Constitutional Law

In my last column, I explored some aspects of an important case, Arizona Legislature v. Arizona Independent Redistricting Commission, pending at the Supreme Court.

One of the important Supreme Court cases currently being briefed (with oral argument set for March), Arizona Legislature v. Arizona Independent Redistricting Commission, involves the question whether the U.S. Constitution and congressional statutes permit the people of a state to implement an initiative creating an independent redistricting commission (IRC) - i.e., one that is not controllable by the elected state legislature - to devise congressional districts.

In Part One of this two-part series, I contended that the reading of the Obamacare statute offered by the plaintiffs in the important King v. Burwell case pending in front of the Supreme Court was problematic for reasons grounded in federalism.

In an essay for Justia a few weeks ago, my fellow columnist and friend Mike Dorf wrote about how the Obamacare statute (Act) might be in danger in the King v. Burwell case pending at the Supreme Court today because of things various Justices felt and said in the 2012 Obamacare case, National Federation of Independent Business v. Sebelius (National Federation).

Among the interesting U.S. Supreme Court cases this fall is U.S. Department of Transportation v. Association of American Railroads, to be argued in about a month, involving the so-called "nondelegation" doctrine - the idea that Congress cannot lawfully delegate or cede legislative powers to other institutions or actors. If the Court ends up relying on some form of a nondelegation principle in striking down the federal statute at issue, the case would break important new ground.

Background on the Nondelegation Concept

'Tis the season to begin looking carefully at the Supreme Court's 2014-2015 docket, now that the Justices have returned from their summer recess and are hearing cases again. One interesting case to be argued in a couple of months, Elonis v. United States, raises questions about how courts should define so-called "true threats" that fall outside First Amendment protection and thus are subject to punishment.

The past year or so has been a rough period for people who support the design of the direct democracy process in California. Last summer, as I explained at the time, the U.S. Supreme Court wrote its Hollingsworth v.

Americans know their history and want to change it.

In my last column, Part I of this Two-Part series, I argued that lower courts are justified in paying (indeed perhaps required to pay) close attention to Justice Kennedy's concurring opinion in this summer's blockbuster Burwell v. Hobby Lobby ruling, even though the "Opinion of the Court" in that case had the support of five Justices.

Legal and political commentators have already spent thousands of hours on how best to understand Justice Alito's majority opinion in Burwell v. Hobby Lobby, and whether Justice Ginsburg's dissent was accurate in saying the decision was of "startling breadth."