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Gorsuch Confirmation Hearings and States and Local Governments: Days 1-3 Update

Posted in Commentary on By Lann McIntyre

Confirmation hearings generally follow a predictable course; Judge Gorsuch’s hearings have been no exception. Senators from the other side of the aisle as the President ask the nominee pointed questions on controversial topics which the nominee does his or her best to politely avoid answering. As a result, many issues of interest to states and local governments receive little meaningful attention.

While a friendly Senator (Flake, R-AZ) asked Judge Gorsuch whether a particular case he ruled in was consistent with the “principle of states as laboratories of democracy” and another friendly Senator (Crapo, R-ID) asked Judge Gorsuch to discuss the Tenth Amendment, federalism was rarely discussed as such and preemption wasn’t discussed at all. Likewise, many of the issues of particular importance to local governments—qualified immunity and property rights—also were not discussed.

Judge Gorsuch did say Continue reading →

 

What Might Justice Gorsuch Mean for States and Local Governments?

Posted in Commentary on By Lisa Soronen, Executive Director, SLLC

The authors of Searching for Scalia evaluated who on President Trump’s list of potential nominees to replace Justice Scalia’s seat on the Supreme Court would be most like Justice Scalia—the originalist, the textualist, and, most importantly, the conservative. The winner:  Supreme Court nominee Judge Neil Gorsuch!

While just one case is too few to judge any Supreme Court nominee, one case in particular gives states and local governments a reason to be excited about this nomination. Last year Judge Gorsuch (strongly) implied that given the opportunity the U.S. Supreme Court should overrule Quill Corp. v. North Dakota (1992). In Quill, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax.

While Judge Gorsuch hasn’t ruled on abortion (an issue states care about) his most prominent rulings involve a related issue (the Affordable Care Act birth control mandate), which is not of particular interest to states and local governments.

Interestingly, in the one area of the law where the views of Judge Gorsuch and Justice Scalia differ—agency deference—the views of states and local governments are generally more in-line with Judge Gorsuch’s view.

Continue reading →

 

Federal Agency Deference: SLLC Argues Less is More

Posted in Case Notes IMLA Briefs on By Lisa Soronen, Executive Director, SLLC

If the war to overturn Chevron v. NRDC (1984) is to be won, many battles will probably have to be won first.

 While overturning Chevron is not on the table in Coventry Health Care of Missouri v. Nevils, limiting it is. The State and Local Legal Center (SLLC) asked the Court in its amicus brief to rule that Chevron deference does not apply when an agency is construing the scope of a statute’s preemption provision, absent Congress’s assent.  

 In Chevron v. NRDC the Supreme Court held that courts should defer to reasonable agency interpretations of ambiguous statutes. States and local governments generally prefer that courts not defer to federal agency regulations because this deference gives federal agencies a lot of power.  Continue reading →