review Online: “Federal Law Demands” Hobby Lobby Cover Birth Control It “Consider[s] Abortifacients.” NRO editor Rich Lowry falsely stated that Hobby Lobby stores must offer an employer-sponsored insurance plan that reimburses for birth control, inaccurately claimed it is the employer - as opposed to the insurer - that “cover[s]” contraceptives, and failed to note that Hobby Lobby's belief that contraceptives are abortifacients is wrong:

Not too long ago, the Greens of Oklahoma City were law-abiding people running an arts-and-crafts chain called Hobby Lobby.

They weren't disturbing the peace, or denying anyone his or her rights. They were minding their own business -- quite successfully and in keeping with their Christian faith. The roughly 600 Hobby Lobby stores stock Christian products, close on Sundays, and play Christian music.

Then one day Uncle Sam showed up to make an offer that the Greens couldn't refuse -- literally. As part of Obamacare, federal law demands that the chain cover contraceptives that the Greens consider abortifacients. The family decided it couldn't comply with the law in good conscience, and its case is now before the Supreme Court.

Hobby Lobby went from an inoffensive business to a scofflaw and an alleged combatant in the “war on women” in no time at all -- and without changing any significant employment or business practice. Thus is the transformation wrought by the coercive sweep of Obamacare, which risks doing as much damage to conscience rights as it has done to the insurance market.

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Hobby Lobby is now bizarrely portrayed as wanting to barge into examination rooms. “Selectively denying insurance coverage for contraceptive methods an employer considers sinful,” the liberal legal lion Walter Dellinger wrote in the Washington Post, “makes the employer a party to a woman's medical consultations.” And here the Greens thought they were just selling glue, scrapbook paper, beads, and the like. [National Review Online, 3/25/14, via Media Matters]

Georgetown Law Professor Marty Lederman: In No “Real Sense” Does Hobby Lobby “Cover Contraception.” Lederman is one of many legal experts who have explained that the “contraception mandate” is a misnomer -- employers remain free to not offer any insurance plan to their employees. Furthermore, the new requirement that all American insurance plans cover without cost-sharing all preventive health services (including contraceptives, not abortifacients) is a universal benefit provided by the federal government, not a business like Hobby Lobby:

[This is not a] case about whether the government has required or coerced the Greens to pay for contraception, or about the Greens' religious exercise in their capacity as shareholders.  There's no allegation that the Greens are shareholders of the two companies, or that “their” funds would be indirectly used to make the reimbursement payments:  Hobby Lobby and Martel are operated by trusts...What the Hobby Lobby brief confirms is that this case is, instead, about whether federal law coerces the Greens to violate a religious obligation in their capacities as corporate directors, i.e., as decision-makers on behalf of the corporations.

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Once the HHS Rule goes into effect, it would not be the Greens who “directed” the Hobby Lobby and Mardel insurance plans, in any real sense, to cover contraception:  That would, instead, be a legal requirement imposed by the government--and it's a requirement that applies to any and all such plans throughout the nation, whether sponsored by an employer or not.  It would be HHS Secretary Burwell, in other words, rather than the Greens, who would be the relevant decision-maker--it is she who would “direct” the employee benefit plans to provide reimbursement for contraceptive services.

Again, the claim for the Greens' possible complicity in the employees' use of contraception is said to be attributable to their decision, as officers-directors of the companies, to choose one type of benefit plan rather than another (to “direct” the plans to cover certain services or not).  But the fact that the government has eliminated the option of operating a for-profit employer plan that doesn't include contraception coverage means that the Greens have no relevant choice to make in their capacity as directors, and thus none for which they can be morally culpable. [Balkinization Blog, 6/14/14, via Media Matters]

Halliburton v. Erica P. John Fund: Whether Supreme Court Precedent Allowing Class Actions On Behalf Of Investors Defrauded By Corporations Should Be Reversed

The Wall Street Journal: The Supreme Court's Class Action Precedent Was A “Mistake” That Congress Never “Codified.” Channeling U.S. Chamber of Commerce talking points, the WSJ urged the conservative justices to overturn Supreme Court precedent allowing modern investor class actions by falsely claiming Congress did not approve of this litigation and misleadingly asserting they were “economically destructive”:

Plaintiffs lawyers have dined out for years on the windfall of securities class-action suits, a species that has proliferated even as other class actions have failed. On Wednesday the Supreme Court revisited the case that started it all and now can restore some economic rationality to these suits.

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A new study for the Chamber of Commerce's Institute for Legal Reform found that class actions cost the economy some $39 billion a year, while shareholders only make $5 billion off the litigation. Almost all of the money paid to shareholders comes in settlements, which merely ding one set of shareholders to pay another, with the plaintiffs lawyers taking a cut. The irony that all of this is justified in the name of “efficient markets” would be hilarious if it weren't so economically destructive.

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The best outcome would be to overturn Basic so plaintiffs in securities cases would have to prove individual harm the way plaintiffs in other class actions do. If that's too much precedent toppling for the Chief, he can at least require some evidence of price movement resulting from a misstatement before a class is formed. The Basic standard has never been codified by Congress and remains a creation of the Justices. The High Court ought to be willing to revisit its economic mistakes as much as its legal ones. [The Wall Street Journal, 3/6/14, via Media Matters]

Current And Former Congressional Members: Congress Was Invited To Reject Investor Class Actions And Instead “Preserve[d] The Law.” As explained by members of Congress involved in the drafting of recent federal securities law, “Congress has twice legislated on the specific issue” of whether Supreme Court precedent stretching from 1986 to 2013 that undergirds shareholder class actions should be overturned, but rejected the suggestion. In fact, Congress “did not intend to simply refrain from commenting,” but rather passed two separate acts that affirmed these class actions:

Congress has twice legislated on the specific issue Halliburton raises here: private securities class-action litigation. In both the [Private Securities Litigation Reform Act of 1995 (PSLRA)] and the Securities Litigation Uniform Standards Act (SLUSA), Congress imposed limits on such class actions to strike a balance between the need to protect investors, on the one hand, and issuers' ability to raise capital without fear of strike suits, on the other. In enacting the PSLRA, Congress was expressly invited to revisit Basic [v. Levinson]. It refused to do so. Thus, Congress did not intend to simply refrain from commenting altogether--but instead sought to preserve the law as it stood. That is clear both from Congress's decision not to reconsider Basic and from numerous provisions of the PSLRA that make sense only if class-based fraud-on-the-market suits are permitted. Later, when Congress decided to supplement the PSLRA by enacting SLUSA, Congress again left Basic intact. Viewed in light of Congress's policy objectives and the alternatives it considered, the enactment of the PSLRA and SLUSA constitutes legislative validation of Basic.

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[T]his Court correctly observed in Amgen [v. Connecticut Retirement] that Congress has endorsed Basic and its embrace of the fraud-on-the-market theory. [Brief for Current and Former Members of Congress and Staff as Amici Curiae Supporting Respondent, 2/5/14, via Media Matters]

McCullen v. Coakley: Whether Supreme Court Precedent Allowing “Buffer Zones” Around Abortion Clinic Entrances To Separate Anti-Choice Protesters From Doctors And Patients Should Be Reversed

The Wall Street Journal: The “Real Purpose” Of Buffer Zones Was To “Criminalize Peaceful Political Speech.” Ignoring the extensive and well-documented history of violence and terrorism aimed at abortion clinics since the 1980s, the WSJ encouraged the conservative justices to overturn recent reproductive rights precedent that found public safety concerns must be balanced alongside the free speech rights of anti-choice protesters:

In McCullen v. Coakley, 76-year-old Eleanor McCullen wants to stand outside clinics to change the mind of women who may want an abortion. She is challenging a 2007 Massachusetts law that says only patients and clinic employees can stand within a 35-foot radius of the entrance of a “reproductive health facility.” Violators can be fined up to $500 for a first offense, and repeat offenders punished with fines up to $5,000 and two and a half years in jail.

The Bay State's law is based on a Colorado statute that created zones of restricted speech around health-care facilities. The Colorado law targeted even peaceful protesters who had to ask permission to come closer than eight feet to a patient near an abortion clinic. 

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Massachusetts claims its law is content-neutral because it would also arrest, say, an environmentalist who protested within 35 feet of an abortion clinic. But fracking is not a hot topic outside clinics. The state also says the law is merely intended to stop protesters who physically block women seeking abortions, but it is already a state and federal crime to intimidate or harass women outside clinics and there have been few such arrests.

The real purpose of the state's abortion buffer zones is to limit, and criminalize, peaceful political speech. [The Wall Street Journal, 1/14/14, via Media Matters]

Anti-Defamation League: Anti-Choice Violence Remains “A Source of Domestic Terrorism And Violence.” Not only was the Massachusetts “buffer zone” at issue enacted in the wake of anti-choice murders at Massachusetts women's health centers, such attacks are an ongoing national problem. As the ADL and others have explained, the 35-foot distance protesters are required to keep from the front doors is to protect people from violent protesters, not “peaceful” ones:

The recent arrest in Green Bay, Wisconsin, of Francis Grady, 50, for allegedly setting off an incendiary device at a Planned Parenthood clinic serves to remind Americans of another form of domestic extremism: anti-abortion violence. Like environmental and animal rights violence, anti-abortion violence is a form of single-issue extremism. Typically, single-issue extremism emerges as an ultra-radical wing of a much broader social or political movement, a wing so agitated about its chosen cause that its adherents may come to believe that violence in the service of that cause is justified or even required.

The radical anti-abortion movement emerged in the 1980s; its violence peaked in the early 1990s with dozens of bombings, arsons, murders and attempted murders. The frequency of anti-abortion violence began to ebb in the mid-1990s, but never dissipated entirely. Anti-abortion violence has actually remained a consistent, if secondary, source of domestic terrorism and violence, manifesting itself most often in assaults and vandalism, with occasional arsons, bombings, drive-by shootings, and assassination attempts. As one anti-abortion extremist, while serving a prison sentence for anti-abortion arsons, put it in 2010: “Abortionists are killed because they are serial murderers of innocent children who must be stopped, and they will continue to be stopped.” [Anti-Defamation League, 9/4/12, via Media Matters]

National Labor Relations Board v. Noel Canning: Whether Centuries Of Constitutional Presidential Recess Appointment Practice And Precedent Should Be Rejected

Fox News: The U.S .Court Of Appeals For The D.C. Circuit “Clipped President Obama's Wings.” Fox News host Megyn Kelly and frequent Fox guest Jay Sekulow pretended that the radical decision of the appellate court that invalidated centuries of recess appointment practice and precedent was a narrow rebuke of President Obama's exercise of this constitutional authority for NLRB vacancies:

KELLY: [O]ur top story right now: a federal appeals court ruling that President Obama violated the Constitution when he sidestepped the Senate and filled open positions on the National Labor Relations Board. The ruling that raises questions about hundreds - hundreds - of decisions issued by that board, most of which have been very pro-labor for more than a year now. Do those stand? Are they void? Are they thrown out? Who's on the NLRB right now? Can it even adjudicate anything?

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SEKULOW: Let's look at what the Constitution says, which is what the court said here. Recess appointments for the first 100 years of our Constitution were rarely ever used by a president and it was when the Congress was in the recess. And all the court did here was say what the Constitution says, which is when the court's in the recess, a recess appointment can be made. When it's not, it's not. They weren't here.

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KELLY: What does this mean right now, Jay? Are these decisions over the past year void? There have been some important decisions out of the NLRB over the last year.

SEKULOW: They're void. The three-judge panel at the U.S. Court of Appeals for the District of Columbia said the appointments were invalid from their outset and that means the decisions made by them was not a quorum, court addressed that issue, those opinions and those decisions that came out from the NLRB  -- void, period. [Fox News, America Live, 1/25/13, via Media Matters]

Reuters: The Appellate Court “Upturned 190 Years Of Understanding About How A President May Fill Vacant Jobs.” Although the case began as a challenge to President Obama's refusal to acknowledge the artifice of a Senate pretending it is in session during intra-session recesses, a conservative panel of the D.C. Circuit reached far beyond that question to reinterpret the constitutional intra-recess appointment power itself. As explained by Reuters, the unexpected “sweeping ruling” of these conservative judges not only challenged the validity of recess appointments made by presidents of both parties for decades, it also “directly contradicted a 2004 ruling from the federal appeals court in Atlanta”:

Obama's lawyers [intend] to rebound after a blockbuster ruling on Friday, when a court in Washington, D.C., held that three recess appointments to the National Labor Relations Board (NLRB) were invalid.

Although the three-judge ruling on Friday upturned 190 years of understanding about how a president may fill vacant jobs, it will not take effect immediately.

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Once rare, recess appointments became more common in the late 1970s as a way to bypass the confirmation process, which senators have used increasingly to block a president's nominees, including the three Obama put forward for the NLRB.

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The U.S. Constitution says that presidents have the authority to fill a high-level vacancy without Senate approval if the Senate is in “the recess.”

With such vague language, presidents of both major U.S. parties have made increasingly liberal use of the power.

Friday's sweeping ruling from the U.S. Court of Appeals for the District of Columbia Circuit said that the president cannot decide on his own when the Senate is in recess and that “the recess” happens only about once a year, not whenever lawmakers break from Washington for a few weeks.

The decision directly contradicted a 2004 ruling from the federal appeals court in Atlanta. [Reuters, 1/28/14, via Media Matters]

Harris v. Quinn: Whether Supreme Court Precedent That Holds Employees In Unionized Workplaces Must Pay Fair-Share Dues Should Be Reversed

The Wall Street Journal: Justice Scalia Should Not “Forfeit This Chance” To Weaken Unions. The WSJ expressed concern that Scalia did not appear to be as eager as his conservative colleagues to overturn decades of labor law and hold that public sector unions could no longer require non-members to pay non-political dues for contract negotiations they benefit from:

This week's Supreme Court oral argument in Harris v. Quinn showed that four Justices seem ready to provide a major victory for First Amendment rights over monopoly union power. The conservative Justice on the fence seems to be none other than Antonin Scalia, whose concerns as always are serious and deserve a response.

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Since [1977] the High Court has tried to protect worker First Amendment rights by drawing a line. Workers can be compelled to pay dues that go to collectively bargain for wages and benefits, but they can't be compelled to pay dues that go to political activities. Justice Scalia seems happy with this line and isn't sure [the precedent] needs to be overturned or modified.

The constitutional answer is that being forced to join a public union is different from a union in private industry in its politically coercive implications for free speech. Take a teachers union that collectively bargains for higher pay and benefits for its members. Lobbying to raise teacher wages is taking a political position that government spending ought to be greater, and perhaps taxes higher.

Arguing for bigger government is inherently a form of political speech that individual dues-payers may disagree with. Those workers are thus forced to subsidize speech they don't like, which the High Court has found in other cases violates the First Amendment.

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We realize this is getting into the legal weeds, and tangling with Justice Scalia is one of life's more harrowing experiences. But the High Court has a major opportunity to restore a first constitutional principle -- dare we say even an originalist one -- and we'd hate to see such a stalwart supporter of the First Amendment as Justice Scalia join the liberals in forfeiting this chance. [The Wall Street Journal, 1/22/14, via Media Matters]

Harvard Law Professor Benjamin Sachs: Scalia Previously Concurred In Favor Of The Unions In Another Case That Is “Precisely The Situation in Harris.” Labor law expert Sachs pointed out that public sector unions are required by law to represent non-members in the unionized workplace, which is why the Supreme Court has long held they can constitutionally collect a “fair share” in dues for this advocacy. This collection of dues for contract negotiations -- not political activities -- is to prevent a “free-rider” problem that Scalia himself acknowledged in a 1991 concurrence:

An excellent statement of this proposition comes from Justice Scalia's concurrence in Lehnert v. Ferris Faculty Ass'n.  Here is how Justice Scalia put it:

“Our First Amendment jurisprudence recognizes a correlation between the rights and the duties of the union, on the one hand, and the nonunion members of the bargaining unit, on the other. Where the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them; or, looked at from the other end, where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost. The 'compelling state interest' that justifies this constitutional rule is not simply elimination of the inequity arising from the fact that some union activity redounds to the benefit of 'free-riding' nonmembers; private speech often furthers the interests of nonspeakers, and that does not alone empower the state to compel the speech to be paid for. What is distinctive, however, about the 'free riders' who are nonunion members of the union's own bargaining unit is that in some respects they are free riders whom the law requires the union to carry -- indeed, requires the union to go out of its way to benefit, even at the expense of its other interests. In the context of bargaining, a union must seek to further the interests of its nonmembers; it cannot, for example, negotiate particularly high wage increases for its members in exchange for accepting no increases for others. Thus, the free ridership (if it were left to be that) would be not incidental but calculated, not imposed by circumstances but mandated by government decree.”

This is precisely the situation in Harris v. Quinn. [On Labor, 10/3/13, via Media Matters]