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February 27, 2014

In a post on his blog yesterday,  Josh Blackman impugns (as  “opportunistic”) the motivation and appropriateness of an amici curiae brief recently filed by CAC on behalf of key congressional architects of the Affordable Care Act.  Blackman makes several wild swings, so wide of the mark as to require a brief corrective response.   The case is Halbig v.

February 26, 2014

What does anti-LGBT legislation in Arizona and Kansas have to do with a pair of Supreme Court cases out of Oklahoma and Pennsylvania challenging the Affordable Care Act?  Quite a lot. The efforts to give businesses a right to deny women access to contraceptive coverage and to legalize discrimination against gay men and lesbians are joined at the hip.

February 20, 2014

Although barely noted by the media, immediately upon returning from the three-day President’s Day weekend, bitter-end opponents of the Affordable Care Act suffered a major defeat, at the hands of Judge James R. Spencer, a Reagan appointee to the United States District Court for the Eastern District of Virginia.  Tuesday afternoon, February 18, Judge Spencer dismissed a complaint filed in September of last year by eminent conservative Supreme Court advocate Michael Carvin, on behalf of the Competitive Enterprise Institute, that sought to bar “premium assistance” tax credits and subsidies to needy individuals purchasing health insurance policies on ACA exchanges in states that have opted to not set up an exchange of their own, but to pass that buck to the Federal government. 

February 20, 2014

 Over at SCOTUSblog, Professor Douglas Laycock urges the Supreme Court to hold that Hobby Lobby, Inc. and other secular, for-profit corporations exercise religion, arguing that “Congress left a clear and explicit record that . . . [the Religious Freedom Restoration Act] covers for-profit corporations and their owners.”  Laycock is an immensely respected scholar of the First Amendment, who has written a long list of major articles on the Religion Clauses and argued a number of landmark Supreme Court cases, and his views are entitled to very serious consideration.  But his argument in favor of the proposition that Congress intended to give secular, for-profit corporations the right to the free exercise of religion for the first time in history – as part of a bill designed to restore free exercise protections taken away by the Supreme Court in Employment Division v. Smith  – is unconvincing.  Indeed, Professor Laycock’s arguments supporting Hobby Lobby cannot be squared with Professor Laycock’s own prior scholarship on the meaning of RFRA.

February 18, 2014

Clean air.  Presidential power.  Congressional dysfunction. All this and more are at issue in two Supreme Court cases that, in the words of environmental law superstar Richard Lazarus, stand poised to “produce the most significant term ever for the Clean Air Act.”  The first, argued in December, is EPA v. EME Homer.  It involves the EPA’s effort to prevent upwind emitters from polluting downwind states.  The second, set to be argued in a little over a week, is Utility Air Regulatory Group v. EPA, aka the “Greenhouse Gas Cases”—the topic of this post.

February 14, 2014

Last night, U.S. District Judge Arenda L. Wright Allen of the Eastern District of Virginia sent an early Valentine’s Day gift to the gay men and lesbians of the Commonwealth – a blockbuster ruling in Bostic v.