Is the So-Called Mandate Without Any Tax Consequences Unconstitutional? And If So, How Should a Court Remedy That? Part Three in a Series Examining Underexplored Issues in the California v. Texas Affordable Care Act Case

VIKRAM DAVID AMAR, EVAN CAMINKER, JASON MAZZONE

In this third of a series of columns examining underexplored issues in the California v. Texas case challenging the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone consider whether the so-called individual mandate of the ACA, now without any tax consequences, is unconstitutional, as the challengers argue. The authors explain why, in their view, the challengers are incorrect, regardless of whether the word “shall” in the ACA is interpreted as obligatory or not.

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North American Butterfly Association v. Wolf

Court: US Court of Appeals for the District of Columbia Circuit

Docket: 19-5052

Opinion Date: October 13, 2020

Judge: Cornelia Thayer Livingston Pillard

Areas of Law: Civil Rights, Constitutional Law, Environmental Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use

National Butterfly Center, a 100-acre wildlife sanctuary and botanical garden owned by the nonprofit North American Butterfly Association, lies along the border with Mexico. The U.S. Department of Homeland Security (DHS) planned to build a segment of the border wall through the Center. The Association sued, citing the Fourth and Fifth Amendments and two environmental statutes. DHS has not analyzed the environmental impact of border wall-related activities at the Center (42 U.S.C. 4332(2)(C)), nor consulted with other federal agencies about how to minimize the impact of those activities on endangered species. An appropriation act subsequently prohibited funding for border fencing at the Center. The district court dismissed all claims, citing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. 1103, as stripping jurisdiction over the statutory claims because the DHS Secretary waived the application of environmental laws with respect to the construction of roads and physical barriers at the Center. The D.C. Circuit affirmed in part, first holding that the claims were not moot and that jurisdiction over the statutory claims was not stripped by IIRIRA, nor was review channeled directly to the Supreme Court. The court held that DHS’s waiver determination defeats the statutory claims, that the Association failed to state a Fourth Amendment claim of unreasonable seizure of property it acknowledges to be “open fields,” but that the Association stated a procedural due process claim under the Fifth Amendment.

Pennymac Corp. v. Godinez

Court: Supreme Court of Hawaii

Docket: SCWC-18-0000185

Opinion Date: October 8, 2020

Judge: Mark E. Recktenwald

Areas of Law: Real Estate & Property Law

The Supreme Court held that res judicata does not preclude a Haw. R. Civ. P. 60(b) motion for relief from judgment in a foreclosure proceeding and that the circuit court did not abuse its discretion in denying Appellant's Rule 60(b) motion in this case. The circuit court found Appellant in default on her mortgage and granted summary judgment in favor of Respondent. Before a foreclosure sale took place, Appellant filed a Rule 60(b) motion, challenging Respondent's standing to bring a foreclosure action against her. The circuit court denied the motion. The intermediate court of appeals affirmed, ruling that res judicata precluded Appellant's post-judgment Rule 60(b) motion. The Supreme Court affirmed on different grounds, holding (1) res judicata did not bar Appellant's Rule 60(b) motion; but (2) the circuit court properly denied the Rule 60(b) motion because there were no extraordinary circumstances warranting extraordinary relief under Rule 60(b)(6).

State ex rel. New Wen, Inc. v. Marchbanks

Court: Supreme Court of Ohio

Citation: 2020-Ohio-4865

Opinion Date: October 14, 2020

Judge: Per Curiam

Areas of Law: Real Estate & Property Law

The Supreme Court denied Relator's application for an award of reasonable attorney fees and costs in this mandamus action, holding that attorney fees were not available. The Supreme Court granted a writ of mandamus to compel the Ohio Department of Transportation and its director (ODOT) to conduct appropriation proceedings to determine the appropriate amount of compensation it should pay to New Wen, Inc., whose Wendy's restaurant was located at an intersection that ODOT closed. Thereafter, New Wen filed an application for attorney fees and other costs. ODOT opposed the application. The Supreme Court denied the application, holding that attorney fees were not available in this type of action.

Albany & Eastern Railroad Co. v. Martell

Court: Oregon Supreme Court

Docket: S066941

Opinion Date: October 15, 2020

Judge: Thomas A. Balmer

Areas of Law: Civil Procedure, Real Estate & Property Law

Plaintiff Albany & Eastern Railroad Company (AERC) petitioned the Oregon Supreme Court for reconsideration of its decision in Albany & Eastern Railroad Co. v. Martell, 469 P3d 748 (2020). In the previous case, the Supreme Court ruled in favor of defendants, holding that the trial court correctly concluded that defendants established a prescriptive easement over plaintiff AERC’s land. By that decision, the Supreme Court reversed the decision of the Court of Appeals and affirmed the judgment of the trial court. In its petition for reconsideration, plaintiff did not challenge the resolution of the prescriptive easement issue. Instead, plaintiff argued the Supreme Court erred in affirming the judgment of the trial court, rather than remanding the case to the Court of Appeals to consider a separate issue: the trial court’s award of attorney fees to defendants under ORS 20.080(2). Plaintiff had argued to the Court of Appeals that, even if defendants successfully asserted a prescriptive easement counterclaim, the trial court had no authority to award attorney fees to defendants. According to plaintiff, a prescriptive easement was an equitable remedy that fell outside of ORS 20.080. Defendants filed a response, arguing that the trial court was correct in its award of attorney fees. They also filed petitions for attorney fees and costs and disbursements. Plaintiff objected to the request for attorney fees, arguing that the issue of defendants’ entitlement to fees had not yet been resolved and, alternatively, that defendants’ claimed fees were unreasonable. The Supreme Court agreed with plaintiff that the matter of attorney fees should have been remanded to the Court of Appeals following its disposition on the merits. Accordingly, plaintiff’s petition for reconsideration was granted, and the disposition in the earlier case modified. Defendants' petition for fees was denied.

Heumiller v. Hansen

Court: South Dakota Supreme Court

Citation: 2020 S.D. 56

Opinion Date: October 14, 2020

Judge: Salter

Areas of Law: Real Estate & Property Law

The Supreme Court reversed the decision of the circuit court granting summary judgment in favor of Defendants and dismissing Plaintiffs' request for a preliminary injunction alleging the existence of an easement allowing access to a gravel pit on Defendants' property, holding that the circuit court erred when it refused to recognize an easement implied by prior use. When Defendants attempted to block Plaintiffs' use of an access road to the gravel pit on Defendants' property Plaintiffs commenced the current action. The circuit court granted summary judgment for Defendants on Plaintiffs' easement implied by prior use claim. The Supreme Court reversed, holding that, under the circumstances of this case, the circuit court (1) erred in applying the substantive law and the standards required by S.D. Codified Law 15.6-56; and (2) erred when it granted Defendants' motion for summary judgment.

Yowell v. Granite Operating Co.

Court: Supreme Court of Texas

Docket: 18-0841

Opinion Date: October 9, 2020

Judge: Busby

Areas of Law: Real Estate & Property Law

The Supreme Court reversed in part and affirmed in part the judgment of the court of appeals in this dispute over the continuing validity of an interest in a mineral lease, holding that a reserved overriding royalty interest (ORRI) in a lease that includes an anti-washout provision extending the interest to new leases is a real property interest that violates the rule against perpetuities (the Rule). The court of appeals held that the ORRI violated the Rule and was no subject to reformation under the Property Code. The court further held (1) the indemnity agreement in this case was not invoked, and (2) sufficient evidence supported the appellate attorneys' fees awarded. The Supreme Court affirmed the court of appeals' judgment on the issues of indemnity and attorneys' fees and otherwise reversed and remanded for the court of appeals to consider whether the ORRI in new leases may be reformed to comply with the Rule, holding that the ORRI in question must be reformed, if possible, in accordance with Tex. Prop. Code 5.043.

Day v. MCC Acquisition, LC

Court: Supreme Court of Virginia

Docket: 190603

Opinion Date: October 15, 2020

Judge: Kelsey

Areas of Law: Real Estate & Property Law

In this interpleader action seeking a judicial resolution of two disputed claims of ownership of proceeds from the sale of unclaimed corporate stock the Supreme Court affirmed the judgment of the circuit court holding that the buyer of the original stock, not the seller, had a super equitable claim of ownership, holding that the circuit court did not err. MCC Acquisition, LC purchased all of the assets of M.C. Construction, which included Trigon Blue Cross Blue Shield stock. M.C. Construction never delivered the stock certificates, however, because it had never possessed them. Later, the Treasurer sold the stock and filed this interpleader action. The circuit court awarded the proceeds from the sale of the unclaimed corporate stock to MCC Acquisition, finding that MCC Acquisition had obtained equitable title to the Trigon stock. The Supreme Court affirmed, holding that the circuit court (1) correctly awarded the interpleader stock proceeds to MCC Acquisition; and (2) did not err in rejecting the argument that the statute of limitations barred MCC Acquisition's in rem claim.