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Prof. Hanna Picks U.S. Supreme Court Cases Vermonters Should Watch

September 27, 2011

By Cheryl HannaImage of Cheryl Hanna
Professor of Law, Vermont Law School

The first Monday in October marks the first day of oral arguments at the U.S. Supreme Court. So far, the Court has granted about half of its usual 80 or so cases that it will decide by June of 2012. And while there is no case yet on the docket that has originated in Vermont, there are many cases that may be of interest to Vermonters either because the outcome could impact our state or because the case is just super interesting. Here's my list:

Image of cattle1. National Meat Association v. Harris: Some of you may have heard my VPR commentary on this case. It involves pre-emption and as any Vermont Yankee trial-watcher can tell you, pre-emption is the central question in that case as well. In National Meat Association v. Harris, the Supreme Court will decide whether a California law that requires slaughterhouses to immediately euthanize animals that are unable to walk - sometimes referred to as downed animals - conflicts with the Federal Meat Inspection Act, which requires that such animals be separated and observed for disease but not immediately killed. There's always the fear that the downed animal has a disease that can be passed onto humans. Under federal law, many of these downed animals do end up being slaughtered and eventually eaten. Under California law, no downed animal would be in the food supply. California claims that it's regulating the ethical and humane treatment of animals, a different motive than food safety, which would be pre-empted under federal law. Sound familiar? This case could provide some guidance to lower courts on how to evaluate the VY case. It's also an important case to watch because Vermont lawmakers may decide to impose stricter regulations on our slaughterhouses, and this case will set the parameters for when a state can do so in light of federal law.

2. Douglas v. Independent Living Center: The outcome of this case could have significant consequences as Vermont tries to develop the first single-payer health care system. This, too, is a pre-emption case involving Medicaid payments to health care providers. Medicaid is a voluntary joint federal/state program. The feds provide money to the states, which then must comply with certain federal regulations, including making sure that payments are reasonable enough to ensure a certain quality of care. California, facing big budget problems, passed a law reducing Medicaid payments. A bunch of groups, such as the Hospital Association, as well as patients that receive Medicaid payments sued to stop California from implementing its law. The technical legal question is whether federal law pre-empts these folks from suing, meaning that only the federal government, because it provides the money, can stop a state from lowering payments. The bigger question is whether states will now have to defend against lawsuits from providers and patients whenever they set rates. Vermont Attorney General Bill Sorrell signed onto an amicus brief asking the Court to side with the state of California.

3. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC: This case is mostly interesting to me because I attended Hosanna Tabor, a small parochial school in Redford, Mich., a small, working class suburb outside Detroit from first through sixth grades. (What are the odds that there would be a SCOTUS case from my alma mater?) This case involves a really interesting question about the separation of church and state. The case involves a teacher who developed narcolepsy and went on medical leave. When she tried to return, the school had given away her job and then fired her. She sued under the Americans with Disabilities Act, which would have forbidden the school from doing so. But the school claimed the teacher was exempt from federal law because she was "called" to teaching and performed duties not so dissimilar from that of a minister. Ministers and other clergy are exempt from federal employment law under the theory of the separation of church and state. But janitors that work at a church still are protected because they do not perform religious functions. The question before the Court is whether parochial school teachers who teach mostly secular subjects but have special religious training are also exempt from federal law. The Equal Employment Opportunities Commission argues that exempting teachers would leave thousands of employees (mostly women who teach for salaries below those of their public school counterparts) without workplace protections when religion is not the reason for the firing. Hosanna Tabor says the federal government should not impose its laws on the church. By way of full disclosure, I signed onto an amicus brief filed by other law and religion professors in support of the EEOC position. In Vermont, we do not have an abundance of parochial schools, but the ruling could affect any teacher at a parochial school in our state.

Image of Supreme Court4. United States v. Jones: This is the criminal case to watch this year. At issue is whether the police can put a GPS tracking device on your car, indefinitely, either with or without a warrant. It is one of those classic Constitution-meets-new-technology cases-and a little Big Brother-ish! Police had a warrant in the Jones case and tracked an accused major drug dealer. Interesting question for Vermont is whether, if the Court holds that there is nothing wrong with such tracking under the U.S. Constitution, whether the Vermont Supreme Court will part ways and require greater protections for privacy under the state Constitution as it has sometimes done. And don't forget we are waiting the appointment of a new Vermont Supreme Court justice to fill the seat vacated by retired Justice Denise Johnson. She was committed to departing from federal standards when it came to the rights of criminal defendants. It will be interesting to see if the new justice follows in her footsteps.

5. M.B.Z. v. Clinton: This case falls into the category of super interesting but not much direct impact on Vermonters. During the Bush administration, Congress passed a law requiring the secretary of State to record the place of birth on passports of U.S. citizens born in Jerusalem as Israel, if they request that. While President Bush didn't veto the law, he did say in a signed statement that he would not necessarily comply with the law if it frustrated foreign policy. Then and now, State Department policy is to record only Jerusalem as the place of birth given the ongoing dispute in the Middle East. This policy allows the United States to stay neutral relative to disputed territory, but Congress maintained that individuals should have the personal choice to list Israel and that such a policy would have little impact on foreign relations. The Court has to decide two things: First, can it even hear this case, or is this simply a political dispute between the executive branch and Congress. Second, if they do hear it, did Congress encroach on the president's authority under the Constitution to recognize foreign nations. It is a very important case on the balance of powers. My Constitutional Law class used M.B.Z. as a case study and ultimately split evenly on whether the president can ignore Congress on this one. This one is very hard to predict, but the outcome will expand or limit the powers of the president in the area of foreign relations.

6. CompuCredit Corp. v. Greenwood: This is the most important case on the docket that could affect the rights of consumers, including Vermonters. Congress passed the Credit Repair Organization Act (CROA) to protect consumers from credit repair organizations' unfair practices. Many of these organizations prey on the financially vulnerable, promising to help folks with debt but instead taking their money and making matters worse. In the language of the CROA, Congress gave consumers the "right to sue" these organizations. But CompuCredit had consumers sign agreements stating they would agree to binding arbitration, forgoing the right to sue in court, which is the legal venue in which consumers often fare much better. The Court will have to decide if Congress intended the term "sue" to include arbitration, noting that the federal government has long favored arbitration as a means to settle disputes. In recent years, the Court has made it difficult to bring class action lawsuits and held that federal arbitration statutes pre-empt state laws allowing for consumers to go directly to court. This case is widely expected to be another win for industry.

Image of shore pollution7. Sackett v. EPA: This is no doubt one of the most important cases for environmental advocates and lawyers. It could seriously undermine the ability of the EPA to enforce the Clean Water Act and other federal environmental laws. The Sacketts purchased land in a residential subdivision in Idaho and filled a wetland to build their home without EPA approval. Afterward, the EPA determined this land constituted a protected federal wetland and served the Sacketts with an administrative compliance order charging a violation of the Clean Water Act. The order required the Sacketts to reverse the changes they had made to the land and threatened civil and criminal penalties without permitting the Sacketts to challenge the order. The Sacketts argue they have the right to sue in federal court before complying with the order, and that the order violates their right to due process.

8. The Constitutionality of the Affordable Care Act: This important case is not yet on the docket but soon will be. There are a number of cases making their way to the Supreme Court on the question of whether the federal health care legislation that requires individuals to purchase health insurance or pay a penalty violates the Constitution, particularly Congress's power under the Commerce Clause. This case is a big deal for Vermont because our new health care plan is partially dependent upon more universal health coverage at the national level. If the Court strikes down part or all of the ACA, Vermont may have a much harder time implementing and paying for our health care system. Many expect that the Court will take on at least one of these cases this term, issuing an opinion by June 2012, just a few months before the next presidential election.


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