BYU Law Supreme Court Review

October 2, 2015

Each year, BYU Law School hosts a Supreme Court Review at which former Supreme Court clerks and other leading commentators discuss some of the most important decisions of the Court’s most recent term. This year’s event featured a keynote address by Seventh Circuit Senior Judge Kenneth F. Ripple as well as a panel on the religious freedom implications of the decision in Obergefell v. Hodges.The last session of this year’s Review addressed four significant decisions of the 2014 term. These cases were reviewed by four BYU Law faculty members, all of whom clerked on the U.S. Supreme Court. Professor David Moore and Professor Aaron Nielson both clerked for Justice Alito, Professor Lisa Grow Sun clerked for Justice Kennedy, and Dean RonNell Andersen Jones clerked for Justice O’Connor.

First, Professor Moore covered Zivotofsky v. Kerry. This case dealt with section 214 of the Foreign Relations Authorization Act of 2003 through which Congress directed the State Department to record “Israel” as the place of birth in passports issued to children born in Jerusalem to U.S. citizen parents if the parents so requested. Consistent with the Executive’s longstanding policy that the status of Jerusalem should be resolved through international negotiation, the State Department refused.
The Supreme Court held that section 214 was unconstitutional because it interfered with the President’s exclusive power to recognize foreign states and governments. Zivotofsky was thus one of the rare cases in which the president acted contrary to Congress’s will, but nonetheless won.  As the Court explained, Congress may push back on presidential recognition decisions by refusing to approve treaties, to confirm ambassadors, etc., but it cannot interfere with the President’s sole power to decide whether a government or state is recognized or not.

Professor Moore pointed out that this opinion offered unexpected dicta regarding the 1936 decision of Curtiss-Wright. That case was a major foreign relations law decision, and a foundation for expansive executive power.  Curtiss-Wright reasoned that while domestic power was delegated to the federal government from the states, foreign affairs power was not. Curtiss-Wright also concluded that broad foreign affairs power descended on the President, and did so for functional reasons. The President is pragmatically able to act with speed, secrecy, and uniformity.  While Zivotofsky endorsed functional reasons for recognizing power in the President, Zivotofsky also pushed back on Curtiss-Wright, emphasizing that constitutional structures apply in the area of foreign affairs and that Congress has a prominent role to play in foreign affairs as well.  There will still be a question as to whether Zivotofsky is going to be treated as a big presidential power case or as a case with a significant reduction of presidential power.

Professor Sun discussed the Supreme Court case of King v. Burwell.  This case was brought by Virginia residents arguing that—contrary to IRS regulations—they were ineligible for tax-credits under the Affordable Care Act (ACA) because the federal government, rather than Virginia, set up the insurance exchange in Virginia, and the ACA limits tax-credit eligibility to those who purchase insurance in an “exchange established by the State.”

The Court held that taxpayers are eligible for ACA’s tax credits whether they purchase insurance through a state exchange or a federal exchange established in lieu of a state exchange. Chief Justice Roberts, writing for the majority, emphasized that the ACA rests on three pillars of reform: (1) insurance regulation prohibiting insurers from denying insurance or charging higher premiums to individuals with preexisting conditions; (2) an individual purchase mandate, which requires everyone to purchase health insurance or pay a penalty unless insurance premiums would cost more than eight percent of a person’s income; and (3) tax credits for low-income individuals. These reforms were intended to expand health care coverage and make it more affordable.  Chief Justice Roberts reasoned that a reading of the ACA that would disallow tax-credits for individuals in federal exchanges was “untenable” because it would undermine these congressional purposes, whereas “[a] fair reading of legislation demands a fair understanding of the legislative plan.”

“One of the…very interesting things about this opinion is that a relatively straightforward way for the Court to have gotten to this result would have been to invoke the Chevron doctrine,” Professor Sun said.  The Court, however, explicitly declined to give the IRS’s regulations Chevron deference because of the importance of the question at issue.  While “[w]e’re not quite sure yet what’s happening with Chevron deference,” it appears that the doctrine is under attack from a number of quarters.  Additionally, Sun noted that the majority opinion did not rely on many traditional canons of statutory interpretation, which might imply that the Court is less inclined to invoke those canons to elucidate Congressional intent when confronted with complex statutes that are admittedly “inarftfully drafted.”  In his dissent, Justice Scalia objected to the majority’s contextual or purposivist approach to statutory interpretation and argued that the Court was flouting traditional rules of interpretation, such as textualism, to protect the ACA.  

Professor Nielson discussed Department of Transportation v. Association of American Railroads, one of the Court’s more notable administrative law cases. On one hand, U.S. statutory law says that Amtrak is a private, non-governmental entity.  But on the other hand, Congress also instructed Amtrak and the Federal Railroad Administration to jointly issue “metrics and standards” for the railroad industry. The D.C. Circuit said those metrics and standards violate the “private” nondelegation doctrine because Congress cannot hand off regulatory power to a nongovernmental entity.

The Supreme Court reversed, holding, in essence, that no matter what a statute says, for constitutional purposes, Amtrak is the government. The decision of the Court was unanimous, with Justice Kennedy authoring the opinion. The rule seems to be that if Congress creates an entity, tells it what to do, organizes it, and funds it, then, for purposes of separation of powers, that entity is the government, no matter what Congress says. Equally notable, both Justices Thomas and Alito wrote separately to discuss the separation-of-powers problems posed by Amtrak.  Justice Thomas, in particular, offered a new theory to limit when Congress can delegate power to a federal agency.  Because this case was remanded for additional proceedings to assess whether Amtrak acted lawfully, Professor Nielson explained that “maybe more administrative changes are coming.”

Finally, Dean Jones reviewed Walker v. Texas Division, Sons of Confederate Veterans. Here the State of Texas, which offers hundreds of specialized license plates to drivers of cars registered in the state, refused a group’s request to sell a plate bearing the Confederate flag. The group sued, claiming a violation of its First Amendment rights.

The Supreme Court held that Texas did not violate the First Amendment, because the decision not to produce the specialized license plate was not a restriction of private speech based on content, but rather was the government’s own speech. Recent cases from the Supreme Court have made clear that when the government itself speaks, it isn’t bound by the same limitations that bind it when it regulates the speech of private people. Although the government cannot limit private individuals from speaking a particular message, it is completely free to decide on its own not to speak a particular message. Dean Jones pointed out that Texas offers literally hundreds of specific license plates, including ones for colleges, sports teams, and other groups. “In addition to these,” Professor Jones said, “there are some plates that are not just for fans, but take a particular position on an issue.” The holding from the Court, she said, means that all of these messages are the message of the state and not the message of the vehicle owner who selects the specialty plate.

“This is a hard case, I think, because it isn’t intuitively obvious that it is governmental speech,” said Dean Jones. She said the case did not set out a clear test for determining when speech will be considered private speech and when it will be considered government speech.