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SCOTUS Oral Argument Preview: Week of March 23, 2015

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By Mark Wilson, Esq. on March 16, 2015 4:28 PM

The Supreme Court is taking a break from oral arguments, but will resume next week with more of what the Court has become very interested in this term: agency regulatory authority.

On the docket will be some interesting First and Fourth Amendment issues, but dissents to both Perez v. Mortgage Bankers Association and Dept. of Transportation v. Assn. of American Railroads, along with oral argument in King v. Burwell, show that the real hot button this term is whether agencies have too much leeway in interpreting their own regulations.

Here's a preview of next week's Supreme Court oral arguments:

Walker v. Sons of Confederate Veterans (Monday, March 23)

The Texas Motor Vehicle Board denied the Texas Division of the Sons of Confederate Veterans' ("SCV") application for a specialty license plate featuring the Confederate flag. SCV appealed to the Fifth Circuit on First Amendment grounds. That court agreed with SCV that a license plate was not government speech and that the Motor Vehicle Board engaged in unconstitutional viewpoint discrimination.

City and County of San Francisco v. Sheehan (Monday, March 23)

San Francisco police were asked to assist a social worker with transporting a mentally ill woman, Teresa Sheehan, to a mental health facility. They entered Sheehan's room without a warrant. Sheehan "reacted violently," threatening officers with a kitchen knife. Rather than wait for backup, officers forced their way back into Sheehan's room and shot her. The Ninth Circuit found triable issues surrounding 42 USC Section 1983 and a violation of the Americans With Disabilities Act.

This will probably be a contentious case, as police shootings of mentally ill suspects have been in the news recently. Officers are often criticized for not using peaceful de-escalation methods before resorting to shooting. The Court will decide if the ADA requires them to do so.

Bank of America v. Caulkett and Bank of America v. Toledo-Cardona (Tuesday, March 24)

These consolidated cases deal with bankruptcy. Eleventh Circuit precedent holds that the Bankruptcy Code allows a debtor to "strip off" a junior lien if the value of the senior lien exceeds the fair market value of the house (meaning there's no collateral left to secure the junior lien, rendering it unsecured).

The Supreme Court said back in the 1990s that the Bankruptcy Code doesn't allow a debtor to "strip down" a partially secured lien. Three other circuits took that to mean a debtor couldn't "strip off" an unsecured junior lien either, but the Supreme Court hasn't addressed that particular problem -- until now.

Michigan v. EPA, Utility Air Regulatory Group v. EPA and National Mining Association v. EPA (Wednesday, March 25)

In these consolidated cases, the EPA determined that regulating electric utilities' power plants for pollution was "appropriate and necessary," but decided consideration of the cost to utility companies to remedy that pollution was not one of the factors Congress permitted the EPA to take into account. Twenty-three states sued, claiming the EPA's decision was unreasonable, as the cost to remedy the pollution from power plants would exceed the benefits from the regulation. The D.C. Circuit held that, because the term "costs" doesn't appear anywhere in the relevant statute, it was entirely reasonable for the EPA to conclude it couldn't consider costs.

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