Top Ten Articles of 2018

Quite a bit happened in the world of legal news in 2018, and our Editorial Staff members on hand to keep us all updated each week. To reflect on the year that has passed and look forward to the year ahead, we are celebrating our members and their hard work by counting down our most-read articles of 2018!

10. USSF: Playing Money or Soccer?

This March article, written by Nicholas Constantino, explores soccer leagues in the United States and discusses the NASL’s decision to cancel its season after its request for a preliminary injunction was not granted.

 

9. Georgia Tax Bill Clear for Takeoff While Second Amendment Grounds Delta’s Exception

This March article, written by Erika Simonson, explores the intersection between a $50 million tax cut and the national gun control debate, and its affect on Delta airlines.

 

 

8. What RBG Says (Or Doesn’t Say) Goes: Understanding the Debate Over the Ginsburg Standard’s Application in the Upcoming Confirmation Hearings of Supreme Court Nominee Brett Kavanaugh

This August article, written by Nicolette Zulli, explains the “Ginsburg Standard” and explores how the standard may be used in upcoming Supreme Court confirmation hearings.

 

7. Understanding Securities Laws: Why Elon Musk Might be in Hot Water After Tweeting About Taking Tesla Private

This September article, written by Nolan Kokkoris, explores a controversial tweet sent by Elon Musk, and explained how his company, Tesla, could be held liable for the message.

 

 

6. Closed Chambers: Sexual Misconduct in the Federal Judiciary

This January article, written by Nicolette Zulli, discusses the federal judiciary’s move to reform its reporting and investigation policies for sexual misconduct by federal judges.

5. Reevaluating Cross-Racial Identification: NY Juries to Be Informed of Potential for Inaccuracy

police line-up

This January article, written by Caitlyn Buckman, discusses a New York Court of Appeals decision holding that some cross-racial identifications can force a jury instruction on the “cross-race effect.”

4.  Facebook Faced with Data Breach Controversy

This March article, written by Amy Johnson, discusses the major Facebook data breach and the potential legal consequences that could follow.

 

 

3. Gorsuch and Sotomayor Criticize the Court for Not Hearing a 6th Amendment Right to Confrontation Issue

This November article, written by Julia Gorski, discusses a Supreme Court dissent criticizing the Court’s decision not to grant certiorari in a case regarding the right to confront one’s accusers.

2. Victim Impact Statements and the Case of Larry Nassar

This January article, written by Briannie Kraft, discusses the legality of victim impact statements at criminal sentencing hearings, using the case of former gymnastics doctor Larry Nassar as a prime and relevant example.

 

1. The Molineux Rule: How this Exception to the Rules of Evidence Could Impact the Harvey Weinstein Trial

Our most popular article of 2018 is this June article written by Sara Lupi, which discusses how a New York exception to the rules of evidence could be used in the sexual assault trial against disgraced former film producer Harvey Weinstein.

Could the Affordable Care Act Return to the Supreme Court for a Third Time?

Written by Alexandra Gladu DeSimone

 

Will it be, “Third time’s a charm,” or, “Three strikes, you’re out,” for the Affordable Care Act? The landmark health care overhaul became law in 2010, but it continues to draw substantial debate even eight years later. Challenges to the law have landed on the United States Supreme Court’s docket twice already, but a recent federal district court ruling in Texas could give rise to yet another petition for certiorari.

On December 14, 2018, Judge Reed C. O’Connor of the United States District Court for the Northern District of Texas declared the Affordable Care Act unconstitutional. The case, Texas v. United States, did not arise in a vacuum. Instead, the legal issue at the heart of the case has its roots in the previous Supreme Court decisions on the Affordable Care Act and Congress’s maneuvers since the law went into effect.

The Individual Mandate & Sebelius

The Affordable Care Act, also known as “Obamacare,” was President Barack Obama’s attempt to bring universal health care to the American people. The law sought to offer universal health care coverage by expanding Medicaid, creating coverage options for people with pre-existing conditions, and, most controversially, requiring all Americans to buy health insurance or pay a penalty fee. This final piece, known as the “Individual Mandate” has formed the basis for much of the debate and litigation around the law.

In 2012, the Supreme Court in National Federation of Independent Businesses v. Sebelius ruled the Individual Mandate constitutional under Congress’s tax power, grounded in Article I, Section 8 of the United States Constitution. Writing for the Court, Chief Justice John Roberts explained the tax power expansively. In his words, the power to tax granted by the U.S. Constitution “gives the Federal Government considerable influence even in areas where it cannot directly regulate.” The Court ultimately interpreted the penalty imposed on individuals who failed to purchase health insurance to be a tax, which brought the Affordable Care Act under the broad umbrella of Congress’s tax power. Although the Court’s decision in Sebelius upheld the Affordable Care Act, it did so only narrowly, with a 5-4 decision on the Individual Mandate issue. The Court upheld the law again in 2015 in the similar case of King v. Burwell.

A New Law & A New Case

Congress in 2017 passed the Tax Cuts and Jobs Act, which eliminated the penalty for failing to purchase health insurance. In this way, the 2017 law inevitably begged the question: If the tax disappears, can the Affordable Care Act still stand as a valid exercise of Congress’s tax power?

Texas v. United States asks that very question. In early 2018, twenty states, including Alabama, Georgia, North Dakota, and Texas, filed suit against the federal government to challenge the Affordable Care Act. Another sixteen states, including California, Delaware, North Carolina, and Virginia, plus the District of Columbia, intervened as defendants to oppose the suit. The states’ involvement is crucial. States carry out much of the Affordable Care Act’s policy through Medicaid administration and health care exchanges. What’s more, the federal government, under the Trump administration, has taken a much different stance on the Affordable Care Act than the previous administration, which defended the law in the 2012 case.

The plaintiffs have argued that the Affordable Care Act must fall for at least two reasons: First, the Individual Mandate, they say, cannot be a valid exercise of Congress’s tax power if it no longer imposes a tax. Second, the Affordable Care Act as a whole cannot stand without the Individual Mandate because the Individual Mandate represents an “essential” part of the law.

The defendants take different approaches that collectively attack both of the plaintiffs’ arguments. First, the federal government has argued that the Individual Mandate is unconstitutional without a tax component, but the other parts of the Affordable Care Act should stand. The states, on other hand, have argued that the Individual Mandate remains constitutional and, therefore, no part of the Affordable Care Act should fall.

Ultimately, Judge O’Connor agreed with the plaintiffs. His opinion calls the state-defendants’ argument “logically inconsistent” because the Individual Mandate is essentially toothless without the non-coverage tax. Judge O’Connor ruled that the Individual Mandate was no longer constitutional under Congress’s tax power because Congress no longer imposed a tax. Furthermore, Judge O’Connor found that Congress likely would not have passed the Affordable Care Act without the Individual Mandate, making the provision essential to the statute as a whole. Thus, if the Individual Mandate is unconstitutional, then the entire law is void.

Looking Ahead

The defendants have already promised to appeal Judge O’Connor’s decision to the United States Court of Appeals for the Fifth Circuit. Given the change in circumstances since the Sebelius and King decisions, it seems likely that the Supreme Court will eventually consider a petition for certiorari in Texas v. United States. The narrow decision rendered in Sebelius signals that some Justices who voted to uphold the law in 2012 may see things differently in the light of new circumstances.

In the meantime, the case represents a deep divide, not only at the federal level, but also between the states. Some 36 states, plus the District of Columbia have officially taken a stand as parties on either side of the litigation. Their participation serves as a reminder that whatever decision becomes final will drastically affect the way that states administer health care issues and the way that the American people seek coverage.


Sources

Julie Rovner, Texas Judge Rules Affordable Care Act Unconstitutional, But Supporters Vow To Appeal, NPR (Dec. 14, 2018).

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012).

Nicholas Gerbis, The History of the Affordable Care Act, How Stuff Works.

Tex. v. United States, 2018 U.S. Dist. LEXIS 211547 (N.D. Tex. 2018).

Photo courtesy of Huffington Post.

Ninth Circuit Rejects Nationwide Block of Trump Administration’s ACA Birth Control Rules

written by carly rolph

 

A decision by the United States Court of Appeals for the Ninth Circuit has narrowed a lower court’s nationwide ban on Trump administration rules exempting employers with moral or religious objections from providing birth control coverage otherwise required by the Affordable Care Act. In a 2-1 decision, the Court held that the district court had abused its discretion when it issued a nationwide preliminary injunction blocking the rules, and that the injunction should have been limited to the five states that brought the legal challenge.

Background

The Affordable Care Act (“ACA”), passed under the Obama Administration, requires that plans in the health insurance marketplace cover contraceptive methods and counseling for all women, as prescribed by a health care provider. The ACA further mandates that these plans cover contraceptive services without charging a co-payment.

In October 2017, the Department of Health and Human Services (“HHS”) issued rules that vastly expanded the range of companies that could opt out of the ACA contraceptive mandate. These rules would allow some employers to deny insurance coverage of birth control because of their religious or moral beliefs.

In December 2017, California, Delaware, Maryland, New York and Virginia filed a lawsuit alleging that the new rules were illegally passed by federal agencies without giving notice or seeking public comment. The states contended that the Trump administration had made the change in policy a nationwide issue by failing to comply with the Administrative Procedure Act.

The Decision

In a 2-1 decision on December 13, 2018, the Ninth Circuit held that the district court had abused its discretion when it issued a nationwide preliminary injunction blocking the rules, and that the injunction should have been limited to the five states that brought the legal challenge. The majority found that the nationwide injunction was too broad, and that an injunction applying to just California, Delaware, Maryland, New York and Virginia, the states that brought the legal challenge, would have given them total relief.

The majority found that the record did not show what the economic impact would be on the rest of the nation. “District judges must require a showing of nationwide impact or sufficient similarity to the plaintiff states to foreclose litigation in other districts, from Alaska to Puerto Rico to Maine to Guam,” United States Circuit Judge J. Clifford Wallace wrote in the majority opinion.

However, the court did find that the district court correctly concluded that the five states were likely to suffer irreparable harm, and that the lower court did not abuse its discretion in finding that the balance of equities and the public interest leaning in favor of granting the injunction. The majority found that the record was well-developed on how the rules would harm the five states.

In addition, the court said the district court had properly found that California, Delaware, Maryland, New York and Virginia were likely to prevail on their allegations that the United States Departments of Treasury, Labor and HHS wrongly proposed the two interim final rules in October 2017 without a notice and comment period.

The majority did not find the agencies’ arguments in favor of foregoing the comment period convincing. The agencies asserted that bypassing the notice sand comment period was justified by the need to lessen legal and regulatory uncertainty on the issue, stop the Federal Religious Freedom Restoration Act violations, and reduce health care costs. The vourt classified the agencies’ arguments as “general [p]olicy justifications,” finding they weren’t enough to demonstrate good cause for forgoing the comment period. The majority also found that the agencies’ contentions that certain provisions in the ACA allowed them to bypass the comment period for the rules was also likely to fail.

Looking Forward

While the Ninth Circuit’s decision would allow enforcement of the new rules in many states, a preliminary injunction in a separate case in Pennsylvania remains in effect, so the rules are still blocked nationwide.

In addition, the Trump Administration recently issued a new set of rules similar to the 2017 rules, allowing for some companies to opt out of contraceptive e coverage on nonreligious “moral convictions.” These rules will take effect January 14, 2019, superseding the 2017 rules and leaving the injunctions in California and Pennsylvania moot.


Sources

Birth Control Benefits, HealthCare.gov,  (last visited Dec. 16, 2018).

https://www.washingtonpost.com/religion/2018/12/14/court-partially-blocks-trump-administration-rules-allowing-some-employers-deny-birth-control-coverage/?utm_term=.231b2608c425

Cara Bayles, Nationwide Ban OK For Trump Birth Control Rules, States Say, LAW 360 (Aug. 17, 2018).

Danielle Nichole Smith, 9th Circ. Pares Nationwide Block of ACA Birth Control Rules, LAW 360 (Dec. 14, 2018).

Samantha Schmidt, Court partially blocks Trump administration rules allowing some employers to deny birth control coverage, THE WASHINGTON POST (Dec. 13, 2018).