By Lisa Soronen.

Unfair or Unconstitutional? The Supreme Court to Decide

You can’t make this stuff up. Really. But that doesn’t mean it is unconstitutional.

In Heffernan v. City of Paterson, New Jersey the State and Local Legal Center (SLLC) Supreme Court amicus brief argues that a government employer’s perception that an employee has exercised his or her First Amendment rights cannot be the basis for a First Amendment retaliation lawsuit.

Officer Heffernan was assigned to a detail in the Office of Chief of Police. He was reassigned after he was seen picking up a campaign sign for the current police chief’s opponent.

The First Amendment protects non-policymaking public employees who support a candidate in an election. Officer Heffernan maintains that he was in no way involved with the police chief race. The sign wasn’t for himself; it was for his bedridden mother.

Officer Heffernan’s claims he was retaliated against based on the City’s perception he was exercising his First Amendment free association rights. He points to lower court precedent holding that public employees may bring First Amendment retaliation claims if an adverse employment action is taken because they remain politically neutral or silent.

The Third Circuit concluded Heffernan could not bring a perceived free-association claim because he wasn’t retaliated against for “taking a stand of calculated neutrality.” Instead, he was demoted on a “factually incorrect basis.” The Supreme Court has held that it does not violate the Constitution to discipline an employee based on incorrect information. To bring a First Amendment claim an employee must engage in First Amendment speech protected conduct, which Officer Heffernan failed to do in this case.

The SLLC amicus brief argues the Supreme Court need not find a constitutional claim exists when an employer misperceives that an employee has engaged in political speech. Collective bargaining statutes, “just cause” protections, civil service statutes, and statutes protecting against interference or attempts to interfere with any individual’s civil rights would prevent a state or local government employer from lawfully taking an adverse employment action in such circumstances.

The SLLC amicus brief also argues that if the Court were to hold that the First Amendment covers perceived First Amendment violations, it should clarify that the First Amendment does not protect political speech made by employees in sensitive and confidential positions, such as Heffernan.

Collin O’Connor Udell and Anne Selinger, Jackson Lewis, wrote the SLLC brief which was joined by the National Conference of State Legislatures, the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, the International Municipal Lawyers Association,  the International Public Management Association for Human Resources, and the National Public Employer Labor Relations Association.

Immigration and the ACA: A SCOTUS Conference to Remember?

A challenge to President Obama’s immigration deferral program and (another) challenge that could harpoon the Affordable Care Act (ACA) could make it on the Supreme Court’s docket this term and be decided by the end of June.

For the first time at the Supreme Court’s private conference on January 15, it will consider petitions in United States v. Texas (immigration) and Sissel v. Department of Health and Human Services (ACA).

The Court will have three choices: grant the petitions, deny the petitions, or postpone making a decision until a later conference. If it postpones a decision in either case, it must decide at the January 22 conference to accept the cases or they will be heard next term (assuming the petitions are ultimately granted).

If the Court is going to grant the immigration petition it will likely do so January 22 at the latest as the next President may simply not pursue Obama’s immigration program, rendering a June 2017 decision moot.


In November 2014 the Secretary of Homeland Security initiated the Deferred Action for Parents of Americans (DAPA) program allowing certain undocumented parents with citizen children to lawfully stay and work in the United States. Twenty six states sued the United States and won before the Fifth Circuit. Four legal issue could be decided in this case.

The United States argues that the states lack “standing” to challenge the DAPA program. The Fifth Circuit concluded that the cost of issuing drivers licenses to DAPA program participants is a particular harm states will face, which provides the basis for standing.

States also challenged the DAPA program as violating the Administrative Procedures Act (APA) notice-and-comment requirement and claim it is arbitrary and capricious in violation of the APA. The lower court concluded the states were likely to succeed on both claims.

The Fifth Circuit reasoned the DAPA is a substantive rule requiring notice-and-comment not a policy statement. It is arbitrary and capricious because it is “foreclosed by Congress’s careful plan” in the Immigration Naturalization Act for “how parents may derive an immigration classification on the basis of their child’s status and which classes of aliens can achieve deferred action and eligibility for work authorization.”

While the states oppose the Supreme Court reviewing this case (as the won in the lower court), they do assert in their opposition petition that the DAPA program is unconstitutional. The Fifth Circuit did not address the constitutionality of the program. They argue it must have–but lacks–congressional authorization.


The Constitution’s Origination Clause provides that “all Bills for raising Revenue” must “originate in the House of Representatives,” but it allows the Senate to “propose or concur with Amendments” to revenue-raising bills originated by the House.

The ACA, which the Supreme Court has held imposes a tax on those who don’t have or buy health insurance, didn’t originate in the House. It originated in the Senate, which erased the text of another House-passed bill on another subject.

The questions the Court will consider deciding in Sissel v. Department of Health and Human Services are whether the individual mandate is a “Bill[] for raising Revenue” to which the Origination Clause applies and whether the Senate’s cut-and-replace procedure is an “amendment” pursuant to the Origination Clause.

The D.C. Circuit ruled in favor of the federal government reasoning that the “primary purpose” of the individual mandate was to induce people to buy health insurance to make the ACA work, not raise revenue. So the ACA isn’t a “Bill[] for raising Revenue” subject to the Origination Clause.

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Originally posted at Cities Speak.

About the Author: Lisa Soronen is the Executive Director of the State and Local Legal Centerand a regular contributor to CitiesSpeak.