Archive for the ‘Government Action’ Category

WHAT HAPPENED:  The U.S. Patent and Trademark Office has a rule that prohibits trademarking any name that “disparages” any living or dead individual, belief or national symbol.  Two such entities that have had their trademarks rescinded by Federal Circuit Courts include THE SLANTS (the rock band shown above) and the WASHINGTON REDSKINS (image not shown as it is too offensive).

WHY IS THIS BEFORE ANY COURT:  The argument goes that the PTO’s denial of trademark protection violates the First Amendment.  For the Slants, their use of the term represents reclaiming offensive terminology.  For the Redskins, their use of the term represents sticking with racist words because it costs too much to change it.

WHAT WAS THE RULING:  The Slants won, and the Redskins lost.  The Redskins have now petitioned the Supreme Court to get priority review of their claim since they lost at the lower level.

WHAT ARE THE RAMIFICATIONS:  At the heart of it, the concern in this case is whether you can get priority use of an offensive term.  If that applies to you, you probably stink.

WILL THIS GO BEFORE THE SUPREME COURT:  More likely than not this will have some life at the Supreme Court next term.  There is a split in jurisdictions in regard to whether this rule is Constitutional or not, so that needs some clarity.  One interesting issue would be whether or not the Court makes a factual distinction between these two cases, or makes a rule that applies to all similar situations across the board.

WHAT HAPPENED? Texas passed a law that raised standards on facilities performing abortions.  Provisions included having a physician who had attending privileges at a hospital within 30 miles and requiring that clinics have the same standards as ambulatory surgical centers.  In response to these requirements, most of the abortion clinics in Texas closed down.

WHY IS THIS BEFORE THE SUPREME COURT?  The Supreme Court has held that any law that puts an “undue burden” on a women’s right to choose violates the 5th Amendment.  This law, which could be argued is intended to increase the standards for abortion clinics, creates an undue burden not on the face of the law, but in the effect that the law has on women in Texas.

WHAT IS THE RULING?  This case is not yet decided.

WHAT ARE THE RAMIFICATIONS?  The ramifications in both directions are fairly significant.  If the Abortion Clinics win, it adds an extra wrinkle to the “undue burden” test, that allows the Court to consider the effect of the law instead of just its intent.  If Texas wins, state government seeking sneaky ways to restrict abortion rights have the roadmap to doing so.

ROOT FOR WHOLE WOMEN’S HEALTH IF:  You a pro-choice advocate who doesn’t trust the government to follow directions on abortion, and/or admit defeat.

ROOT FOR TEXAS IF:  You are a pro-life advocate living in the middle of no where.

WHAT HAPPENED:  In 2014 and 2015, President Obama passed two “executive orders” which pertained to immigration, the DACA and the DAPA.  In the interests of brevity, those two orders granted deferred action to two general classes of illegal immigrants, (1) people who arrived in the U.S. under the age of 16 and were now over 30, and (2)  parents of natural born citizens who never obtained their own citizenship.  These orders instructed the government against deporting those citizens, and instead allowing them to stay in the U.S., even though they would not be granted citizenship rights.

WHY IS THIS BEFORE THE SUPREME COURT:  Immigration issues are primarily Congress’ jurisdiction, as the Legislature has primary authority to create policy and regulations regarding the status of illegal immigrants.  Therefore, opponents of these actions claim the President has exceeded his authority to act.  On the other hand, the agency that performs these actions is under the President’s control and the President is allows to make edicts for those agencies to follow.  Therefore, the issue, in part, comes down to whether or not the President’s executive orders are so sweeping that they require greater action, of if the executive orders are within his ability to control lower agencies.

WHAT IS THE RULING:  This case is not yet decided.

WHAT ARE THE RAMIFICATIONS OF THIS DECISION:  This case could determine the occupancy status of hundreds of thousands of people who are currently living in America, but do not have citizenship.  These people likely have no where else to go if they are removed from the country, or could be separated from their children if deported.  If the orders are upheld, this could allow the government to have a better handle on undocumented aliens, as people would be more likely to come participate in registration if they were not concerned about deportation.  On the other hand, these orders only stabilize the situation and do not provide a real solution to the concern citizenship and illegal immigrants.

ROOT FOR U.S.:  If you are OK with expanding Presidential Power to resolve a situation temporarily, and probably until a Republican is voted into office.  You are also probably an advocate for the legalization of marijuana.

ROOT FOR TEXAS:  If you hate President Obama, Obamacare, and any other Obama-related terms.  You are also probably someone who likes it when people follow the Constitution, at least when it comes to this situation.

WHAT HAPPENED: In 1882, Congress passed a law that granted ownership of a certain parcel of Native American land to American settlers.  That parcel of land, which was owned by the Omaha Tribe, became Pender, Nebraska.  Recently, the Omaha Tribe sought to enforce taxes and liquor licenses on local alcohol vendors on that parcel of land.  Pender and the State of Nebraska sought and received an injunction blocking the Tribes regulations.  That injunction was overturned at the Circuit level, ruling in favor of the Tribe’s ownership of the land.

WHY IS THIS BEFORE THE SUPREME COURT:  The Supreme Court’s unenviable task is to look at the 1882 law and determine whether or not that law passes the Court’s existing review for 19th Century Congressional acts that sold Native American Land.  This standard comes from the case of Solem v. Bartlett, which considers (1)  the language of the federal law at issue, (2) the history of the passage of the law, (3) and the treatment of the land afterward.  The Circuit Court decision stated that there was not conclusive evidence that this test favored Pender and Nebraska, which would revert the Congressional grant of land back to the Omaha Tribe.

WHAT IS THE RULING:  This case is not yet decided.

WHAT ARE THE RAMIFICATIONS OF THIS DECISION:  The people most at issue here are the parties in this case, as it is unlikely that this case will extend to other cases or other grants of land.  If the Court overturns the Circuit Court and favors Nebraska, it could signal the Court’s movement away from the old standard of review, but that would depend on the specific opinion.

ROOT FOR NEBRASKA IF:  You sell alcohol in Pender, Nebraska, or are one of the increasingly growing Americans who is unreasonably terrified of immigrants.

ROOT FOR PARKER IF:  If you have any recognition of American history whatsoever.


WHAT HAPPENED:  Voters in Texas argue that their votes do not count as much as the votes of other Texas citizens who live in different districts.  The principal argument is that the method of determining districts, which counts total population instead of eligible voters, is unconstitutional.  The voters in this particular case argue that counting eligible voters is a more Constitutional way to determine districts.

WHY IS THIS BEFORE THE SUPREME COURT:  Previous cases have dealt with this issue, and while a test has been developed, it is generally recognized (or at least it should be) that voting districts are never going to perfect.  So the Court applies equal protection to these claims but has generally held that voting districts that are close enough and that are not created on the basis of discrimination are usually fine.

WHAT IS THE RULING:  This case is not yet decided.

WHAT ARE THE RAMIFICATIONS OF THIS DECISION:  If it is held that using total population violates the equal protection clause, then many states will have to go back to the drawing board to determine how to create and balance districts.  That could cause greater indecision on this topic, as there is no guarantee that calculating eligible voters will resolve the problem completely.  At very least, this would likely give States greater latitude to create their own voting districts, which can be good or bad depending on how you feel about certain States.

ROOT FOR EVENWELL IF: The principal of Constitutionality means more than the practical effectiveness of the status quo.

ROOT FOR ABBOTT IF: You’re the kind of person that is OK with things not being perfect as long as they are not fundamentally corrupt or broken.


This case arose out of a wrongful death lawsuit against Iran for deaths caused by terrorism.  After a judgment was issued in favor of Plaintiffs, the Plaintiffs were unable to collect money to satisfy the judgment via traditional means.  Even though Iran had 2 billion dollars of funds in a New York bank, Federal law precluded plaintiffs from attaching those funds.


To compensate Plaintiffs for their injuries, Congress passed the Iran Threat Reduction and Syria Human Rights Act which allowed these specific Plaintiffs to obtain these specific funds.  This Act has been contested as an unconstitutional breach of the Separation of Powers doctrine, which disallows one branch of government from stepping on the toes of another branch of government.  This Act also could be construed as an unconstitutional Bill of Attainder, which prevents Congress from passing a law that only affects one specific person.


This case is not yet decided.


Presumably, if the law is struck down the Supreme Court will likely draw the ire of Congress and the President, who support the statute.  If the law is upheld, one would assume that Iran wouldn’t be super pumped about it, and this bodes fairly poorly for other sovereign nations who have either money or property within the U.S. under the expectation that it is protected from domestic attachments.


Love the Founding Fathers and would like to see the current government have egg on their face.   You are also probably ignoring all the terrorism implications.


Love the Patriot Act and don’t mind pissing off Iran.  You are also probably ignoring all the Constitutional implications.




The Federal Energy Regulatory Commission passed regulations that affect the wholesale-electricity retail markets. This has an effect on how electricity is regulated, since /retail energy trading is a market that can assist parties/businesses who consume high amounts of electricity and can also help energy providers prevent blackouts


This is a case that deals with how administrative agencies make rules and regulations in the market of private business. While the FERC has authority to control certain aspects of the energy market, this particular type of market is not specifically given to the FERC from Congress, so the question is whether or not the Court will infer this type of power in favor of the FERC.

FULL DISCLOSURE: I don’t understand this case at all. I tried very hard to research the legal issues and listen to the oral argument, but at the end of the day it seems to come down to economics, wholesale, and numbers. My public high-school education and liberal arts college degree did not adequately prepare me for blogging about these topics.


This case is not yet decided.


By all accounts, the ramifications of this decision are really just limited to the regulation of retail and wholesale energy. If you are interested in this case more, you should watch the Enron documentary, Enron: The Smartest Guys in the Room, which is part why we are here to begin with.


Like the bureaucracy of politics over the bureaucracy of big business.


Look forward to the potential disaster that comes from unregulated capitalism.


The Employment Retirement Income Securities Act (ERISA) is a federal law that governs disputes between employee and employer health insurance plans. Vermont has a separate State law that requires Liberty Mutual to report certain health care claims to a separate database than ERISA.


Federal preemption is a legal concept wherein Federal law takes precedence over State law in most situations. The theory there is that the Federal government should be able to act independently of each State’s particular laws, since each State is different and States also tend to favor their own citizens over the citizens of other States. While ERISA is generally considered superior law, ERISA also has caveats written into the law that permit States to act in certain areas. This case evaluates those exemptions to see if the Vermont program is permitted.


This case is not yet decided.


This decision should have a fairly substantial impact on the practice of employee health care disputes. If the Vermont program is permitted, it allows more review and better procedure for ensuring the safety, efficacy, and quality of health care delivered to patients. If ERISA precludes the Vermont law, there would be less government interaction required for employers, which would keep procedures consistent across States and the Courts.


Are republican in the literal sense, and a democrat in a figurative sense.


For real, Liberty Mutual has the worst commercials on TV, right?  They’re smug and they get played all the time.  So screw them, regardless of legal implications.




Plaintiff is a white person who was rejected for admission to the University of Texas. Plaintiff believes that the rejection was due to an affirmative action program in which UT admits automatically admits any student who graduated in the top 10% of their class, and then considers race for the remaining applicants. Presumably, Plaintiff fit into the class of people where race was weighed in the application and was rejected.


This case is before the Supreme Court because the Supreme Court has a long history of making convoluted rules that seem well-intentioned in a vacuum, but are mostly just rhetoric that is enforced at the will of individual justices. Per previous cases in California and Michigan, the admissions program can consider race, but can’t be a quote. It also cannot have the purpose of remedying past discrimination, but it can be used to foster diversity.   Even though it shouldn’t be, this case is probably a crapshoot.


This case is not yet decided.


This case could have long-lasting effects on affirmative action in higher education. This program seems to be within the realm of acceptable programs under precedent, but this is a fairly flimsy set of precedent so we could have a whole new set of rules once this case gets handed down. It would not be surprising if decision, and future precedent, went strongly in one way or another.


Are (1)  an internet commentator or (2) between 5 and 4 justices on the Supreme Court.


Jeez, I don’t know, everyone else? I feel like most people who don’t like this are probably too scared to say it out loud out of fear sounding racist.


WHAT HAPPENED:  Plaintiff is a police officer who was disciplined by his job for engaging in political speech.  The speech in question was Plaintiff helping his mother pick up a political sign for her home, when police officers in this City were told not to take any action related to the upcoming political campaign.  When confronted by his job, Plaintiff argued that he was not engaged in political speech but just helping his mom.  This is a perfectly good argument, That is until….

WHY IS THIS BEFORE THE SUPREME COURT:  Lawyers get involved and Plaintiff sues for violating his civil rights through his on-the-ob discipline.  Whereas Plaintiff first argues that he is not engaged in speech to avoid getting punished at work, at trial Plaintiff argues that the punishment violates his Free Speech rights under the First Amendment.  After some general tomfoolery with the trial court level, Plaintiff’s case is dismissed before trial, as the Court held that no reasonable jury could find that defendant engaged in political speech.  That is until….

WHAT ARE THE RAMIFICATIONS OF THE DECISION: You consider that Plaintiff’s job certainly believed he was engaged in political speech which started this whole mess to begin with.  On a specific level, this case has few ramifications, as the nuances of each side flip-flopping their use of Free Speech as a sword and shield will probably render a decision in this case that is uninteresting and unrelated to political speech and campaign support from government officials.  The more interesting argument is whether or not the government’s mistaken belief that someone engaged in Free Speech should take precedence over what the person speaking actually intended.  If all the stars align, you could get an interesting decision on whether the Free Speech is there to protect the person making the speech or to prevent the government from banning the speech, which would tip the hands of the Court when it comes to this somewhat decisive issue.  That’s probably not going to happen in the final decisions, but an interesting thing to look for in the oral arguments.

WHAT IS THE RULING:  This case is not yet decided.

YOU SHOULD ROOT FOR HEFFERNAN:  If your view of the First Amendment includes protecting bad-boy police officers who don’t “play by the rules” and don’t “fit within the system”, like Ole’ Farva from Super Troopers.

YOU SHOULD ROOT FOR THE CITY OF PATERSON:  If your view of the First Amendment does not include giving free passes to bad-boy police officers who don’t “follow direction” and “obey orders”, like Ole’ Farva from Super Troopers.