Pennsylvania v. Trump

In a 7-2 decision in Little Sisters of the Poor v. Pennsylvania the Supreme Court held that religious employers and employers with moral objections may be exempted from the Affordable Care Act’s (ACA) contraceptive mandate.

The State and Local Legal Center (SLLC) filed an amicus brief in this case defending the lower court’s issuance of a nationwide injunction—which benefits nonparties. Because the Court upheld the regulations (meaning the lower court shouldn’t have issued any injunction in this case), the Court had no reason to discuss the merits of nationwide injunctions. Nevertheless, Justice Ginsburg’s dissenting opinion contains a footnote stating that “the District Court did not abuse its discretion in issuing a nationwide injunction.”

Understanding the other legal issues in this case requires some background.

Regulations long exempted churches from the contraceptive mandate. Regulations also allowed religious non-profits to participate in a “self-certification accommodation” process where employees could still receive contraceptive coverage from their health plan. In Zubik v. Burwell (2016), the Little Sisters, Catholic women who operate homes for the elderly poor, objected to the accommodation process. The Supreme Court didn’t decide that case because it appeared the parties reached a compromise. In Burwell v. Hobby Lobby (2014), the Court held that the contraceptive mandate violated a privately held company’s rights under the Religious Freedom Restoration Act.

In 2017 a number of federal agencies issued regulations exempting all objecting religious employers (not just churches) and morally objecting non-profits and private for-profits from the contraceptive mandate.


Pennsylvania and New Jersey sued arguing that these exemptions are “substantively and procedurally” invalid. The Supreme Court disagreed in an opinion written by Justice Thomas.

The ACA states that health insurance plans must provide “additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by Health Resources and Services Administration [HRSA].”

The states argued that this language allows the HRSA to only list the preventive care and screenings that health plans must provide and “not to exempt entities from covering those identified services.”


According to the majority, “that asserted limitation is found nowhere in the statute.” “HRSA has virtually unbridled discretion to decide what counts as preventive care and screenings. But the same capacious grant of authority that empowers HRSA to make these determinations leaves its discretion equally unchecked in other areas, including the ability to identify and create exemptions from its own Guidelines.”


The states raised two objections to how the final rules in this case were developed. The Administrative Procedures Act (APA) requires agencies to publish a notice of proposed rulemaking in the Federal Register before promulgating a rule that has legal force.

The states argued the federal government violated the APA in this case because before issuing final rules it issued “Interim Final Rules with Request for Comments,” instead of a “General Notice of Proposed Rulemaking.”


The Court disagreed concluding that the interim final rule contained the elements required in a notice of proposed rulemaking (“reference to the legal authority under which the rule is proposed” and “either the terms or substance of the proposed rule or a description of the subjects and issues involved”).


The Court also declined the states’ request to consider whether the federal agencies acted with an “open mind” because they “made only minor alterations to the [interim final rules], leaving their substance unchanged.” The Court noted the agencies followed APA requirements related to providing notice and receiving comments.


Justice Ginsburg’s dissent, joined by Justice Sotomayor, points out that “as the Government estimates, between 70,500 and 126,400 women would immediately lose access to no-cost contraceptive services” as a result of the regulations.

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.

Barr v. American Association of Political Consultants

In Barr v. American Association of Political Consultants the Supreme Court held 6-3 that the Telephone Consumer Protection Act’s (TCPA) debt-collection exception was content-based, failed strict scrutiny, and therefore violated the First Amendment.

The State and Local Legal Center filed an amicus brief in this case asking the Court to narrow its opinion in Reed v. Town of Gilbert (2015), holding that strict (usually fatal)-scrutiny applies to content-based restrictions on speech. Four Justices wouldn’t have applied strict scrutiny to the debt-collection exception.


The TCPA, adopted in 1991, prohibits robocalls to cell phones and home phones. A 2015 amendment allows robocalls made to collect debts owed to or guaranteed by the federal government. The American Association of Political Consultants (AAPC) wants to make political robocalls but can’t because they “are not in the business of collecting government debt.”

The Supreme Court, in a plurality opinion written by Justice Kavanaugh, held that the government-debt collection exception is a content-based restriction on speech. According to Justice Kavanaugh, under the TCPA, the legality of a robocall turns on whether it is “made solely to collect a debt owed to or guaranteed by the United States.” A robocall that says, “Please pay your government debt” is legal. A robocall that says, “Please donate to our political campaign” is illegal. “That is about as content-based as it gets. Because the law favors speech made for collecting government debt over political and other speech, the law is a content-based restriction on speech.”

Chief Justice Roberts, and Justices Thomas, Alito, and Gorsuch agreed with Justice Kavanaugh that strict scrutiny should apply in this case. The federal government conceded that the government-debt exception fails strict scrutiny. Justice Sotomayor would have applied intermediate scrutiny which she concluded the exception failed.   

Justice Breyer, joined by Justices Ginsburg and Kagan, would not have applied strict scrutiny in this case, as the SLLC asked in its amicus brief. According to Justice Breyer: “[t]o reflexively treat all content-based distinctions as subject to strict scrutiny regardless of context or practical effect is to engage in an analysis untethered from the First Amendment’s objectives.” “The idea that broad language in any one case (even Reed) has categorically determined how content discrimination should be applied in every single context is both wrong and reflects an oversimplification and over-reading of our precedent.” Justice Breyer opined that the “government-debt exception should survive intermediate First Amendment scrutiny.”


Interestingly, seven Justices voted to sever the government-debt exception from the TCPA, allowing the law to remain in effect without the exception. The practical effect of this decision is that AAPC “still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech.” Justice Kavanaugh, writing in favor of severability, noted that since 1934 the Communications Act, which the TPCA amended, contains a severability clause.

Justices Gorsuch and Thomas dissented from the Court’s holding that severability was the appropriate remedy in this case. Noting that the AAPC didn’t challenge the debt-collection exception, the dissenters would have held that the AAPC was entitled to an injunction preventing the robocall ban from being enforced against them because the ban “unconstitutionally infringes on their speech.”

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.

Lomax v. Ortiz-Marquez

The Supreme Court ruled unanimously in Lomax v. Ortiz that a dismissal without prejudice for failure to state a claim counts as a strike under the Prison Litigation Reform Act (PLRA). The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing for this result.

The PLRA contains a three-strikes rule disallowing an inmate who can’t pay filing fees upfront from filing a fourth lawsuit when he or she has filed three previous lawsuits which were dismissed on the grounds that they were “frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted.”


Arthur Lomax’s current lawsuit challenges his expulsion from a prison sex-offender treatment program. He previously brought three unsuccessful lawsuits against corrections officers, prosecutors, and judges. Lomax claims that two of those dismissals shouldn’t be counted as strikes as they were without prejudice, meaning he could file a later suit on the same claim.

Justice Kagan, writing for the Court, disagreed with Lomax stating this case “begins, and pretty much ends, with the text” of the statute; the broad language of the statute covers all dismissals. “To reach the opposite result—counting prejudicial orders alone as strikes—we would have to read the simple word ‘dismissed’ in [the PLRA] as ‘dismissed with prejudice.’”

Justice Kagan also noted that the PLRA uses the dismissal for failure to state a claim language in three other provisions. Everyone agrees that under those provisions courts could dismiss suits without prejudice. “So reading the PLRA’s three-strikes rule to apply only to dismissals with prejudice would introduce inconsistencies into the statute. The identical phrase would then bear different meanings in provisions almost next-door to each other.”  

Most prisoners reside in either state prisons or local jails; state and local governments pay the costs of defending meritless prisoner cases. The SLLC amicus brief argued that a dismissal without prejudice should count as a strike because the goal of the PLRA is “fewer and better prisoner suits,” and it has largely accomplished this goal.

While Lomax argued dismissals without prejudice aren’t similar to dismissals of frivolous and malicious lawsuits, which also count as strikes, the Court noted that the purpose of the PLRA was to “cabin not only abusive but also simply meritless prisoner suits.”

Justice Thomas joined all of the opinion except a footnote stating that no strike accrues when a court allows an inmate to amend his or her complaint.  

Misha Tseytlin, Sean T.H. Dutton, Elizabeth Holt Andrews, Hillary A. Lehmann, Katharine Lane Malone, Michael K. Cassata, and George Laiolo of Troutman Sanders wrote the SLLC amicus brief in this case which the following organizations joined:  Council of State Governments, National Association of Counties, National League of Cities, US Conference of Mayors, International City/County Management Association, International Municipal Lawyers Association, Government Finance Officers Association, and National Sheriffs Association.  

County of Maui, Hawaii v. Hawaii Wildlife Fund

In County of Maui, Hawaii v. Hawaii Wildlife Fund the Supreme Court held 6-3 that when there is a “functional equivalent of a direct discharge” from a point source to navigable waters an appropriate permit is required under the Clean Water Act.

The Clean Water Act forbids the “addition” of any pollutant “from a point source” to “navigable waters” without a National Pollutant Discharge Elimination System (NPDES) permit. In this case the County of Maui wastewater reclamation facility pumps treated wastewater (pollutants) from wells (point sources) which travels through groundwater to the ocean (a navigable water). Hawaii Wildlife Fund claimed Maui should have obtained an NPDES permit.

Maui argued that an NPDES permit is only required when a point source or series of point sources is “the means of delivering pollutants to navigable waters.” In this case groundwater lies “between the point source [the wells] and the navigable water [the ocean].” The State and Local Legal Center (SLLC) filed an amicus brief supporting Maui’s position.

Hawaii Wildlife Fund agreed with the Ninth Circuit “that the permitting requirement applies so long as the pollutant is ‘fairly traceable’ to a point source even if it traveled long and far (through groundwater) before it reached navigable waters.”

The Supreme Court, in an opinion written by Justice Breyer, rejected both positions holding instead that a permit is required when there is a functional equivalent of a direct discharge. The Court concluded that the question in this case came down to the definition of “from” in the phrase “from a point source.”


The Ninth Circuit’s interpretation of “from” was too broad, the Court opined, because it would lead to “surprising, even bizarre, circumstances, such as for pollutants carried to navigable waters on a bird’s feathers.” The Court also expressed “doubt that Congress intended to give EPA the authority to apply the word ‘from’ in a way that could interfere as seriously with States’ traditional regulatory authority—authority the Act preserves and promotes—as the Ninth Circuit’s ‘fairly traceable’ test would.”


The Court likewise rejected as too narrow Maui’s argument that if a pollutant travels from a point source through groundwater before reaching navigable water no NPDES permit is required. Justice Breyer offered an example of a point source pipe that spews pollution directly into coastal waters. He asked, under Maui’s interpretation, “why could not the pipe’s owner, seeking to avoid the permit requirement, simply move the pipe back, perhaps only a few yards, so that the pollution must travel through at least some groundwater before reaching the sea?”


According to the Court, the functional equivalent of a direct discharge test “best captures, in broad terms, those circumstances in which Congress intended to require a federal permit.”


The Court offered seven examples of factors courts could consider to determine if the functional equivalent of a direct discharge has in fact occurred including: “(1) transit time, (2) distance traveled, (3) the nature of the material through which the pollutant travels, (4) the extent to which the pollutant is diluted or chemically changed as it travels, (5) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, (6) the manner by or area in which the pollutant enters the navigable waters, (7) the degree to which the pollution (at that point) has maintained its specific identity.” According to the Court, generally time and distance will be the most important factors.


The Supreme Court sent this case back to the lower court to apply its newly articulated test.

J.G. Andre Monette, Shawn Hagerty, and Rebecca Andrews of Best Best & Krieger, wrote the SLLC amicus brief which the following national organizations joined:  National Conference of State Legislatures, National Association of Counties, National League of Cities, International City/County Management Association, and the International Municipal Lawyers Association.

New York State Rifle & Pistol Association v. New York City

In a two-page per curiam (unauthored) opinion in New York State Rifle & Pistol Association v. City of New York, the Supreme Court held that a challenge to New York City’s rule disallowing residents to transport firearms to a second home or shooting range outside of the city is moot. The State and Local Legal Center (SLLC) filed an amicus brief arguing the rule was constitutional.

The Supreme Court concluded the case was moot because after the Court agreed to hear it “the State of New York amended its firearm licensing statute, and the City amended the rule so that [residents] may now transport firearms to a second home or shooting range outside of the city, which is the precise relief . . . requested.”

The opinion pointed to two unanswered questions in this case which the lower courts have to resolve.

First, New York State Rifle & Pistol Association argues the “new rule may still infringe their rights” by preventing stops for coffee, gas, food, etc. on the way to second homes or shooting ranges outside of the city. The City claims such “routine stops are entirely permissible under the new rule.” The Supreme Court didn’t resolve the issue quoting precedent which explains “where the mootness is attributable to a change in the legal framework governing the case, and where the plaintiff may have some residual claim under the new framework that was understandably not asserted previously, our practice is to vacate the judgment and remand for further proceedings in which the parties may, if necessary, amend their pleadings or develop the record more fully.”

Second, New York State Rifle & Pistol Association asked for damages with respect to the old rule for the first time “well into the litigation in this Court.” On remand the lower court may decide whether the Association is still able to add a damages claim.

Justice Alito wrote a lengthy dissent which Justice Gorsuch joined in full and Justice Thomas joined in part. Justice Alito conceded that the New York State Rifle & Pistol Association got most of what it wanted when the law changed, but stated that is not the test for mootness. According to the dissent case “becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” The dissent also concluded the it wasn’t a “close question” that New York City’s rule violated the Second Amendment.

Justice Kavanaugh wrote a concurring opinion agreeing that the case was moot and additional claims should be decided by the lower courts. He also agreed with the dissent that some lower court cases upholding gun regulations may have not have been decided correctly.

The SLLC amicus brief argued New York City’s former rule is constitutional because it only imposes a modest burden on those who wish to “bear” arms in public places. It also agreed new complaints with the revised rule should be heard by the lower courts instead of the Supreme Court.

Lawrence Rosenthal, Chapman University, Fowler School of Law wrote the SLLC amicus brief which the following organizations joined:  National League of Cities, U.S. Conference of Mayors, and the International Municipal Lawyers Association.

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