Continuing Appropriations Act, 2014 (National Journal)

1. Continuing Appropriations Act, 2014 (National Journal)

2. Case Law – Judicial Opinions • “ … when you are up to your ass in alligators, it is difficult to remember that your initial objective was to drain the swamp.”

3. The Role of Law • Public policy (law) the rules of behavior imposed on society by a government with society's approval • Provides the context in which individuals and corporations decide how to behave • Establishes goals • Provides incentives – carrots • Provides regulations – big sticks

4. The Characteristics of Law • A balance between • Constant change • Federal & State statutes [15,000/year] • Federal & State rules • Judicial opinions [55,000/year + 3 million extant] • Need for stability in defining, enforcing, & protecting the rights of individuals & organizations • A multiplicity of sources • Legislative, executive, & judicial branches of government • Federal government and 50 states • 80,000 local governments

5. Unpack law into statutory, administrative and case law Congress Legislative Mandate Agency Legislation Courts LAW – PUBLIC POLICY

6. Unpack law into statutory, administrative and case law Congress Legislative Mandate Agency Legislation Courts Regulation LAW – PUBLIC POLICY

7. Unpack law into statutory, administrative and case law Congress Legislative Mandate Agency Legislation Courts Regulation LAW – PUBLIC POLICY

8. Unpack law into statutory, administrative and case law Congress Legislative Mandate Agency Legislation Courts Regulation LAW – PUBLIC POLICY

9. Unpack law into statutory, administrative and case law Congress Legislative Mandate Agency Legislation Courts Regulation LAW – PUBLIC POLICY

10. A Decision Made by a Branch of the Federal Government • Legislation, Statute, Act • Legislative History, • Compilation and Codification • Judicial Opinion • Litigation process • Case Law - Accumulated opinions • Rule, Regulation • Rule-making process • Compilation and Codification

11. The Problem • Understanding the process in which individuals inside and outside the federal government debate issues and the outcomes of the process

12. The Problem • Understanding the process in which individuals inside and outside the federal government debate issues and the outcomes of the process • Legislation (act, statute, laws), legislative process, cumulation and codification

13. The Problem • Understanding the process in which individuals inside and outside the federal government debate issues and the outcomes of the process • Legislation (act, statute, laws), legislative process, cumulation and codification • Regulations (rules), rule-making process, cumulation and codification

14. The Problem • Understanding the process in which individuals inside and outside the federal government debate issues and the outcomes of the process • Legislation (act, statute, laws), legislative process, cumulation and codification • Regulations (rules), rule-making process, cumulation and codification • Judicial Opinions, litigation process, court rules, encyclopedias, digests

15. The Problem • Understanding the process in which individuals inside and outside the federal government debate issues and the outcomes of the process • Legislation (act, statute, laws), legislative process, cumulation and codification • Regulations (rules), rule-making process, cumulation and codification • Judicial Opinions, litigation process, court rules, encyclopedias, digests • B. Understanding the databases (books) in which these outcomes, even the debates, are published

16. The Problem • Understanding the process in which individuals inside and outside the federal government debate issues and the outcomes of the process • Legislation (act, statute, laws), legislative process, cumulation and codification • Regulations (rules), rule-making process, cumulation and codification • Judicial Opinions, litigation process, court rules, encyclopedias, digests • B. Understanding the databases (books) in which these outcomes, even the debates, are published • Statutes at Large (Public Law), US Code

17. The Problem • Understanding the process in which individuals inside and outside the federal government debate issues and the outcomes of the process • Legislation (act, statute, laws), legislative process, cumulation and codification • Regulations (rules), rule-making process, cumulation and codification • Judicial Opinions, litigation process, court rules, encyclopedias, digests • B. Understanding the databases (books) in which these outcomes, even the debates, are published • Statutes at Large (Public Law), US Code • Federal Register, Code of Federal Regulations

18. The Problem • Understanding the process in which individuals inside and outside the federal government debate issues and the outcomes of the process • Legislation (act, statute, laws), legislative process, cumulation and codification • Regulations (rules), rule-making process, cumulation and codification • Judicial Opinions, litigation process, court rules, encyclopedias, digests • B. Understanding the databases (books) in which these outcomes, even the debates, are published • Statutes at Large (Public Law), US Code • Federal Register, Code of Federal Regulations • United States Reports, Annotated Codes, Legal Encyclopedias, Digests

19. The Courts and Judicial Opinions (Case Law)

20. Patient Protection and Affordable Care Act (Wikipedia) • In March 2010, the President signed the Patient Protection and Affordable Care Act into law • Pub. L. 111-148, 124 Stat. 119, to be codified in various scattered sections of  26 USC (Internal Revenue Code) and in 42 USC (The Public Health and Welfare) • A number of parties sued, including the attorneys general of 14 states, claiming that the sweeping reform law was unconstitutional for various reasons • The focus concerned the mandate requiring an individual to buy health insurance • The states were also worried about the extent to which the statute imposes a financial burden -- in resources and personnel -- on them • Swanson in the spotlight over health care challenge (MPR March 24, 2010)

21. Patient Protection and Affordable Care Act (Wikipedia) • Florida Attorney General Bill McCollum filed papers in the Northern District of Florida shortly after noon March 23 - attorneys general from South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Michigan, Colorado, Pennsylvania, Washington, Idaho and South Dakota joined Florida • McCollum said he's confident the case will go before the U.S. Supreme Court and that the states will prevail • Virginia filed a separate suit in federal court in Richmond because of a state statute worded specifically to block such a mandate • Some legal experts believe the legislation will initially survive constitutional challenges, because there is a long line of precedent dating back to the New Deal allowing Congress to regulate economic activity

22. Patient Protection and Affordable Care Act (Wikipedia) • District (Trial) Court On January 31, 2011, Judge Roger Vinson ruled that the mandatory health insurance "individual mandate” was outside the power of Congress. He also held that the mandate could not be severed from the rest of the Affordable Care Act and struck down the entire act • Judge Rejects Health Law (Wall Street Journal. February 1, 2011) • Appeals CourtThe Department of Health and Human Services appealed to the 11th Circuit Court of Appeals. A three-judge panel affirmed the lower court’s finding that the individual mandate was unconstitutional but reversed the finding the individual mandate could not be severed, thus leaving the rest of the law intact • Health Overhaul Is Dealt Setback (Wall Street Journal Aug. 13, 2011) • 11th Circuit Strikes Down Health Care Law’s Individual Coverage Provision (American Constitution Society)

23. National Federation of Independent Business v. Sebelius • On November 14, 2011, the Supreme Court granted certiorari to portions of three appeals of the Eleventh Circuit's opinion: one by the states (Florida v. U.S. Dept. of Health and Human Services.), one by the federal government (U.S. Dept. of Health and Human Services. v. Florida); and one by the National Federation of Independent Business (Nat'l Fed. of Independent Business v. Sebelius) • Supreme Court National Federation of Independent Business v. Sebelius 567 U.S. ___(2012) • Filings Patient Protection and Affordable Care Act Cases • A Guide to the Supreme Court’s Affordable Care Act Decision (Kaiser Family Foundation July, 2012)

24. Mille Lacs Case • In 1990, the Mille Lacs Band of Chippewa Indians filed suit against the state of Minnesota in federal district court • The Band asserted that an 1837 treaty with the U.S. government gave them the right to hunt, fish, and gather free of state regulation on land ceded in the treaty • Resources on Minnesota Issues: Indian Hunting and Fishing Rights

25. Mille Lacs Case • On August 24, 1994, after a trial, U.S. District Court Judge Diana Murphy ruled that the Mille Lacs Band did, indeed, continue to possess the hunting, fishing, and gathering rights they were granted in the 1837 treaty • Mille Lacs Band of Chippewa Indians et al. v. State of MN et al., 861 F. Supp. 784 • A second phase of the trial was ordered to determine the band's fish and game allocation and the extent of any state regulation • On Jan. 29, 1997 U.S. District Court Judge Michael Davis ruled, in a summary judgment, that the band's fishing and hunting activities in the twelve-county region were to be regulated by the band's Conservation Code, rather than by the state's fish and game rules • Mille Lacs Band of Chippewa Indians v. Minnesota, 952 F. Supp. 1362

26. Mille Lacs Case •  On August 26, 1997, a three-judge panel of the 8th U.S. Circuit Court of Appeals circuit court upheld the lower court decisions • Mille Lacs Band of Chippewa Indians v. Minnesota, 124 F.3d 904 • Mille Lacs Band of Chippewa Indians v. Minnesota, 124 F.3d 904 (FindLaw) • In November 1997, the 8th U.S. Circuit Court of Appeals denied a request to reconsider the ruling of the three-judge panel 

27. Mille Lacs Case • On June 8, 1998, the Supreme Court agreed to hear an appeal • On March 24, 1999, the U.S. Supreme Court upheld the lower court's rulings • Minnesota v Mille Lacs Band of Chippewa Indians 526 US 172 • Minnesota v Mille Lacs Band of Chippewa Indians (Legal Information Institute) • In a  5-4 vote the Court said that the Mille Lacs Band of Chippewa retained the hunting and fishing rights guaranteed to them under the 1837 treaty • There were two written dissents from members of the minority • This opinion has been cited in some 100 decisions, and 85 briefs in various federal and state jurisdictions, and 230 periodical articles

28. Tobacco Master Settlement Agreement (Wikipedia) • entered in November 1998, originally between the four largest United States tobacco companies (Philip Morris Inc., R. J. Reynolds, Brown & Williamson and Lorillard – the original participating manufacturers) and the attorneys general of 46 states • states settled their Medicaid lawsuits against the tobacco industry to recover their tobacco-related health-care costs, and also exempted the companies from private tort liability regarding harm caused by tobacco use • the companies agreed to curtail or cease certain tobacco marketing practices, as well as to pay, in perpetuity, various annual payments to the states to compensate them for some of the medical costs of caring for persons with smoking-related illnesses - a minimum of $206 billion over the first twenty-five years of the agreement • Master Settlement Agreement • Tobacco Settlement Agreements (Phillip Morris USA) • Tobacco Settlement Resources (Tobacco.org)

29. Smoking • U.S. Supreme Court Cases 1830-2008 citing “cigarettes,” “smoking,” or “tobacco” • Tobacco Litigation: History & Recent Developments (NOLO Law for all) • The “Global Settlement” With the Tobacco Industry: 6 Years Later (NIH) • The 1998 State Tobacco Settlement 14 Years Later (Tobaccofreekids.org Dec. 6, 2012) • Is smoking in public park a constitutional right? Supreme Court refuses case (Christian Science Monitor May 13, 2013) • U.S. Supreme Court Decision on Tobacco Case Could Help Smokers’ Lawsuits (Drugfree.org Oct.9, 2013)

30. Regulating Carbon Dioxide (Wikipedia) • Massachusetts et al v Environmental Protection Agency et al (127 S. Ct. 1438, 549 US 497) • Massachusetts et al v Environmental Protection Agency et al (Google Scholar) • Massachusetts et al v Environmental Protection Agency et al (Oyez.org) • Massachusetts et al v Environmental Protection Agency et al (Legal Information Institute • Massachusetts et al v Environmental Protection Agency et al (LexisNexis Academic) • Massachusetts v. EPA: From Politics to Expertise (Harvard Law School) • EPA Set to Move Toward Carbon-Dioxide Regulation (Wall Street Journal Feb. 23, 2009)

31. Regulating Carbon Dioxide (National Journal May 2, 2013) • On December 7, 2009, EPA under Section 202(a) of the Clean Air Act, found that six greenhouse gases constitute a threat to public health and welfare, and that the combined emissions from motor vehicles cause and contribute to climate change • Court Backs E.P.A. Over Emissions Limits Intended to Reduce Global Warming (New York Times June 26, 2012) • Carbon Pollution Standards (EPA) • Summary of EPA's efforts to reduce carbon pollution (Hearings, House June 29, 2012) • Proposed regulations for new power plants (EPA) • Supreme Court allows EPA to keep regulating carbon — but will review a few details (Washington Post Oct. 15, 2013) • Supreme Court to review EPA rules on curbing global warming gases from factories, power plants (Star Tribune Oct. 15, 2013)

32. The Nature of Judicial Opinions • The outcome of a process – litigation – in which lawyers representing the plaintiff (the party bringing the complaint – filing the suit) and the defendant • present facts in the case • present arguments that try to get the judge to see these facts through the opinions previously made by other judges in other jurisdictions – argument by analogy – the principle of precedence – “a dialogue between the past and the present.” • ask for a particular remedy • Not about “fairness” – the opinion of the process represents “justice” – the outcome of a process – you may not agree with it

33. Not everyone has access to the courts • Financial considerations – costs money to hire an attorney • Standing • Remedy must be within the court’s power • The process is governed by rules • Rules of the Supreme Court • Rules of the Eighth Circuit • Rules of the District Court Minnesota

34. Key Databases • ProQuest Congressional The United States Code Service published by Matthew Bender - unofficial • an annotated version of the U.S. Code that arranges the current public laws of the United States by subject titles • the compilation and codification by subject matter of the general and permanent laws of the U.S. • Needs citation • LexisNexis Academic The United States Code Service published by Matthew Bender • browse feature • <boundary waters canoe wilderness area>

35. The “Legal” (Public Policy) Process • Substantive law – the rules that govern behavior – statutes and rules • Procedural law • the process through which the statutes and rules are made • the process through which we determine whether the substantive law has been broken – administrative review, judicial review • Remedial law – the consequences of breaking either substantive or procedural

36. Some Introductory Materials • Supreme Court of the United States • US Court of Appeals for the Eighth Circuit • US District Court. District of Minnesota • Court Links • Administrative Office of the US Courts • Public Access to Court Electronic Records (PACER) • FindLaw : Cases and Codes : Introductory Materials (Thomson Reuters) • Legal Information Institute (Cornell University) • Internet Legal Research Group • HG.org • LLRX.com

37. Some Introductory Materials • United States federal courts (Wikipedia) • How the U.S. court system works (Lawyerintl.com) • How to find a court case (University of California Santa Cruz) • Legal citation (Cornell University) • Bench and Bar of Minnesota (Minnesota State Bar Association)

38. The Private Nature of Case Law Publications • Debate rages over who owns the law (Star Tribune 1995) • Who Owns the Law? (Wired nd) • Who Owns The Law? (Fastcase video) – note the comments on page numbers!! • Who Owns the Law? Arguments May Ensue (New York Times Sept. 28, 2008)

39. Official The United States Supreme Court 8th Circuit US Court of Appeals U.S. District Court, District of Minnesota Unofficial FindLaw (Thomson Reuters) Westlaw Federal Law Collection (Cornell University) Oyez – Supreme Court only (Chicago-Kent College of Law) LexisNexis Academic <US Legal> Published Federal Court Opinions

40. The Published Findings of the Federal Courts • The outcome of a structure and a process • Represents a dialogue between the past and the present • Provide answers to some of society’s most compelling questions • These answers may be long-lived or temporary

41. There is a practical beginning to a particular dispute that a court is asked to resolve – when a party files suit • There are practical ends, when a judge issues an opinion from which an appeal is not, or in some instances cannot, be made • We should never forget that any dispute has multiple origins and that any resolution ruling against one party, in a society which values personal freedoms and due process, invites the aggrieved party to work toward changing the outcome • The debate over terminating pregnancy, for example • 1973. Roe v Wade (Cornell University)

42. Project 4 • A. Describe a federal judicial decision that has interpreted either the statute or the regulation you chose • What court was involved? • What were the facts? • What were the arguments? [Remember you are not lawyers] • What was the outcome? • B. What were the consequences of the case? Use secondary sources • C. What is the current case law on your topic? Use either an encyclopedia or the US Code Service which is an annotated Code (ProQuest Congressional)

43. The Outcome of Litigation – the Published Opinion

44. On October 14, 2003 the United States Supreme Court granted certiorari - agreed to hear - the following case • Elk Grove Unified School District and David W. Gordon  v. Michael A. Newdow, et al. • Supreme Court Collection (Cornell University) • Findlaw (Thomson Reuters) • Oyez • The case will be limited to two questions • Whether respondent (Newdow) has standing to challenge the constitutionality of a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance • 2. Whether a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words "under God," violates the Establishment Clause of the First Amendment, as applicable through the Fourteenth Amendment

45. Justice Scalia took no part in the consideration or decision of these motions and this petition • The case was decided June 14, 2004  • The court reversed the Ninth Circuit Appeals Court opinion  • which had reversed the United States District Court for the eastern District of California (trial court) • which had dismissed Newdow's complaint against the School Board

46. The Main Players • Department of Justice • The Federal Judicial Branch (USA.gov) • Judicial Branch Resources (Fdsys) • Administrative Office of the U.S. Courts – the central support entity for the judicial branch providing a wide range of administrative, legal, financial, management, program, and information technology services to the federal courts • Federal Judicial Center – the education and research agency for the federal courts

47. Court Structure • Federal Constitution Article III Section 1 • The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish • The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office

48. The Judicial Power shall extend • to all cases ... arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority • to all cases affecting ambassadors, other public ministers and consuls • to all cases of admiralty and maritime jurisdiction • to controversies to which the United States shall be a party • to controversies between two or more states, between a state and citizens of another state, between citizens of different states, between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects

49. Supreme Court • In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction • In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make

50. United States District Courts • Map • The trial courts in which justices have jurisdiction to hear nearly all categories of federal cases, including both civil and criminal matters • Currently, there are 94 such districts, including at least one district in each state, the District of Columbia and Puerto Rico • Three territories of the United States -- the Virgin Islands, Guam, and the Northern Mariana Islands -- have federal district courts