Constitutional Law
A Very Texas Term at the Supreme Court
Examining the decisions affecting the Lone Star State.
By Josh Blackman
Everything is bigger in Texas, including its share of the spotlight at the U.S. Supreme Court. Of the 69 cases decided during the October 2015 term, five involved the Lone Star State. As has become common in recent years, Texas and the high court continue to hold different opinions about the proper bounds of constitutional law and judicial review.
Affirmative Action
Fisher v. University of Texas at Austin, on its second trip
to the high court, is what we refer to as a SCOTUS repeater. In 2008,
Abigail Fisher of Sugar Land first challenged the constitutionality of
UT’s affirmative action policy, arguing that she had been denied
admission to the school because of her race. A district court and the
5th Circuit Court of Appeals upheld the policy.
In 2013, the Supreme Court reversed by a 7-1 vote (Justice Elena Kagan
recused). Justice Anthony Kennedy, writing for the majority, rebuked the
appeals court for not carefully considering UT’s use of race, or in his
parlance, the court failed to apply strict scrutiny. On remand, the 5th
Circuit once again upheld UT’s policy in an opinion that seemed at odds
with Kennedy’s admonition. In 2015, the Supreme Court granted certiorari
a second time.
The court departed from its 2013 decision, and upheld the university’s
policy. The 4-3 decision, without the votes of Justices Antonin Scalia
and Kagan, held that the justifications for UT’s affirmative action plan
were narrowly tailored to promote the benefits that flow from having
diversity in the classroom.
After eight years—Fisher has since graduated from Louisiana State
University—the case finally dripped to an anticlimactic conclusion. But
this is not the end of challenges to affirmative action. The same
organization that backed Fisher’s challenge, the Project on Fair
Representation, filed cases that are pending against Harvard Law School
and the University of North Carolina at Chapel Hill. These appeals may
trickle up to the Supreme Court next term.
Immigration
With more than two dozen lawsuits filed against the federal government
during Gov. Greg Abbott’s tenure as Texas attorney general, perhaps none
was more significant than United States v. Texas.
In December 2014, Texas—on behalf of more than two dozen other
states—challenged the legality of President Barack Obama’s executive
action on immigration, known as Deferred Action for Parents of Americans
and Lawful Permanent Residents. DAPA would have shielded from
deportation roughly 4 million undocumented immigrants who have children
who are U.S. citizens or permanent residents and provided them with work
authorization. Texas asserted that the policy was inconsistent with
federal immigration statutes and violated the president’s duty to take
care that the laws are faithfully executed.
In February 2015, Judge Andrew S. Hanen of the U.S. District Court for
the Southern District of Texas, sitting in Brownsville, entered a
preliminary injunction halting DAPA. Nine months later, the 5th Circuit
affirmed. The U.S. solicitor general quickly petitioned for certiorari,
and the Supreme Court heard the case in April 2016. Ultimately, the
justices split 4-4, upholding the 5th Circuit’s judgment.
The Supreme Court only considered whether the preliminary injunction was
validly issued. At some point in the future, a full court will have to
decide the legality of the underlying policy.
Districting
Evenwel v. Abbott is a rare case where Texas and the Obama
administration are on the same side of the petition. In 1964, the
Supreme Court announced that districting must be performed according to
the “one person, one vote” principle.
But Chief Justice Earl Warren’s majority opinion in Reynolds v.
Sims did not define which people should count for purposes
of districting. Texas, like virtually all other states, uses the total
population numbers for the census when drawing legislative districts,
which includes people who cannot vote, such as minors, noncitizens, and
prisoners.
Sue Evenwel of Titus County challenged this districting plan, claiming
that only voting-age citizens should be counted. Because Texas counted
people who lacked the franchise, Evenwel argued that her vote was
diluted. Texas defended its plan, arguing that it could consider total
population but was not required to. The federal government argued that
states were required to consider total population. In a unanimous
decision for the court, Justice Ruth Bader Ginsburg wrote that a state
“may draw its legislative districts based on total population.”
However, she stopped short of holding that states were prohibited from
considering other metrics. As a result, this issue may come back to the
court if a state or municipality limits districting to citizens or the
voting-age population.
Abortion
One of the most significant constitutional decisions this term was
Whole Woman’s Health v. Hellerstedt. This case arose from Texas
House Bill 2, a law related to abortion procedures, providers, and
facilities, made famous by then-Senator Wendy Davis’ pink-sneakered
filibuster. Two provisions of the law were challenged: a requirement
that physicians hold “admitting privileges” to a nearby hospital and a
mandate that abortion facilities meet “minimum standards ... for
ambulatory surgical centers.”
Justice Stephen Breyer, writing for five members of the court,
invalidated HB 2 in its entirety, finding that the law imposed an “undue
burden” on a woman’s access to obtaining an abortion. The court rejected
all of Texas’ arguments that the law was supported by concerns for the
health of the mother.
Justice Ginsburg went a step further in her concurring opinion,
stating that “it is beyond rational belief that H.B. 2 could genuinely
protect the health of women, and certain that the law ‘would simply make
it more difficult for them to obtain abortions.’ ” Justice Clarence
Thomas’ dissenting opinion stated that the court has a “habit of
applying different rules to different constitutional rights—especially
the putative right to abortion.”
This is the court’s most significant decision on abortion since
Planned Parenthood v. Casey in 1991.
The Patient Protection and Affordable Care Act
Zubik v. Burwell did not involve the state government but
instead concerned a religious college in the East Texas town of
Marshall. The Obama administration has interpreted the Affordable Care
Act to require all large employers (with 50 or more full-time workers)
to pay for all federally approved contraceptives.
The statute is silent about religious accommodations. As a result, the
executive branch has proposed a series of exemptions and accommodations
for religious groups. Initially, the government contended that
religiously organized for-profit corporations, such as Hobby Lobby
Stores, had to pay for contraceptives. However, the Supreme Court held
in 2014 that such a requirement would violate the Religious Freedom
Restoration Act of 1993.
Churches and houses of worship were exempted from the mandate
entirely, but religious nonprofits such as the Little Sisters of the
Poor and East Texas Baptist University were only accommodated. The
organizations were not required to pay for the contraceptives, but
insurers would use the nonprofit’s plan to provide the coverage. A
district court and the 5th Circuit ruled against ETBU, and the case was
appealed to the Supreme Court in a group of similar cases.
In a unanimous decision, the eight justices remanded the cases back to
their respective appeals courts with the instructions to “arrive at an
approach going forward that accommodates petitioners’ religious exercise
while at the same time ensuring that women covered by petitioners’
health plans ‘receive full and equal health coverage, including
contraceptive coverage.’ ” A compromise looks
unlikely.TBJ
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JOSH BLACKMAN is a constitutional law professor at the Houston College of Law and the author of Unraveled: Obamacare, Religious Liberty, and Executive Power. |
