Pennsylvania v. Trump

Whether lower courts may issue nationwide injunctions is one of a number of legal issues the Supreme Court will decide in Trump v. Pennsylvania and Little Sister of the Poor Saints Peter and Paul Home v. Pennsylvania.

Nationwide injunctions are controversial because they benefit non-parties. For example, while only Pennsylvania and New Jersey sued, the nationwide injunction issued in this case prevented the federal government from applying the rules at issue anywhere in the United States.

The SLLC amicus brief argues in favor of nationwide injunctions.

The most prominent legal issue in this case is whether the Trump administration has the statutory authority to expand the Affordable Care Act (ACA) contraceptive mandate’s conscience exemption.

A 2013 final rule exempted churches and similar entities from the ACA’s so-called contraceptive mandate. The rule included an accommodations process which allowed women covered by exempted plans to still receive covered contraception.

In 2017 a number of federal agencies, in response to an executive order from President Trump, issued, without notice and a public comment period, two interim final rules that “expanded the existing exemption and Accommodation framework, made the Accommodation process voluntary, and offered similar protections to organizations with moral objections to contraceptives.”

Pennsylvania and New Jersey sued the agencies noting that thousands of women would be without birth-control coverage due to these rules and may turn to state-funded programs to receive contraception.

The Trump administration lost on all the issues litigated in this case in the Third Circuit.


Most relevant to the SLLC amicus brief, the third Circuit agreed with the district court’s decision to issue a nationwide injunction. The Third Circuit opined, “[m]any individuals work in a state that is different from the one in which they reside. An injunction geographically limited to the States alone will not protect them from financial harm, as some share of their residents who work out-of-state will lose contraceptive coverage originally provided through employers in non-enjoined states who will exempt themselves.”


The SLLC amicus brief notes that injunctions routinely benefit non-parties. For example, an injunction requiring a government to take down an unconstitutional religious display would benefit everyone who might see the display not just the party who brought the lawsuit. The brief also points out that every court of appeals to consider the question has approved the use of nationwide injunctions. Finally, the brief argues that nationwide injunctions are particularly important to small local governments who lack the resources to sue the federal government and have to “rely on one of the big cities to get the injunction that forces the federal government to stop.”


Lisa Soronen, SLLC, wrote the SLLC amicus brief which the following organizations joined:  National League of Cities, US Conference of Mayors, International City/County Management Association, and International Municipal Lawyers Association.

Torres v. Madrid

Excessive force is a violation of the Fourth Amendment’s prohibition against “unreasonable searches and seizures.” In Torres v. Madrid the State and Local Legal Center (SLLC) filed a Supreme Court amicus brief arguing that a Fourth Amendment “seizure” has not occurred when police unsuccessfully attempt to restrain someone using physical force.

In this case police officers approached Roxanne Torres thinking she may be the person they intended to arrest. At the time Torres was “tripping” from using meth for several days. She got inside a car and started the engine. One of the officers repeatedly asked her to show her hands but could not see her clearly because the car had tinted windows.

When Torres “heard the flicker of the car door” handle she started to drive thinking she was being carjacked. Torres drove at one of the officers who fired at Torres through the wind shield. The other officer shot at Torres as well to avoid being crushed between two cars and to stop Torres from driving toward the other officer.


Torres was shot twice. After she hit another car, she got out of her car and laid on the ground attempting to “surrender” to the “carjackers.” She asked a bystander to call the police but left the scene because she had an outstanding warrant. She then stole a car, drove 75 miles, and checked into a hospital using an alias.


Torres claims the police officers used excessive force against her in violation of the Fourth Amendment. The Tenth Circuit disagreed noting police officers didn’t attain physical control over Torres after they shot her. The federal circuit courts of appeals are split regarding whether an attempt to detain a suspect by physical force must be successful for a “seizure” to occur.

Among other arguments Torres claims that at common law, “mere touch with the intent to restrain effected an arrest,” and therefore a seizure. The SLLC amicus brief disagrees arguing: “[f]rom the Founding to today, ‘seizure’ has meant to ‘take possession’—thus encompassing an element of physical control.”


The SLLC amicus brief also provides practical reasons for rejecting Torres’s argument. “Fleeing suspects place officers and the public at risk, and [Torres’s] proposed definition would increase incentives to flee. In response, officers may be chilled from using the force necessary to bring suspects under physical control for fear of facing unwarranted excessive-force claims. And permitting individuals who flee to bring a Fourth Amendment claim would not deter unlawful police conduct, given that officers will not know in advance whether suspects will resist and evade capture.”

Elizabeth B. Prelogar, Allegra Flamm, Barrett J. Anderson, and Jeanne Detch, of Cooley, wrote the SLLC amicus brief, which the following organizations joined:  National Association of Counties, National League of Cities, US Conference of Mayors, International City/County Management Association, International Municipal Lawyers Association, and National Sheriffs Association. 

Barr v. American Association of Political Consultants

In Barr v. American Association of Political Consultants the State and Local Legal Center (SLLC) has filed an amicus brief asking the Supreme Court to narrow its opinion in Reed v. Town of Gilbert (2015).


In Reed the Supreme Court held that strict (usually fatal)-scrutiny applies to content-based restrictions on speech. The Court defined content-based broadly not just to include “obvious” restrictions defining regulated speech by “particular subject matter,” but other “more subtle” restrictions defining regulated speech by its “function or purpose.”


The SLLC amicus brief asks the Court to “cabin Reed by recognizing that purpose or function discrimination is not always content discrimination,” meaning intermediate scrutiny would apply.


The Telephone Consumer Protection Act (TCPA) prohibits automatic dialing or prerecorded calls to cell phones with three exceptions—emergencies, consent, and debt collection owed to or guaranteed by the United States.


The American Association of Political Consultants claims the third exception violates the First Amendment.

Applying Reed the Fourth Circuit concluded that this exception is content-based because “automated calls made to cell phones that deal with other subjects — such as efforts to collect a debt neither owed to nor guaranteed by the United States — do not qualify for the debt-collection exemption and are prohibited by the automated call ban.”


The SLLC amicus brief argues that the Supreme Court should narrow Reed because it is difficult for state and local government officials to draft content-neutral requirements in common settings. For example, Reed involved a sign code; most sign codes define the word sign. The brief explains how “a meaningful definition of ‘sign’ enables a sign code to avoid unintentionally regulating T-shirts or architecturally designed buildings. But it is impossible to achieve those goals without, in some way, differentiating based on function or purpose.”


Beyond sign codes, the brief provides other examples of how lower courts have “misused” Reed and taken it in “surprising directions.” For example, quoting Reed, a federal district court prevented a city from rejecting a ballot initiative to decriminalize marijuana possession. Likewise, quoting Reed four times, another court stuck down a state’s ballot selfie law, which prohibits the taking “a digital image or photograph of the voter’s ballot while the voter is in a polling place.”


John M. Baker and Katherine M. Swenson of Greene Espel wrote the SLLC amicus brief which the following organizations joined:  National Association of Counties, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, and the International Municipal Lawyers Association.

City of Chicago v. Fulton

The State and Local Legal Center (SLLC) amicus brief in City of Chicago, Illinois v. Fulton argues that the Supreme Court should rule that a local government need not immediately return a vehicle impounded because of code violations upon a debtor filing for bankruptcy.

The City of Chicago impounds vehicles where debtors have three or more unpaid fines. Robbin Fulton’s vehicle was impounded for this reason. She filed for bankruptcy and asked the City to turn over her vehicle; it refused.


Fulton claims the Bankruptcy Code’s “automatic stay” provision requires the City to immediately return her vehicles even though she didn’t pay her outstanding tickets. The Seventh Circuit agreed.


The “automatic stay” provision of the Bankruptcy Code provides that a bankruptcy petition “operates as a stay, applicable to all entities, of … any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate.”  


In a previous case decided in 2009, Thompson v. General Motors Acceptance Corp., the Seventh Circuit concluded that “exercise control” includes holding onto an asset and that “exercise control” isn’t limited to “selling or otherwise destroying the asset.” So, the court reasoned in this case, the City of Chicago “exercised control” over Fulton’s car in violation of the automatic stay by not returning it after she filed the bankruptcy petition.

The SLLC amicus brief argues that the Supreme Court should overturn the Seventh Circuit’s immediate-release rule and require a bankruptcy petitioner to file an adversary proceeding to obtain the release of a vehicle.


According to the brief, “[t]his rule protects the efficacy of traffic and parking regulations, as well as avoiding perverse incentives for owners of impounded vehicles to file bankruptcy petitions.”


The SLLC brief also points out that “construing the automatic stay as requiring the immediate release of assets would undermine the government’s ability to enforce tax, licensing, and regulatory laws.”


Scott Burnett Smith, Alexandra E. Dugan, and Stephen C. Parsley Bradley of Arant Boult Cummings LLP wrote the SLLC amicus brief which the following organizations joined:  National Association of Counties, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, International Municipal Lawyers Association, and Government Finance Officers Association.


Carney v. Adams

Delaware’s Constitution requires that three state courts be balanced between the two major political parties. The main question before the Supreme Court in Carney v. Adams is whether this scheme violates the First Amendment. In an amicus brief the State and Local Legal Center (SLLC) argues it does not.


Per Delaware’s Constitution no more than half of the members of the Delaware Supreme Court, Superior Court, or Chancery Court may be of the same major political party.

Delaware attorney James Adams wants to be a judge in Delaware but he is an Independent. Adams claims that the First Amendment prohibits the governor from making judicial appointments based on political party.


In the three previous “patronage” cases the Supreme Court has explained “the limits on a government employer’s ability to consider a job candidate’s political allegiance.” Based on those cases the Third Circuit focused on whether judges are policymakers as First Amendment protections do not apply to them.   

The Third Circuit concluded judges aren’t policymakers. According to the lower court the “purpose of the policymaking exception is to ensure that elected officials may put in place loyal employees who will not undercut or obstruct the new administration.”

The Third Circuit reasoned “[j]udges simply do not fit this description. The American Bar Association’s Model Code of Judicial Conduct instructs judges to promote ‘independence’ and ‘impartiality,’ not loyalty.” “The Delaware Supreme Court has stated that Delaware judges ‘must take the law as they find it, and their personal predilections as to what the law should be have no place in efforts to override properly stated legislative will.’ Independence, not political allegiance, is required of Delaware judges.”


The SLLC amicus brief argues that state and local governments should be able to “insulate certain decision-making bodies from the rough-and-tumble of partisan politics.” The brief argues that the patronage cases don’t apply to this case because “the person making a hiring decision—here, the Governor—has no say in whether to take partisan affiliation into account; patronage plays no part in this picture. Instead, the relevance of partisan affiliation is baked into the structure of government ahead of time, when no one can predict who will be making a given appointment at a given point in the future.”


The brief next argues if the Court applies the policymaking exception in this case it should construe it more broadly than the Third Circuit.


Finally, the brief points out that “[h]undreds of state and local governments have made a thoughtful choice to use bipartisan decision-making processes, based on their conclusion that these processes will produce the best outcomes for their communities.  They have reached this conclusion in myriad settings: from judicial selection, to elections administration, to ethics enforcement, and more.  A test which deems these reasonable choices per se unconstitutional would upend state and local governments and would defy common sense.


Kirti Datla and Kristina Alekseyeva, Hogan Lovells, wrote the SLLC amicus brief in this case which the following organizations joined:  National Conference of State Legislatures, National Association of Counties, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, and International Municipal Lawyers Association.

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