The Supreme Court cases constitutional law experts are watching

January 22, 2020 | By PLF
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There are many cases before the Supreme Court that will set important precedents in PLF’s battleground areas of freedom of speech, property rights, equality before the law, economic liberty, and separation of powers. The decisions to many of these cases have the potential to strengthen Americans’ individual rights, or deliver more power to government.

Some of the cases that PLF attorneys will be following this term include:


County of Maui, Hawaii v. Hawaii Wildlife Fund

The Clean Water Act makes it clear that the states, not the EPA, have the authority to regulate groundwater. But what if the groundwater eventually flows into a navigable waterway—which the federal government can regulate? In County of Maui, Hawaii v. Hawaii Wildlife Fund, the Ninth Circuit held that the EPA could regulate Maui’s injection of treated sewage into the ground because, after a few years, the water reaches the Pacific Ocean. The importance of this case extends far beyond Hawaii because it could give the EPA a back door to regulating all things affecting groundwater.

County of Maui, Hawaii v. Hawaii Wildlife Fund was argued on November 6, 2019 and the Court will decide the case before July, 2020.


Bay Point Properties v. Mississippi Transportation Commission

Last term, in Knick v. Township of Scott, the United States Supreme Court ruled that a property owner’s property rights are violated when a local government takes private property without compensating the property owner. When that happens, the property owner may bring a claim in federal court. That landmark decision overruled a case that for decades had barred property owners from suing the government in federal court when their property rights were violated.

But because Knick involved a local government, the Court did not address whether state government officials may still avoid federal courts under another provision of the Constitution.

In the early days of the Republic, people were concerned that state sovereignty could be threatened if state governments could be sued in the federal courts. The nation adopted the Eleventh Amendment to the Constitution to prevent such lawsuits in federal court. But after the Civil War, the Constitution was amended again, this time to guarantee that states could not take away the rights described in the Bill of Rights.

In Bay Point Properties, Inc. v. Mississippi Transportation Commission, PLF is asking the U.S. Supreme Court to resolve the longstanding conflict between the Fifth Amendment’s command that government pay just compensation when it takes private property and the states’ Eleventh Amendment right not to be sued for damages in the federal courts. A resolution of this conflict will help ensure that the right to just compensation is fully and faithfully enforced across the nation.

The Supreme Court will decide whether they hear this case after February 20.


Espinoza v. Montana Department of Revenue

Espinoza v. Montana Department of Revenue involves a Montana scholarship program designed to help families send their children to the school of their choice. The program gave a modest tax credit for people who decided to fund scholarships for families to send their children to private school. In 2018, the Montana Supreme Court invalidated Montana’s school choice program, because some of the participating schools were religious.

This decision meant that Montanans like Kendra Espinoza, a low-income mother of two, could no longer use the scholarship to send her children to private school. The Supreme Court will decide whether the Montana Supreme Court’s decision was wrong on three separate constitutional grounds. First, the Court will consider whether the Montana decision violates the Constitution’s guarantee of freedom of religion. Second, it may decide whether the Montana program somehow “established” a state religion in violation of the Constitution’s  Establishment Clause. And finally, the Court is being asked to decide whether the state court’s decision treats religious schools differently from non-religious schools in violation of the Equal Protection Clause of the U.S. Constitution. The decision will affect the ability of low-income parents nationwide to send their children to the schools that best meet their needs.

Espinoza v. Montana Department of Revenue had oral arguments before the Court on January 22.


Elster v. City of Seattle

In Elster v. City of Seattle, two Seattle property owners are challenging a new-fangled campaign-finance scheme that Seattle calls “democracy vouchers.” Each election cycle, Seattle residents receive four $25 vouchers, which can be used only as a political contribution to local electoral campaigns. The vouchers are funded through a dedicated property levy, thus forcing property owners to pay for other people’s campaign contributions.

The plaintiffs argue this scheme violates their First Amendment right to refrain from sponsoring speech they oppose. This “compelled subsidy” doctrine of the First Amendment has typically applied in the union context, protecting non-members from being forced to pay union dues. Elster presents an important opportunity for the Supreme Court to extend that doctrine to other compelled subsidies of speech.

The Supreme Court has not decided whether it will hear this case yet, but PLF and other First Amendment advocates are hoping it will.


Yim v. City of Seattle

In Yim v. City of Seattle, a group of small-time landlords are challenging a Seattle ordinance that prohibits them from choosing their own tenants. Dubbed the “first-in-time” rule, this law forces landlords to offer their rental property to the first qualified applicant, even if the landlord has legitimate reasons for preferring someone else.

The landlords argue that the first-in-time rule is a “taking” of their property because it prevents them from exercising an essential attribute of property ownership: the right to decide whom to invite or exclude from your property. The landlords also argue that the law violates due process because it imposes an “unduly oppressive” burden on property owners. The Yim case gives the Supreme Court an important opportunity to add much-needed clarity to takings law and reinvigorate the Constitution’s Due Process protections for private property.

The Supreme Court has not yet decided whether it will hear this case, but PLF and other Property Rights advocates are hoping it will.


Americans for Prosperity v. Becerra

In recent years, the State of California has tried to force all nonprofit organizations that solicit donations in California to turn over otherwise confidential lists of their donors. Americans for Prosperity v. Becerra could decide whether states are allowed to target nonprofit donors by exposing who they give money to.

In 1958, in the case N.A.A.C.P. v. Alabama, the Supreme Court recognized that the First Amendment contains an important privacy component, because the loss of anonymity to government could deter some individuals from freely associating with each other. The Court noted that such association is an important and longstanding means of engaging indirectly in public speech.

The Ninth Circuit Court has already ruled in favor of California, which has the potential to chill nonprofit donations nationwide and opens the door for similar—or even more invasive—donor disclosure laws across the country. PLF filed a brief urging the Supreme Court to take the case and reaffirm its longstanding precedent protecting the private association of individuals.

The Supreme Court has not yet agreed to hear this case, but hopefully it will and determine whether California’s law violates donors’ First Amendment rights.


Seila Law LLC v. Consumer Financial Protection Bureau

Here, the Court will consider whether the structure of the Consumer Financial Protection Bureau (CFPB) runs afoul of the Constitution’s separation of powers.

The CFPB is a so-called “independent” agency within the executive branch. Traditionally, an agency is “independent” when its leaders cannot be summarily removed by the president, who is after all the head of the executive branch. That independence is tempered by the fact that most independent agencies are led by multiple board members or commissioners who check each other and help prevent an independent agency from going rogue. The CFPB, however, is headed by a single director who admittedly wields sweeping powers. The director thus faces no internal checks and remains immune from summary removal by the president.

The Founding Fathers warned against concentrating too much power in any one place. James Madison wrote in Federalist Paper No. 47 that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Without the checks and balances demanded by the Constitution, an agency like the CFPB can act dangerously and with impunity.

Seila Law LLC v. Consumer Financial Protection Bureau will have oral arguments on March 3.


Eastern Oregon Mining Association vs. Oregon Department of Environmental Quality

Over the past few decades, the Environmental Protection Agency has slowly claimed expanded authority over almost any activity that has even a remote connection to any water within the United States. But the underlying statute—the Clean Water Act—has remained unchanged. Because penalties for land owners who allegedly violate the Clean Water Act can quickly reach into the millions, this slowly expanding authority, or “administrative creep,” has substantial real-world consequences.

One such example of this administrative creep is attempts to regulate suction dredge mining, especially within waterways in the western states. The Clean Water Act authorizes the EPA to issue permits only where there is “any addition of any pollutant” to a waterway. But suction dredge miners add nothing to the streams and rivers in which they mine—rather, they suck up streambed material and remove certain heavy metals. Often, in addition to gold, the miners recover previously introduced pollutants, like mercury.

The Supreme Court hasn’t yet agreed to take this case, but PLF is hoping that the Court will take the case and beat back EPA attempts to regulate activities that were never intended by Congress to fall under the Clean Water Act.


U.S. v. Aurelius Investment

When Puerto Rico racked up $100 billion in debt, Congress stepped in to help the Commonwealth manage its debt by establishing an oversight board and empowering it to enter into bankruptcy-like proceedings to eliminate the Commonwealth’s debt.

Controversially, however, the board—although nominally part of the Puerto Rican government—is not accountable to the governor, elected officials, or the people of Puerto Rico. The members of the board are also selected in a constitutionally dubious fashion, as none of the board’s members were selected with the advice and consent of the Senate, as required for constitutional officers. Creditors challenged the board’s authority on the ground that its members were appointed in violation of the Constitution’s Appointments Clause. In this case, the Supreme Court will decide what constitutional limits govern Congress’ actions when it is managing United States territories, and may also rule on whether the de facto officer doctrine can be applied to the actions of government agencies that were structured contrary to requirements of the Constitution.

U.S. v. Aurelius Investment had oral arguments before the Supreme Court on October 15, 2019.