Carson v. Makin

Issues

Can a state restrict students’ access to a state-sponsored financial assistance program when the aid would fund attending private religious schools with religious teaching?

This case asks the Supreme Court to balance state public school funding schemes and First Amendment religious freedoms. Maine enacted a law for School Administrative Units without public secondary schools that allows them to provide tuition assistance for students to attend approved, nonsectarian private schools. Carson, Gillis, and Nelson (collectively “Carson”) contend that the nonsectarian requirement constitutes religious discrimination in violation of the Free Exercise Clause of the First Amendment. Makin, in her official capacity as the Commissioner of the Maine Department of Education, counters that Maine’s public school funding scheme is permissible because its purpose of funding secular public education implicates only religious “use” and not religious “status.” The outcome of this case has heavy implications for religious freedom, state school funding schemes, and accessibility to schooling.

Questions as Framed for the Court by the Parties

Whether a state violates the religion clauses or equal protection clause of the United States Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction.

Maine’s constitution mandates the state legislature to require towns to provide “support and maintenance” of public schools at the towns’ own expenses. Carson v. Makin at 25. To do so, the legislature divided the state into 260 school administrative units (“SAUs”) and required that each SAU “make suitable provisions” to maintain and support public schools. Id. Less than half of the SAUs contain a public secondary school. Id.

Acknowledgments

The authors would like to thank Professor Nelson Tebbe for his guidance and insights into this case.

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Hughes v. Northwestern University

Issues

Whether allegations that an employer 403(b) retirement plan charged excessive fees when lower cost investment products and services were available are sufficient to bring a claim for a breach of fiduciary duty under ERISA?

This case asks the Supreme Court to determine the standard to bring a claim that applies to a breach of fiduciary duty under the Employment Retirement Income Security Act (“ERISA”) for allegations of excessive investment fees and recordkeeping fees. April Hughes and other employees at Northwestern University brought suit, claiming Northwestern’s breach of fiduciary duty in ERISA retirement plans, pointing to a large investment option menu and higher-than-average fees. In particular, petitioner April Hughes and others argue that an ERISA’s fiduciary duty of care stems from trust law, and that Northwestern’s imprudent investment and recordkeeping decisions caused excessive fees and breached their duty of care. Respondent Northwestern University answers that context-specific scrutiny is the proper standard for fiduciary duty under ERISA, and that its plan’s cost reflects its prudent investment and recordkeeping decisions. The outcome of this case will impact those people that participate in savings programs that are offered by their employers and the employers themselves, as well the fiduciary duties of said employers, the rights of the beneficiaries, and the available investment options of the beneficiaries. 

Questions as Framed for the Court by the Parties

Whether allegations that a defined-contribution retirement plan paid or charged its  participants fees that substantially exceeded fees for  alternative available investment products or services are sufficient to state a claim against plan fiduciaries for breach of the duty of prudence under the Employee Retirement Income Security Act of 1974?

April Hughes, Laura Divane, and others (collectively referred to as “Hughes”), employees at Northwestern University (“Northwestern”), entered into defined contribution plans, administered and developed by their employer Northwestern, under the Employee Retirement Income Security Act (“ERISA”). Divane, et al. v. Northwestern University, et al. at 983.

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Patel v. Garland

Issues

Under the Immigration and Nationality Act, when can a federal court review a decision that a noncitizen was not eligible to request relief from removal proceedings?

This case asks the Supreme Court to determine whether 8 U.S.C. § 1252(a)(2)(B)(i) allows a federal court to review decisions by an executive agency holding that a noncitizen was not eligible for relief from removal. The Eleventh Circuit claimed judicial review of such decisions was barred by 8 U.S.C. § 1252(a)(2)(B)(i) and declined to review a Board of Immigration Appeals decision, which held that because Petitioner Pankajkumar Patel (“Patel”) had previously made a false statement to a federal agency, he was not eligible for such relief. Patel appealed, arguing that 8 U.S.C. § 1252(a)(2)(B)(i) merely bars judicial review of decisions to grant relief, not the prerequisite eligibility decisions. Respondent Attorney General Merrick Garland (“Garland”) interprets the provision to bar judicial review of any discretionary decision, including some eligibility decisions, although he agrees that the Eleventh Circuit erred in holding that 8 U.S.C. § 1252(a)(2)(B)(i) prohibits judicial review of Patel’s particular eligibility decision. This case has important implications for the future of immigration law and procedure, the status of noncitizens in the United States, and the jurisdiction of federal courts.

Questions as Framed for the Court by the Parties

Whether 8 U.S.C. 1252(a)(2)(B)(i) preserves the jurisdiction of federal courts to review a non-discretionary determination that a noncitizen is ineligible for certain types of discretionary relief from removal.

Patel came to the United States from India with his family in 1992. Patel v. Att’y Gen. (“Patel I”) at 1322. Patel entered the country unlawfully in violation of 8 U.S.C. § 1182(a)(6)(A)(i). Under this statute, the government must either admit or parole foreign citizens upon entry.

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Shinn v. Ramirez

Issues

Are habeas claimants who raise an ineffective assistance of trial counsel claim in federal habeas proceedings despite having failed to raise such a claim at the state court level, as allowed under the Martinez exception, then permitted to develop evidence to support these claims despite 28 U.S.C. § 2254(e)(2)’s bar on such federal evidentiary development?

This case asks the Supreme Court whether a provision of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) bars a federal court from allowing habeas petitioners that fall under Martinez’s procedural-default exception to submit evidence beyond the state record in support of their claims. Petitioners David Shinn and Walter Hensley contend that expanding Martinez’s narrow procedural-default exception risks providing a free pass to federal courts that will incentivize forum-shopping, encourage the withholding of evidence, undermine state sovereignty, and contravene the purpose of AEDPA, which is to limit access to federal evidentiary review. Respondents David Martinez Ramirez and Barry Lee Jones respond that barring evidentiary development in federal court places prisoners in an absurd Catch-22 wherein their procedural defaults are excused due to ineffective counsel and yet they are barred from correcting the deficiencies in their state record due to that same counsel’s negligence. This case implicates federalism concerns over the depth of federal review of state criminal and habeas proceedings and the strength of the Sixth Amendment right to counsel, particularly for indigent, innocent, and mentally ill defendants.      

Questions as Framed for the Court by the Parties

Whether application of the equitable rule the Supreme Court announced in Martinez v. Ryan renders the Antiterrorism and Effective Death Penalty Act, which precludes a federal court from considering evidence outside the state-court record when reviewing the merits of a claim for habeas relief if a prisoner or his attorney has failed to diligently develop the claim’s factual basis in state court, inapplicable to a federal court’s merits review of a claim for habeas relief.

Barry Lee Jones

Acknowledgments

The authors would like to thank Professor John H. Blume for his guidance and insights into this case.

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Becerra v. Empire Health Foundation

Issues

Did the Secretary of the Health and Human Services permissibly include in a hospital’s Medicare reimbursement calculation all the days that a hospital treated patients who satisfied the requirements to be entitled to Medicare Part A benefits, regardless of whether Medicare paid the hospital for those particular days?

This case asks the Supreme Court to determine whether an agency had the authority to interpret the Medicare statute and change the calculation of payments distributed to hospitals that serve low-income patients who receive Medicare benefits. Petitioner Xavier Becerra, the Secretary of Health and Human Services, argues that the Department of Health and Human Services properly followed the procedural and substantive requirements of the Administrative Procedure Act when implementing its interpretation of the meaning of “entitled to” Medicare benefits in effecting a new calculation for determining two different pools of low-income patients. Respondent Empire Health Foundation counters that the agency’s rule causes a severe undercount of the low-income patient pool, causing those hospitals that serve indigent patients to receive a significantly lower reimbursement amount. The outcome of this case has important implications for the distribution of Medicaid funding and the extension of deference to government agencies’ reasonable interpretations of legislation.

Questions as Framed for the Court by the Parties

Whether, for purposes of calculating additional payment for hospitals that serve a “significantly disproportionate number of low-income patients,” the secretary of health and human services has permissibly included in a hospital’s Medicare fraction all of the hospital’s patient days of individuals who satisfy the requirements to be entitled to Medicare Part A benefits, regardless of whether Medicare paid the hospital for those particular days.

The Medicare program currently provides additional payments, known as the disproportionate-share-hospital (“DSH”) adjustment, to hospitals that treat a significantly higher number of low-in

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Cummings v. Premier Rehab Keller, P.L.L.C.

Issues

Are damages for emotional distress available under the Rehabilitation Act and the Affordable Care Act?

This case asks the Supreme Court to consider whether compensatory damages are available for emotional distress in victims of discrimination cases. Jane Cummings (“Cummings”) is deaf and legally blind, and she requested an ASL interpreter for physical therapy sessions. Premier Rehab Keller, P.L.L.C. (“Premier”) denied Cummings’ request for an ASL interpreter. Petitioner Cummings argues that under Title VI of the Civil Rights Act of 1964 and the statutes that incorporate its remedies for victims of discrimination, such as the Rehabilitation Act and the Affordable Care Act, compensatory damages are available for emotional distress. Respondent Premier counters that emotional distress damages are not appropriate remedies under the Rehabilitation Act and Affordable Care Act. The outcome of this case has important implications for victims of discrimination as well as for federal funding recipients.

Questions as Framed for the Court by the Parties

Whether the compensatory damages available under Title VI of the Civil Rights Act of 1964 and the statutes that incorporate its remedies for victims of discrimination, such as the Rehabilitation Act and the Affordable Care Act, include compensation for emotional distress.

In October 2016, Petitioner Jane Cummings contacted Respondent Premier Rehab Keller, P.L.L.C. (“Premier”) seeking physical therapy services. Cummings v. Premier Rehab Keller, P.L.L.C. at 674. Cummings was born deaf and legally blind, and she primarily communicates through American Sign Language (“ASL”) due to her difficulties speaking, reading, and writing in English.

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Dobbs v. Jackson Women’s Health Organization

Issues

Are all pre-viability prohibitions on elective abortions unconstitutional?

This case asks the Supreme Court to determine whether Mississippi’s ban on all elective abortions after fifteen weeks of pregnancy is constitutional. Petitioner Thomas Dobbs argues that the Court should overturn the precedent establishing a constitutional right to pre-viability abortions—Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey—or alternatively, reject viability as a measuring tool. In response, Respondent Women’s Health Center contends that the Court should uphold the constitutional right to abortion because there is no compelling reason to overrule the previous abortion precedents finding such a right. The Court’s decision on this case has serious implications for the rights of women, the role of religion in law-making, and stare decisis.

Questions as Framed for the Court by the Parties

Whether all pre-viability prohibitions on elective abortions are unconstitutional or not?

In 2018, Mississippi passed the Gestational Age Act (“HB 1510”), which prohibits abortions after 15 weeks, except for in cases of medical emergency or severe fetal abnormality. Jackson Women's Health Org. v. Dobbs at 269.

Acknowledgments

The authors would like to thank Professor Sheri Lynn Johnson for her insights into this case.

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American Hospital Association v. Becerra

Issues

Is the Department of Health and Human Services entitled to deference in its interpretation of a statute that enabled it to reduce drug reimbursement rates for hospitals; alternatively, is the Department of Health and Human Services’ action unreviewable because of 42 U.S.C. § 1395l(t)(12)?

This case asks the Supreme Court to determine the scope of authority granted to the Department of Health and Human Services (“HHS”) in setting hospital Medicare reimbursement rates for outpatient drugs. The Medicare Modernization Act (“MMA”) prescribes two alternative reimbursement rate methodologies for outpatient drugs—hospital acquisition cost or average drug price—and conditions HHS’s choice on whether HHS collects hospital drug cost-acquisition data. American Hospital Association et al. argue that MMA prevents HHS from tailoring rates to hospital acquisition costs and varying rates by group unless HHS has the requisite data. Xavier Becerra responds that MMA gives HHS the authority to “adjust” reimbursement rates as necessary, and therefore deference under Chevron permits HHS discretion to set reasonable rates. The outcome of this case has significant implications for the financial health of 340B hospitals, and the Medicare system more broadly, as well as the scope of the administrative state and judicial deference under Chevron.

Questions as Framed for the Court by the Parties

(1) Whether deference under Chevron U.S.A. v. Natural Resources Defense Council permits the Department of Health and Human Services to set reimbursement rates based on acquisition cost and very such rates by hospital group if it has not collected adequate hospital acquisition cost survey data; and (2) whether petitioners’ suit challenging HHS’s adjustments is precluded by 42 U.S.C. § 1395l(t)(12).

The Medicare program consists of Part A and Part B. Am. Hosp. Ass’n v. Azar at 820. Under Medicare Part B, which provides coverage for certain hospital-administered drugs, the Department of Health and Human Services (“HHS”) sets hospital reimbursement rates. Id. The “Outpatient Prospective Payment System” (“OPPS”) regulates the establishment of these rates.

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United States v. Vaello-Madero

Issues

Is it unconstitutional for Congress to establish a program that provides benefits to needy aged, blind, and disabled individuals in all of the states, the District of Columbia, and the Northern Mariana Islands while excluding Puerto Rico?

This case asks the Supreme Court to determine whether withholding a federal benefits program to a United States territory resident violates equal protection. Petitioner, the United States, asserts that, under rational basis review, Congress properly excluded Puerto Rico from the federal Supplemental Security Income (SSI) program because of the territory’s unique tax status and fiscal autonomy. Respondent José Luis Vaello-Madero counters that Petitioner misconstrues the unique relationship between the Commonwealth of Puerto Rico and the United States, especially regarding the Commonwealth’s contribution to the United States Treasury fund. Furthermore, Valleo-Madero emphasizes the discriminatory nature of the Commonwealth’s exclusion from the SSI program. The outcome of this case has important implications for the treatment of territories in relation to that of states, the self-governance of territories, and the distribution of social security benefits for aged and disabled individuals.

Questions as Framed for the Court by the Parties

Whether Congress violated the equal-protection component of the due process clause of the Fifth Amendment by establishing Supplemental Security Income — a program that provides benefits to needy aged, blind and disabled individuals — in the 50 states and the District of Columbia, and in the Northern Mariana Islands pursuant to a negotiated covenant, but not extending it to Puerto Rico.

In 1972, Congress established Supplemental Security Income (SSI), a program that provides monthly cash payments to those that are older than sixty-five, blind, or disabled. See 42 U.S.C. §§ 1382(a), 1382(c). Unlike Social Security benefits, Congress does not fund SSI through payroll taxes; rather, the treasury funds SSI.

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City of Austin, Texas v. Reagan National Advertising of Texas, LLC.

Issues

Is the City of Austin’s sign code, which distinguishes between on- and off-premises signs, an unconstitutional content-based regulation of speech?

This case asks the Supreme Court to consider whether a city sign code’s differential treatment of on-premises and off-premises signs constitutes a content-based regulation of speech. The City of Austin’s sign code permits on-premises, but not off-premises, signs to be digitized, and bans the construction of new off-premises signs. Austin argues that this distinction is a lawful, content-neutral regulation. Reagan National Advertising of Texas counters that Austin’s on- versus off-premises distinction constitutes an unlawful, content-based restriction under Reed v. Town of Gilbert and the Court’s First Amendment jurisprudence. The outcome of this case has important implications for governments considering roadway safety measures and for entities who advertise through off-premises signs like billboards.

Questions as Framed for the Court by the Parties

Whether the Austin city code’s distinction between on-premises signs, which may be digitized, and off-premises signs, which may not, is a facially unconstitutional content-based regulation under Reed v. Town of Gilbert.

Respondents Reagan National Advertising of Austin, LLC. (“Reagan”) and Lamar Advantage Outdoor Company, L.P. (“Lamar”), are involved in the outdoor advertising business. Reagan National Advertising of Austin, Inc. v. City of Austin, at 699. In April and June 2017, Reagan applied for permits to convert their existing off-premises signs into digital signs.

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