Supreme‌ ‌Court‌ ‌Set‌ ‌to‌ ‌Tackle‌ ‌DACA,‌ ‌LGBT‌ ‌Discrimination,‌ ‌Among‌ ‌Other‌ ‌Issues‌ ‌This‌ Term‌

WASHINGTON – Every year, as reliably as the start of Major League Baseball’s playoffs, and the arrival of multi-colored fall foliage, the U.S. Supreme Court returns in October to tackle 70 to 80 of the nation’s toughest legal questions.

This year’s term begins Monday, Oct. 7, and will extend into late June, encompassing the presidential primaries and ending just before the Republicans and Democrats host their presidential nominating conventions.

As always, one can expect the Justices’ statements from the bench during hearings, the court’s rulings, and the makeup of the majorities in those rulings, to invite intense scrutiny.

Among the high-profile issues they’ll tackle early in the term are the fate of the Deferred Action for Childhood Arrivals (DACA) program and whether Title VII employment discrimination protections extend to members of the LGBT community.

To get a deeper sense of the issues these and other cases on the court’s docket raise, The Well News recently attended a preview of the high court’s 2019-2020 term hosted by the American Constitution Society at the National Press Club.

The host for the event was Kimberly Atkins, the Washington-based, senior correspondent for WBUR-FM, Boston’s NPR news station.

The panelists were law professor Katie Eyer of Rutgers Law School and one of the nation’s leading experts on LGBT employment rights; Shoba Wadhia,  Samuel Weiss Faculty Scholar and law professor at Penn State Law School; and three former Solicitors General: Paul Clement, now a partner at Kirkland & Ellis LLP; Don Verrilli, now a partner at Munger, Tolles & Olson LLP; and Walter Dellinger, a partner at O’Melveny.

AFFORDABLE CARE ACT

The Justices will decide whether Congress needs to cough up $12 billion promised to insurers before the Affordable Care Act was signed by President Barack Obama in March 2010.

“Everything about the Affordable Care Act was outsized and big,” said Paul Clement, providing the context for the three lawsuits the justices have consolidated for oral argument.

The cases are Maine Community Health Options v. United States; Moda Health Plan v. United States; and Land of Lincoln Mutual Health v. United States.

“It was a big piece of legislation. It had huge consequences for the healthcare industry,” he said.

To encourage insurers to provide coverage to people with pre-existing conditions, a provision was included in the ACA that said if insurers lost money on these policies, the federal government would reimburse them for some of the loss.

A parallel provision said that if an insurance company priced their policies too high and made more money than expected, they would return some money to the federal government.

“It was a way of cushioning the risk,” Clement said of the provisions.

However, by the time losses were realized and the reimbursements came due, Congress had changed hands, and the new Republican majority restricted the funds available to the Department of Health and Human Services to pay the insurers. The insurers promptly sued.

Don Verrilli, another of the former solicitors general on the panel, said the cases are interesting because they deal with the issue of how promises made by one Congress are handled by another.

“Anytime a big law like this gets enacted, you learn things as you start implementing it,” Verrilli said. “You start to say, ‘We need to tinker with this.’ “We need to fix that.’ But once you had a change in the party in control of the House, that just wasn’t going to happen … and a whole host of issues ended up in court.”

“There are some questions of law that you’d think would be settled 225 years into our constitutional experiment,” Clement said. “You’d think we’d already know the answer to what happens when Congress says,’Yes, we’ll make some payments, but they’re not due for five years.’ And then Congress, five years later, says, “Well, that’s interesting, but we’re not going to appropriate the funds’. You just think there was a crystal clear answer to that question that was provided … in something Andrew Jackson did or something. Instead, it remains a debatable question.”

DEFERRED ACTION FOR CHILDHOOD ARRIVALS

Deferred Action for Childhood Arrivals, or DACA, is the 2012, Obama-era policy that protected hundreds of thousands of people from deportation who were illegally brought into the United States as children and met certain other requirements.

Roughly 700,000 people, known as Dreamers, ultimately qualified for protection under the program.

But then, in September 2017, President Donald Trump abruptly terminated the program.

In November, the Supreme Court will hear oral arguments on three consolidated cases: Regents of the University of California v. Department of Homeland Security; Batalla Vidal v. Nielsen; and NAACP v. Trump.

Shoba Wadhia, who will be among the immigration law scholars filing an amicus brief in the court ahead of the hearing, said all three cases argue that Trump’s ending DACA was a violation of administrative law.

Wadhia argued the legal foundation for “deferred action,” something she also referred to as “prosecutorial discretion” is crystal clear when it comes to immigration law. At the same time, she appeared genuinely insulted by how the decision to end DACA was announced.

“It was done through a press release, and in it, former Attorney General Jeff Sessions called DACA recipients ‘illegal aliens,'” she said. “And he went on to call the Obama-era policy an ‘unconstitutional exercise of authority by the executive branch.'”

Despite her strong belief that DACA is firmly grounded in law, Wadhia said its fate before the Supreme Court is uncertain, and may hinge on whether the court believes the case is reviewable at all.

If the Justices determine the parties have standing, the government is expected to offer three arguments for doing away with the program.

The first is that the outcome of separate litigation over the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) provides a basis for finding DACA unlawful.

DAPA was planned policy to grant deferred action status to certain illegal immigrants who have lived in the United States since 2010 and have children who are either American citizens or lawful permanent residents. Several states sued to block it, and after the Supreme Court deadlocked on whether an injunction in the case should be lifted, President Trump ordered the program ended.

Wadhia quoted acting Solicitor General Walter Dellinger, who happened to be sitting to her right, who argued the DAPA case and later said of the court’s one-sentence order, “seldom have so many hopes been crushed by so few words.”

The Trump administration is also expected to argue that DACA creates an incentive for non-citizens to migrate to the United States southern border, and that the Department of Homeland Security was correct in concluding the program was illegal.

Wadhia says all three arguments are deeply flawed.

“I represent these clients, people arriving at the southern border are doing so in large part because of their dangerous conditions back home. They’re not here because they heard of DACA.

“Finally, I believe the government provides a flawed analysis for why DACA is unlawful. Regardless of how the Supreme Court rules in this case, as a matter of law, the choice by the Trump administration to end DACA represents an extraordinary use of discretion,” she said.

That prompted a comment from Dellinger.

“There are different ways of losing the case and they have different consequences,” he said. “The court could hold that it was within President Obama’s authority to create DACA, and that President Trump was similarly within his statutory authority to reverse it.

“A ruling like that would leave the way free for a future president to return to the position taken by President Obama,” he said.

“The other way to lose the case, and potentially far more damaging to DACA supporters, would be for the court to say Trump was right to rescind the Obama-era order,” Dellinger said.

“That would mean that no future president, without additional legislation and a granting of additional statutory authority, could return to that,” he said. “Now it may well be that both the court and the administration are reluctant to go that far because what you’re ultimately talking about is placing constraints on a future president.”

TITLE VII AND SEXUAL ORIENTATION

The court is wasting no time in getting to three cases dealing with the question of whether Title VII of the Civil Rights Act of 1963 protects employees from discrimination based on their sexual orientation or trans status.  It has scheduled oral arguments on the cases next Tuesday.

In Altitude Express v. Zarda, the Court will review a holding by the en banc Second Circuit that Title VII prohibits discrimination based on an employee’s sexual orientation. After Daniel Zarda sued his former employers, a New York skydiving company, for firing him due to his being gay, the Second Circuit held that Title VII, which prohibits discrimination “because of sex” applied, and that Zarda therefore had properly alleged a valid cause of action.

In the second of the consolidated cases, Bostock v. Clayton County, Georgia, the court will consider the same question, after the Eleventh Circuit decided Title VII protections did not extend to Gerald Bostock, a child welfare services coordinator who argued he was fired from his county job when it was discovered he is gay.

The third case accepted for review raises the question whether Title VII prohibits discrimination based on gender identity or trans status. In R.G. & G.R. Harris Funeral Homes v. EEOC, prior to transitioning and while still presenting as a man, Aimee Stephens had spent several years successfully employed by a small funeral home. Upon notifying the owner that she would be transitioning and would be wearing women’s attire, she was fired in accordance with the employer’s view of “God’s commands.” Stephens prevailed in arguing she was entitled to Title VII protections in the Sixth Circuit. The Supreme Court will consider whether Title VII bars discrimination against employees because of their transgender status.

“What is at stake in these cases is whether or not LGBT employees will be found to have protections against workplace discrimination under federal law,” said Rutgers’ Katie Eyer.

“I don’t think most people realize that there is still no federal law that explicitly includes sexual orientation and gender identity as discrete protected classes for the purposes of employment,” she said.

“All of these cases base their arguments on the fact Title VII, the core federal employment discrimination law, prohibits discrimination ‘because of sex,'” she said. “Here the plaintiffs contend that anti-LGBT discrimination is necessarily also ‘because of sex.'”

ESTABLISHMENT CLAUSE AND RELIGION

The justices will also take up the question of whether Montana violated the religion clauses or the equal protection clause of the U.S. Constitution when it invalidated a generally available and religiously neutral student-aid program simply because the program afforded students the choice of attending religious schools.

“Espinoza v. Montana Department of Revenue is one of those cases that makes me very much wish Sandra O’Connor were still on the court,” Walter Dellinger said.

“I remember when I was clerking for Justice Black, he would often write in his notes on a case, “follow White,” meaning Justice Byron White, in a particular area of the law, or “follow Harlan,”  meaning Justice John Harlan, in another area. And when I come across a case like this, my mind immediately goes to the words ‘Follow O’Connor,'” Dellinger said. “She voted with the conservative justices when it came to upholding the permissibility of including religious groups in broad-based public programs.”

The former acting Solicitor General said O’Connor based her belief in this regard on a “very simple but powerful insight.”

“Her position was, ‘private prayer, good; government prayer, bad,’” Dellinger said. “So she was receptive to upholding the right of religious groups to participate in public funded programs, but not of governments imposing religion, by having prayers at council meetings or erecting statues depicting the 10 Commandments.”

“Justice O’Connor was someone who thought government had no business sponsoring prayers. For her the key to these kinds of cases was ‘intervening private choice.’ That was the circuit breaker,” he continued.

Espinoza stems from the Montana state legislature’s 2015 decision to create the Montana Tax Credit Scholarship Program, which allows Montanans a tax credit for $150 of their contributions to a privately-run scholarship program.

However, the Montana Department of Revenue refused to implement the program, citing the state’s Blaine Amendment, an archaic anti-religious law that forbids tax credits going to schools owned or operated by a “church, sect, or denomination.”

Eventually, the Montana Supreme Court struck part of the program down finding it violated the state constitution.

“Basically, they said, ‘this money can’t go to religious schools, based on a conflict with the state constitution,’ and the state immediately shut the program down,” Paul Clement said.

“Now, you can reasonably argue that the Montana Supreme Court decision wasn’t discriminatory because it was based on the wording of the state constitution, but it nevertheless denied parents the ability to send their children to the school of their choice.

“As a matter of federal constitutional law, I think the state’s interest here is pretty attenuated,” he continued. “But there’s nothing attenuated about the effect on the parent. In the end, a parent wants to send their child to a school that they think is going to provide a better educational opportunity for them. They could choose a religious school, for wholly non-religious reasons. But now they’ve been told, ‘No, you can’t do that.'”

“That’s the challenge in this case: The state’s interest seems pretty attenuated and the parents’ interest seems pretty direct,” Clement said.