boutons_deux
10-03-2017, 02:52 PM
10 Upcoming Supreme Court Cases That Could Harm Our Democracy
Voting Rights
1. Gill v. Whitford: Constitutionality of Partisan Gerrymandering
This case has the potential to help make Congress and state legislatures more democratic by ensuring that legislatures fairly allow voters to choose their representatives. Or, alternatively, it could make it even easier for representatives to effectively choose their voters, essentially guaranteeing that the majority party cannot be removed from power absent an enormous wave election.
The Constitution mandates decennial reapportionment and redistricting of congressional and state legislative districts to reflect population shifts. Legislatures consider factors like compactness, the principle of one-person-one-vote, geographic boundaries, county and city lines, and communities of interest in making these decisions. Unfortunately, they too often consider partisan politics: How can the party in power follow traditional redistricting principles in a way that maximizes the seats they win in each election?
Two common methods are “cracking” and “packing.” The party drawing the lines can “crack” their opponent’s supporters among many districts, where their preferred candidates tend to lose by small margins. With “packing,” lines are redrawn so that the out-of-power party’s supporters are “packed” into just a very small number of districts, where their preferred candidates win overwhelmingly.
With advances in computer technology and data collection, parties have been able to make very specific, house-by-house predictions of how people will vote and how lines can be drawn to maximize partisan advantage. That makes cracking and packing schemes far more effective, and thus far more destructive to the democratic process.
As recently as 2015, the Court made clear that partisan gerrymanders are “incompatible with democratic principles.” But the Court has never identified a specific unconstitutional partisan gerrymander. In the past, the four most conservative justices (then including Antonin Scalia) have written that the courts should stay out of the issue altogether, while the four more progressive justices have disagreed. Justice Anthony Kennedy has always agreed with the conservatives that the particular redistricting plan before them should not be struck down, but he has always been with the moderates in stating that in principle, the federal courts could get involved in the issue if there were some “judicially discernible and manageable standard” available to identify and measure the impact of partisanship in redistricting.
That may be exactly what we have in Wisconsin, where Republicans controlled redistricting after their victories in the 2010 election. Voters shut out of power by the state’s partisan gerrymander presented a new neutral statistical standard (called the “efficiency gap”) to a three-judge district court panel. The standard analyzes actual election results rather than conjecture, and it measures “wasted” votes. Votes for winners beyond the 50 percent mark are considered wasted, as are all votes cast for the losing candidates.
To determine the “efficiency gap,” take one party’s wasted votes in an election, subtract the other party’s wasted votes, then divide by the total number of votes cast. The result indicates whether and by how much district lines pack or crack one party’s voters more than the other’s. (The Brennan Center’s How the Efficiency Gap Works (https://www.brennancenter.org/sites/default/files/legal-work/How_the_Efficiency_Gap_Standard_Works.pdf) is a useful resource explaining in detail how this statistical analysis works.)
The lower court agreed that this was exactly the type of neutral standard that the Supreme Court was looking for, and it struck down the state redistricting plan as an unconstitutional partisan gerrymander. It also ordered the state to come up with new maps.
However, last June, the Supreme Court, in a 5-4 vote, granted Wisconsin’s petition to put the lower court’s order on hold until the justices could resolve the case on appeal, with Kennedy and the arch-conservatives in the majority. That may foretell how the Court will rule on the actual appeal, but not necessarily. If at least five justices find that the “efficiency gap” model presents courts with a “judicially discernible and manageable standard,” then it could be a major step in moderating one of the most pernicious threats our democracy faces.
Oral arguments are scheduled for October 3.
2. Husted v. A. Philip Randolph Institute: Stripping Voters from Voter Rolls
Voter suppression comes in many forms, and one of the most common ones is removing eligible voters from the rolls if they have not voted recently. Recognizing how this method of updating voter rolls was being abused to disenfranchise people, Congress took measures to protect voters in the National Voter Registration Act of 1993 (NVRA, or “Motor-Voter”) as modified by the Help America Vote Act. The Motor-Voter law prohibits roll maintenance processes that result in striking people from the voter rolls by reason of their not voting in past elections.
Ohio has two systems to update its rolls to account for voters moving away. The first relies on the post office’s change-of-address data and is not at issue in this case. The second—which this case is about—is called the “Supplemental Process:” Election boards throughout the state identify registrants who have not voted in two years, then send them confirmation notices to see if they still live at their registered addresses. If the registered voter doesn’t respond or vote within the next four years, their name will be purged. Ohio deployed this program every two years from 1994-2014, at which point Secretary of State Husted made it annual.
Husted is being sued by the A. Philip Randolph Institute, the Northeast Ohio Coalition for the Homeless and Larry Harmon, a citizen of Ohio who was removed under Ohio’s program. Harmon voted in 2008 and chose not to vote in 2009 or 2010. Records show he was sent a confirmation notice in 2011, but he does not recall ever seeing it. He did not like any of the candidates running in 2012 or 2014, so he again chose not to vote. Under the rules of the “Supplemental Process,” his name was dropped from the voter rolls in September 2015. Harmon did not learn of this until the November election, when he discovered he was not registered, and that his vote would not be counted.
PFAW Foundation has joined an amicus brief in the case authored by Asian Americans Advancing Justice (https://www.scotusblog.com/wp-content/uploads/2017/09/16-980-bsac-Asian-Americans-Advancing-Justice-et-al.pdf)that notes the impact on Latino and Asian Americans in particular:
Asian American and Latino registrants vote at lower rates than the rest of the U.S. population. Because of their lower voting rates, Asian Americans and Latinos are more likely to be subject to Ohio’s Supplemental Process and purged from the registration lists than any other racial group. Asian Americans and Latinos already encounter a number of barriers to voting. For one, a large percentage of the U.S. population is comprised of Asian Americans and Latinos for whom English is not their first language and who may not be fluent in English. As a result, English-only election-related mailings create a barrier to access and comprehension which disenfranchises limited English proficient (LEP) voters, many of whom are Asian American and/or Latino.
Because the disenfranchisement process is set in motion by only one thing—a citizen’s not voting—the Sixth Circuit Court of Appeals struck the process down as violating the Motor-Voter law. The court determined that Ohio can use the confirmation-notice method to confirm information it has already received that a voter may have moved. But it may not use the lack of voting as a trigger for that.
At one time, this was also the position of the Department of Justice. However, after Jeff Sessions became attorney general, the administration switched sides. The Justice Department has submitted an amicus brief to the Supreme Court in support of Husted and Ohio’s voter purge system.
Oral arguments are scheduled for November 8.
Workers’ Rights / Corporate Power / Arbitration
3. Janus v. AFSCME: De-Funding Public Sector Unions
In this case, well-funded anti-worker organizations are continuing their assault on public sector unions, one that was put on hold when Justice Scalia passed away. Anti-labor advocates are again asking the Court to overrule an important 1977 case on the rights of working people (Abood v. Detroit Board of Education) by striking down requirements that public sector employees who are not members of the unions that are required by law to represent them pay “fair share” fees to cover the costs of that representation. Justice Alito has authored two opinions (Knox v. SEIU (https://blog.pfaw.org/content/court-s-conservatives-join-right-wing-attack-unions) and Harris v. Quinn (https://blog.pfaw.org/content/alito-leads-latest-attack-unions)) criticizing the reasoning of the 1977 Aboodprecedent and, in the latter case, essentially invited conservative activists to generate a case to give the Court an opportunity to overrule it and severely weaken workers’ ability to come together, form a union, and effectively negotiate their working conditions and benefits. Friedrichs v. California Teachers Associationwas that case, but Justice Scalia’s death led to a 4-4 tie with no precedential value.
This time, their tool is Janus v. AFSCME, a case originating in Illinois. The trial court and the Seventh Circuit followed Abood, since they have no authority to do otherwise. In fact, that is part of the conservatives’ strategy. Since the lower courts’ hands are tied, they don’t have any reason or authority to hold a trial and develop any kind of detailed factual record on how fair share fees work in practice and how they impact non-union workers’ rights, if at all.
So now the case is at the Supreme Court, with at least four of the conservatives apparently once again primed to overrule Abood without allowing any factual record to be developed that might contradict the assertions they plan to use to justify their action. Another four justices would uphold Abood.
If none of them has changed their mind, then Justice Gorsuch will be the fifth vote in a 5-4 ruling. Although we will never know how a Justice Garland would have ruled, we will learn before the end of the term whether Trump’s justice will fulfill the expectations of his supporters, who spent millions of dollars blocking Garland and promoting Gorsuch. The answer will have an enormous impact on working people.
Oral arguments have not yet been scheduled.
4. Epic Systems Corp. v. Lewis (consolidated with NLRB v. Murphy Oil and Ernst & Young v. Morris): Arbitration Agreements to Strip Workers of Their Rights
Justice Gorsuch’s presence could tip the scales on three important labor cases next term, consolidated asEpic Systems Corp. v. Lewis. This could extend the conservatives’ work in a series of 5-4 rulings that have empowered large corporations to use arbitration agreements (https://www.pfaw.org/blog-posts/eliminating-courts-eliminating-justice/) to prevent consumers (https://www.pfaw.org/blog-posts/the-corporate-court-strikes-again-by-5-4-supreme-court-undermines-class-action-consumer-protection-suits/) and businesses (https://www.pfaw.org/blog-posts/corporate-court-lets-monopolists-bypass-antitrust-laws/) they harm from filing class actions against them. Class actions are often the most effective (and sometimes theonly effective) means of holding companies accountable when they violate rights.
Corporate interests are now seeking to expand this tactic to labor contracts. The National Labor Relations Act specifically gives employees the right to engage in “concerted activities” for “mutual aid or protection.” This is an essential right that reduces the inequality of bargaining power between employer and employee (or job applicant). Although Congress has specifically guaranteed this right, employers are frequently requiring their employees to sign that right away as a condition of employment, exactly what the NLRA was enacted to prevent. They do this through employment agreements requiring employees to resolve conflicts with the employer through one-on-one arbitration. In these cases, the companies are asking the Court to uphold those employment agreements, even though they prevent workers from exercising their statutory rights under the National Labor Relations Act.
The position of the National Labor Relations Board (NLRB) is that arbitration agreements cannot nullify employees’ right to engage in concerted activities for mutual aid or protection. The Board will be arguing this position before the Supreme Court, but in a rare development, it will be opposed by another part of the U.S. government: the Justice Department. DoJ had sided with the NLRB and employees, but that changed when Trump became president. Under Jeff Sessions, the Justice Department switched sides (as it did in the Ohio voting rights case) and now supports the companies.
Previous arbitration cases stripping consumers and others of their legal rights have usually been decided 5-4, with the conservatives in the majority. Justice Scalia had been a reliable fifth vote in such arbitration cases, and Gorsuch’s business-friendly record suggests he will be, as well.
Oral arguments are scheduled for October 2, the first day of the new term.
5. Digital Realty Trust v. Somers: Protection for Whistleblowers of Potential Securities Law Violations
This case addresses whether the whistleblower protection provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 apply to an employee who reports potential illegalities internally, but not to the Securities and Exchange Commission. Dodd-Frank specifically defines “whistleblower” as someone who provides information to the SEC.
In this case, Paul Somers, a vice president at Digital Realty Trust, reported potential violations of securities law within the company to senior management. He was then fired by the company, before he could report the suspected violations to the SEC. Somers sought whistleblower protection under Dodd-Frank, but Digital Realty argues that the law’s definition of the term does not include Somers, because he did not report his suspicions to the SEC.
The Ninth Circuit ruled that Dodd-Frank protects internal whistleblowers even if they have not yet reported to the SEC. The statute protects whistleblowers who give information to the Commission, who aid an investigation, or who “mak[e] disclosures that are required or protected under the Sarbanes-Oxley Act of 2002 … and any other law, rule, or regulation subject to the jurisdiction of the Commission.” Sarbanes-Oxley specifically protects internal whistleblowers but prohibits them from reporting to the SEC unless they have already reported the problem internally.
The lower court ruled that the Dodd-Frank whistleblower provision broadly incorporates the disclosure requirements and protections of Sarbanes-Oxley, which include internal whistleblowers. Dodd-Frank would not work otherwise. If it were limited to those who report potential legal violations to the SEC, then internal whistleblowers would be fired upon reporting the misconduct to their company, before they could ever report to the SEC.
The Ninth Circuit noted the similarity to King v. Burwell, the attack against the Affordable Care Act seeking to limit insurance subsidies to states that set up their own exchanges. In that case, the Court looked at congressional intent and the structure of the ACA as a whole, and it reached the obvious conclusion that Congress did not mean to deny subsidies to Americans in the federal-exchange states. Noting King’s observation that terms can have different operative consequences in different contexts, the lower court ruled that strict application of Dodd-Frank’s definition of “whistleblower” would all but read the reference to Sarbanes-Oxley out of the statute, an absurd result.
Oral arguments have not yet been scheduled.
....
Voting Rights
1. Gill v. Whitford: Constitutionality of Partisan Gerrymandering
This case has the potential to help make Congress and state legislatures more democratic by ensuring that legislatures fairly allow voters to choose their representatives. Or, alternatively, it could make it even easier for representatives to effectively choose their voters, essentially guaranteeing that the majority party cannot be removed from power absent an enormous wave election.
The Constitution mandates decennial reapportionment and redistricting of congressional and state legislative districts to reflect population shifts. Legislatures consider factors like compactness, the principle of one-person-one-vote, geographic boundaries, county and city lines, and communities of interest in making these decisions. Unfortunately, they too often consider partisan politics: How can the party in power follow traditional redistricting principles in a way that maximizes the seats they win in each election?
Two common methods are “cracking” and “packing.” The party drawing the lines can “crack” their opponent’s supporters among many districts, where their preferred candidates tend to lose by small margins. With “packing,” lines are redrawn so that the out-of-power party’s supporters are “packed” into just a very small number of districts, where their preferred candidates win overwhelmingly.
With advances in computer technology and data collection, parties have been able to make very specific, house-by-house predictions of how people will vote and how lines can be drawn to maximize partisan advantage. That makes cracking and packing schemes far more effective, and thus far more destructive to the democratic process.
As recently as 2015, the Court made clear that partisan gerrymanders are “incompatible with democratic principles.” But the Court has never identified a specific unconstitutional partisan gerrymander. In the past, the four most conservative justices (then including Antonin Scalia) have written that the courts should stay out of the issue altogether, while the four more progressive justices have disagreed. Justice Anthony Kennedy has always agreed with the conservatives that the particular redistricting plan before them should not be struck down, but he has always been with the moderates in stating that in principle, the federal courts could get involved in the issue if there were some “judicially discernible and manageable standard” available to identify and measure the impact of partisanship in redistricting.
That may be exactly what we have in Wisconsin, where Republicans controlled redistricting after their victories in the 2010 election. Voters shut out of power by the state’s partisan gerrymander presented a new neutral statistical standard (called the “efficiency gap”) to a three-judge district court panel. The standard analyzes actual election results rather than conjecture, and it measures “wasted” votes. Votes for winners beyond the 50 percent mark are considered wasted, as are all votes cast for the losing candidates.
To determine the “efficiency gap,” take one party’s wasted votes in an election, subtract the other party’s wasted votes, then divide by the total number of votes cast. The result indicates whether and by how much district lines pack or crack one party’s voters more than the other’s. (The Brennan Center’s How the Efficiency Gap Works (https://www.brennancenter.org/sites/default/files/legal-work/How_the_Efficiency_Gap_Standard_Works.pdf) is a useful resource explaining in detail how this statistical analysis works.)
The lower court agreed that this was exactly the type of neutral standard that the Supreme Court was looking for, and it struck down the state redistricting plan as an unconstitutional partisan gerrymander. It also ordered the state to come up with new maps.
However, last June, the Supreme Court, in a 5-4 vote, granted Wisconsin’s petition to put the lower court’s order on hold until the justices could resolve the case on appeal, with Kennedy and the arch-conservatives in the majority. That may foretell how the Court will rule on the actual appeal, but not necessarily. If at least five justices find that the “efficiency gap” model presents courts with a “judicially discernible and manageable standard,” then it could be a major step in moderating one of the most pernicious threats our democracy faces.
Oral arguments are scheduled for October 3.
2. Husted v. A. Philip Randolph Institute: Stripping Voters from Voter Rolls
Voter suppression comes in many forms, and one of the most common ones is removing eligible voters from the rolls if they have not voted recently. Recognizing how this method of updating voter rolls was being abused to disenfranchise people, Congress took measures to protect voters in the National Voter Registration Act of 1993 (NVRA, or “Motor-Voter”) as modified by the Help America Vote Act. The Motor-Voter law prohibits roll maintenance processes that result in striking people from the voter rolls by reason of their not voting in past elections.
Ohio has two systems to update its rolls to account for voters moving away. The first relies on the post office’s change-of-address data and is not at issue in this case. The second—which this case is about—is called the “Supplemental Process:” Election boards throughout the state identify registrants who have not voted in two years, then send them confirmation notices to see if they still live at their registered addresses. If the registered voter doesn’t respond or vote within the next four years, their name will be purged. Ohio deployed this program every two years from 1994-2014, at which point Secretary of State Husted made it annual.
Husted is being sued by the A. Philip Randolph Institute, the Northeast Ohio Coalition for the Homeless and Larry Harmon, a citizen of Ohio who was removed under Ohio’s program. Harmon voted in 2008 and chose not to vote in 2009 or 2010. Records show he was sent a confirmation notice in 2011, but he does not recall ever seeing it. He did not like any of the candidates running in 2012 or 2014, so he again chose not to vote. Under the rules of the “Supplemental Process,” his name was dropped from the voter rolls in September 2015. Harmon did not learn of this until the November election, when he discovered he was not registered, and that his vote would not be counted.
PFAW Foundation has joined an amicus brief in the case authored by Asian Americans Advancing Justice (https://www.scotusblog.com/wp-content/uploads/2017/09/16-980-bsac-Asian-Americans-Advancing-Justice-et-al.pdf)that notes the impact on Latino and Asian Americans in particular:
Asian American and Latino registrants vote at lower rates than the rest of the U.S. population. Because of their lower voting rates, Asian Americans and Latinos are more likely to be subject to Ohio’s Supplemental Process and purged from the registration lists than any other racial group. Asian Americans and Latinos already encounter a number of barriers to voting. For one, a large percentage of the U.S. population is comprised of Asian Americans and Latinos for whom English is not their first language and who may not be fluent in English. As a result, English-only election-related mailings create a barrier to access and comprehension which disenfranchises limited English proficient (LEP) voters, many of whom are Asian American and/or Latino.
Because the disenfranchisement process is set in motion by only one thing—a citizen’s not voting—the Sixth Circuit Court of Appeals struck the process down as violating the Motor-Voter law. The court determined that Ohio can use the confirmation-notice method to confirm information it has already received that a voter may have moved. But it may not use the lack of voting as a trigger for that.
At one time, this was also the position of the Department of Justice. However, after Jeff Sessions became attorney general, the administration switched sides. The Justice Department has submitted an amicus brief to the Supreme Court in support of Husted and Ohio’s voter purge system.
Oral arguments are scheduled for November 8.
Workers’ Rights / Corporate Power / Arbitration
3. Janus v. AFSCME: De-Funding Public Sector Unions
In this case, well-funded anti-worker organizations are continuing their assault on public sector unions, one that was put on hold when Justice Scalia passed away. Anti-labor advocates are again asking the Court to overrule an important 1977 case on the rights of working people (Abood v. Detroit Board of Education) by striking down requirements that public sector employees who are not members of the unions that are required by law to represent them pay “fair share” fees to cover the costs of that representation. Justice Alito has authored two opinions (Knox v. SEIU (https://blog.pfaw.org/content/court-s-conservatives-join-right-wing-attack-unions) and Harris v. Quinn (https://blog.pfaw.org/content/alito-leads-latest-attack-unions)) criticizing the reasoning of the 1977 Aboodprecedent and, in the latter case, essentially invited conservative activists to generate a case to give the Court an opportunity to overrule it and severely weaken workers’ ability to come together, form a union, and effectively negotiate their working conditions and benefits. Friedrichs v. California Teachers Associationwas that case, but Justice Scalia’s death led to a 4-4 tie with no precedential value.
This time, their tool is Janus v. AFSCME, a case originating in Illinois. The trial court and the Seventh Circuit followed Abood, since they have no authority to do otherwise. In fact, that is part of the conservatives’ strategy. Since the lower courts’ hands are tied, they don’t have any reason or authority to hold a trial and develop any kind of detailed factual record on how fair share fees work in practice and how they impact non-union workers’ rights, if at all.
So now the case is at the Supreme Court, with at least four of the conservatives apparently once again primed to overrule Abood without allowing any factual record to be developed that might contradict the assertions they plan to use to justify their action. Another four justices would uphold Abood.
If none of them has changed their mind, then Justice Gorsuch will be the fifth vote in a 5-4 ruling. Although we will never know how a Justice Garland would have ruled, we will learn before the end of the term whether Trump’s justice will fulfill the expectations of his supporters, who spent millions of dollars blocking Garland and promoting Gorsuch. The answer will have an enormous impact on working people.
Oral arguments have not yet been scheduled.
4. Epic Systems Corp. v. Lewis (consolidated with NLRB v. Murphy Oil and Ernst & Young v. Morris): Arbitration Agreements to Strip Workers of Their Rights
Justice Gorsuch’s presence could tip the scales on three important labor cases next term, consolidated asEpic Systems Corp. v. Lewis. This could extend the conservatives’ work in a series of 5-4 rulings that have empowered large corporations to use arbitration agreements (https://www.pfaw.org/blog-posts/eliminating-courts-eliminating-justice/) to prevent consumers (https://www.pfaw.org/blog-posts/the-corporate-court-strikes-again-by-5-4-supreme-court-undermines-class-action-consumer-protection-suits/) and businesses (https://www.pfaw.org/blog-posts/corporate-court-lets-monopolists-bypass-antitrust-laws/) they harm from filing class actions against them. Class actions are often the most effective (and sometimes theonly effective) means of holding companies accountable when they violate rights.
Corporate interests are now seeking to expand this tactic to labor contracts. The National Labor Relations Act specifically gives employees the right to engage in “concerted activities” for “mutual aid or protection.” This is an essential right that reduces the inequality of bargaining power between employer and employee (or job applicant). Although Congress has specifically guaranteed this right, employers are frequently requiring their employees to sign that right away as a condition of employment, exactly what the NLRA was enacted to prevent. They do this through employment agreements requiring employees to resolve conflicts with the employer through one-on-one arbitration. In these cases, the companies are asking the Court to uphold those employment agreements, even though they prevent workers from exercising their statutory rights under the National Labor Relations Act.
The position of the National Labor Relations Board (NLRB) is that arbitration agreements cannot nullify employees’ right to engage in concerted activities for mutual aid or protection. The Board will be arguing this position before the Supreme Court, but in a rare development, it will be opposed by another part of the U.S. government: the Justice Department. DoJ had sided with the NLRB and employees, but that changed when Trump became president. Under Jeff Sessions, the Justice Department switched sides (as it did in the Ohio voting rights case) and now supports the companies.
Previous arbitration cases stripping consumers and others of their legal rights have usually been decided 5-4, with the conservatives in the majority. Justice Scalia had been a reliable fifth vote in such arbitration cases, and Gorsuch’s business-friendly record suggests he will be, as well.
Oral arguments are scheduled for October 2, the first day of the new term.
5. Digital Realty Trust v. Somers: Protection for Whistleblowers of Potential Securities Law Violations
This case addresses whether the whistleblower protection provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 apply to an employee who reports potential illegalities internally, but not to the Securities and Exchange Commission. Dodd-Frank specifically defines “whistleblower” as someone who provides information to the SEC.
In this case, Paul Somers, a vice president at Digital Realty Trust, reported potential violations of securities law within the company to senior management. He was then fired by the company, before he could report the suspected violations to the SEC. Somers sought whistleblower protection under Dodd-Frank, but Digital Realty argues that the law’s definition of the term does not include Somers, because he did not report his suspicions to the SEC.
The Ninth Circuit ruled that Dodd-Frank protects internal whistleblowers even if they have not yet reported to the SEC. The statute protects whistleblowers who give information to the Commission, who aid an investigation, or who “mak[e] disclosures that are required or protected under the Sarbanes-Oxley Act of 2002 … and any other law, rule, or regulation subject to the jurisdiction of the Commission.” Sarbanes-Oxley specifically protects internal whistleblowers but prohibits them from reporting to the SEC unless they have already reported the problem internally.
The lower court ruled that the Dodd-Frank whistleblower provision broadly incorporates the disclosure requirements and protections of Sarbanes-Oxley, which include internal whistleblowers. Dodd-Frank would not work otherwise. If it were limited to those who report potential legal violations to the SEC, then internal whistleblowers would be fired upon reporting the misconduct to their company, before they could ever report to the SEC.
The Ninth Circuit noted the similarity to King v. Burwell, the attack against the Affordable Care Act seeking to limit insurance subsidies to states that set up their own exchanges. In that case, the Court looked at congressional intent and the structure of the ACA as a whole, and it reached the obvious conclusion that Congress did not mean to deny subsidies to Americans in the federal-exchange states. Noting King’s observation that terms can have different operative consequences in different contexts, the lower court ruled that strict application of Dodd-Frank’s definition of “whistleblower” would all but read the reference to Sarbanes-Oxley out of the statute, an absurd result.
Oral arguments have not yet been scheduled.
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