Recently in Supreme Court Category

Paging Todd Zywicki. CFPB director Richard Cordray complains that 9% of bank customers pay 84% of overdraft fees, with the implication that paternalistic regulation is needed. Of course, as Shannon Phillips points out (via Funnell), what this statistic really reflects is that the vast majority of account holders use their accounts responsibly: if someone in that 9% were to do a better job of balancing their checkbook, they'd move into the 91%. But CPFB regulation (still in a notice and comment procedure, with comments due by June 29), would likely punish the 91% to protect the 9% from themselves. Except that without the overdraft fees, banks will find it unprofitable to serve these customers in the first place, and will instead charge monthly fees that effectively preclude any access to the banking system for both the responsible and irresponsible lower middle class. But at least regulators can feel better that they stopped overdraft fees.

Similarly, Jeff Sovern complains that many consumers and students are cluelessly engaging in complex financial transactions without understanding basic concepts like variable and fixed interest rates. The proposed solution—required use of mortgage counselors—would make mortgages more expensive for everyone, even those responsible citizens who are capable of representing their own interests and making their own choices without the needless additional overhead. Why not let consumers choose for themselves whether they need to hire a financial advisor?

Part of the problem in the mortgage context, I would strongly suspect, is the degree to which meaningful disclosures are buried in meaningless defensive disclosures banks engage in upon risk of class action liability. To take a related example, the pending Supreme Court case of First American Financial Corp. v. Edwards involves a RESPA class action alleging a technical violation of the law without any financial injury; while this is not a disclosure case, it shows the degree to which banks face litigation exposure by entrepreneurial rent-seeking trial lawyers without regard to whether the alleged transaction problem actually harms consumers. The disclosure regime has grown to the extent that it has become counterproductive: even brilliant experienced federal judges find it unprofitable to read the disclosures. Where CFPB could be useful is to create a clear-cut disclosure regime—a page of disclosures—together with preemption precluding lawsuits over the lack of the other 100 pages of disclosures. Earlier.

Last week, the Supreme Court heard oral arguments in Arizona v. United States on the issue of "whether federal immigration laws preclude Arizona's efforts at cooperative law enforcement and impliedly preempt four provisions of S.B. 1070 on their face." Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review, recently discussed the case in our regular podcast series.

Today, we feature, fellow and senior legal analyst with the American Civil Rights Union and legal contributor to Breitbart News, Ken Klukowski's hypothesis on how the Court will rule:

I think two of the provisions of the statute, the alerting of federal authorities or inquiring with federal authorities regarding immigration status and also the warrantless arrest authority: those provisions fall I think pretty well within what we refer to as police power which is an inherent authority that all states possess to make laws for public health, public safety, social welfare, personal responsibility and morality. Those are the two, I believe, that the one judge in the Ninth Circuit voted to say was okay. I think there's a good chance, a real solid chance, you might be able to get five votes to uphold those. And I think that would be correct.

The other two provisions, making it a state crime not to have the federally required registration documents on you and also the provision making it a crime for an illegal alien to solicit work. Those I think face an uphill battle and I think that those are a much closer call regarding current federal law. Again, not saying that that federal law to the contrary, [if it is to the contrary] not saying it's a good idea, just saying that's a judgment that Congress has made. And so the way to change that would be Congress amending the law. Courts do not have the discretion to decide whether or not Congress's law is a good one. They, just so long as it's constitutional, need to uphold it against any contrary state law.

Klukowski also comprehensively discusses the central legal issues and analyzes the arguments as articulated before the Court in the full podcast.

Speaking of upside-down preemption, the United States faced a lot of skepticism from the Supreme Court yesterday over its aggressive attempt to strike down Arizona's anti-illegal-immigration law, SB 1070. As Michael Greve argues, "far from conflicting with federal law, S.B. 1070 complements it." More: Levey; Reason; WaPo; SCOTUSblog.

Earlier on POL: Shapiro podcast; Romney campaign; upside-down preemption; rule of law and the Obama administration.

Yesterday morning, the Supreme Court heard oral arguments in Arizona v. United States on the issue of "whether federal immigration laws preclude Arizona's efforts at cooperative law enforcement and impliedly preempt four provisions of S.B. 1070 on their face." To get further insight on how the argument played out before the Court and how the justices may rule, we invited Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review, to discuss the case for our regular podcast series.

Shapiro opened the discussion by outlining the federal government's challenge to Arizona's immigration law:

The law is more than one basic provision and there has been a lot of misunderstanding in the media about what this involves. First of all, the case has nothing to do with racial profiling or discrimination, non-ethnicity or anything like that. It's actually, when you get down to it, a pretty boring and technical legal matter involving whether particular provisions of the state law conflict with the federal law. And most of the state law, the so-called S.B. 1070, has been in effect for almost two years now. There are other states who have passed copycat laws; some that go further than Arizona's, but Arizona kind of set the mark.

The only four provisions of it that were ever enjoined by the lower courts and that are now at issue before the Supreme Court are the following:

First, Section 2(B), which requires police to check the immigration status of anyone they have lawfully detained when they have reasonable suspicion to believe that person has been in the country illegally.

Second, Section 3, which makes it a state crime to violate federal alien registration laws.

[Third], Section 5(C), [which] makes it a state crime for illegal aliens to apply for work or work as independent contractors.

Finally, Section 6, which allows the warrantless arrests when the police have probable cause to believe that a person has committed a crime that makes them subject to deportation.

These are the only four provisions that the Supreme Court took up this morning.

After thorough analysis of the oral arguments, Ilya was asked how he thought the Court would rule, to which he replied:

I'm on the record, I've written before that I think probably three of the four will be upheld. Even the registration one looks to me like enough of a parallel without creating a new type of state law. But the one that is really in trouble is the creation of the new sanctions on employees. So I think if I had to put down what I think they should do, it's probably to uphold three of the four.

The final oral argument of the term capped what was a highly publicized year for the U.S. Supreme Court. Now for the eagerly awaited rulings which we at Point of Law plan to cover comprehensively during the next couple of months. Additionally, please check back for an upcoming podcast which further explores the critical and controversial Arizona v. U.S. case.

Fourth Circuit Judge J. Harvie Wilkinson has a new book titled Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance, which argues against "an ever-increasing displacement of democracy." George Will discusses. See also: Adam White in WSJ; The Public Discourse; Graber; Mirror of Justice; Rosen in NYT.

Last week, Point of Law wrapped up a featured discussion that we hope helped shed a light on the legal issues involved in the health care cases argued before the U.S. Supreme Court. We were grateful for the participation of some of the most prominent legal scholars and analysts. Two of those distinguished participants returned to discuss the many relevant legal issues and to expand on their commentary in the discussion.

In a podcast recording, former president of the ACLU and current professor of law at New York Law School, Nadine Strossen, analyzed the arguments of those challenging the individual mandate, saying:

There was so much emphasis in the briefs and the oral arguments challenging the law that this kind of regulation is different, 'never before.' That's why using words carefully, as all advocates do, the opponents and critics of the central minimum coverage provision refer to it as an individual mandate. Because they are trying to stress the notion that this is actual government compulsion to individuals to obtain some services that they otherwise would not; to obtain some product that they otherwise would not. Arguably, that's something that has never been done before. I disagree with that characterization, but I think that's really where the fight is going to come down.

Michael Rosman, general counsel of the Center for Individual Rights, in his podcast, articulated his argument by analyzing instead the arguments in support of the individual mandate:

[You've identified two different arguments] One is you cannot self-insure, which is basically the same thing as saying you can't just sit there and do nothing. In which case the question is, is it a regulation to force someone to purchase a product in a market, is that a regulation? The other thing they say is, well everybody, as you say, is going to buy health care at some point or another and we're simply regulating how they're going to pay for it. The problem with that of course is that; well it doesn't. It doesn't regulate how people pay for health care. You don't have to use your insurance in order to pay for health care.

In the context of the health care market, it's like asking whether subsidized student loans regulate the market for higher education services. Well, they certainly give people an incentive to use loans to pay for higher education services, but you can reasonably question whether that constitutes a regulation of the higher education services market. They certainly have given people an incentive to use their insurance to pay for health care, but they haven't said you have to. And they haven't otherwise regulated how you go about paying for health care. So arguably, and I think this is not a bad argument at all, the statute doesn't really regulate the market for health care in that way.

We hope to bring all of our distinguished discussants back to comment post-ruling to get their thoughts on the decision in light of their commentary. For our most recent Obamacare coverage, listen to the full versions of the podcasts and review the results of our online poll.

On Tuesday, March 27, Point of Law launched a featured discussion to run concurrent to the oral arguments in the health care cases before the U.S. Supreme Court. Participating the discussion were some of the nation's leading legal scholars and analysts. We are really grateful for their participation in what was an engaging, thought-provoking and comprehensive discussion which while not "unprecedented" on Point of Law was of the highest caliber.

Now we would like to know what our readers thought of the discussion. We want to know which discussant you believed had the most compelling arguments and how you think the court will rule on the challenged portions of the health care legislation. All of the comments are available under our featured discussions tab and sorted from oldest to newest post. We look forward to your feedback!

Additionally, two new podcast interviews will be uploaded on PoL next week featuring discussants Nadine Strossen and Michael Rosman as they react to the oral arguments and expand on the arguments they articulated in their comments.

Please take a second to participate in our poll!

PLF wins the important Supreme Court case of Sackett v. EPA, reaffirming the right of landowners to challenge agency compliance orders under the Administrative Procedure Act. Justice Alito's concurrence goes even farther, citing CEI's amicus brief, the only amicus brief cited in the case. Congratulations to all. More at ABAJ.

James R. Copland

As the Supreme Court holds oral arguments to consider challenges to the 2010 Patient Protection and Affordable Care Act on constitutional grounds, Point of Law is hosting a featured discussion that we hope will help shed light on the legal issues involved, as well as those that seem to be of particular interest to the justices. We're delighted to welcome the following legal scholars and analysts--among the leaders in their fields--to Point of Law:

• Erwin Chemerinsky, University of California, Irvine School of Law

• Richard Epstein, New York University Law School

• Orin Kerr, George Washington Law School

• Gillian Metzger, Columbia University Law School

• Michael Rosman, General Counsel of the Center for Individual Rights

• Nadine Strossen, New York Law School, formerly president of the American Civil Liberties Union

On Tuesday, March 27, after one day's oral argument, we'll be kicking off with comments from Professor Chemerinsky, Professor Strossen, and Mr. Rosman. Our discussion will continue over the next two weeks--come back and visit what promises to be an exceptional conversation.

Next week, the Supreme Court will be holding extended oral arguments on the constitutionality of the landmark 2010 health-care reform law, the Patient Protection and Affordable Care Act, known popularly--at least among the law's critics--as Obamacare. Beginning on Tuesday, Point of Law will be hosting an exceptional panel of legal scholars and analysts, across the political spectrum, to discuss the oral arguments and the rationales for and against the law's constitutionality:

• Erwin Chemerinsky, University of California, Irvine School of Law


• Richard Epstein, New York University Law School


• Orin Kerr, George Washington Law School


• Gillian Metzger, Columbia University Law School


• Michael Rosman, General Counsel of the Center for Individual Rights


• Nadine Strossen, New York Law School, formerly president of the American Civil Liberties Union