As President Donald Trump and Senate Republicans line up votes to confirm a replacement for the late liberal Justice Ruth Bader Ginsburg, weighty cases in the Supreme Court’s fall term are approaching fast.
The case challenging Obamacare, slated for Nov. 10 arguments, is undoubtedly high-stakes — and that isn’t the only one related to issues that could matter deeply to consumers and companies.
Upcoming cases touch on prescription cost regulations, computer code and copyrights, and the validity of the federal government’s main housing industry regulator.
Oral arguments are scheduled to begin Oct. 5. Traditionally, a judge doesn’t vote on a case if they aren’t on the court at the time of oral arguments, constitutional law experts note.
While a potential confirmation battle looms on Capitol Hill, here are some of the upcoming cases, apart from the Obamacare case, that could have financial implications.
Rutledge v. Pharmaceutical Care Management Association, Oct. 6 oral arguments.
This case delves into the interplay of state and federal laws when it comes to a health plan’s prescription costs. Pharmacy benefit managers are companies that employers turn to for help managing their health plan’s prescription benefits, court papers note. Among other things, they process and pay benefit claims, and tell pharmacies how much they will reimburse for a specific prescription.
It’s the reimbursement rates that are at question. More than 30 states have laws governing these rates and ways for pharmacies to challenge a reimbursement rate, according to Arkansas Attorney General Leslie Rutledge, whose state has one such law.
The pharmacy benefit managers’ “below-cost reimbursements have left marks on the pharmacy industry, particularly on independent rural pharmacies,” Rutledge said in Supreme Court filings, pointing to a study that said 16% of independently-owned rural pharmacies closed between 2003 and 2018.
The state is challenging an Eighth Circuit decision saying its law — which looks a lot like the other state laws on the topic — is preempted by a federal law, the 1974 Employee Retirement Income Security Act.
The Pharmaceutical Care Management Association, a trade association of pharmacy benefit managers, counters in court filings that Arkansas’ law “undermines efficient, nationally uniform plan administration,” which was something federal law sought to ensure.
“This is a very important case for Americans covered by employer-sponsored health care,” said an association spokesman. “We are confident in the merits of our arguments and we are looking forward to making our case to the Supreme Court in early October.”
Rutledge said in a statement: “While the nation mourns the loss of Justice Ginsburg, the Supreme Court must continue to hear its cases. I am grateful that the Supreme Court will finally hear and decide our important case ensuring Americans have access to their frontline healthcare providers and that local pharmacies have prescription drug pricing transparency.”
Google v. Oracle America, Oct. 7 oral arguments.
This is a case about copyright law and how it applies to lines of computer code. Two tech-sector heavy hitters, Google
are on opposite sides of a long-running case that stretches back to 2010 . Copyright law says “fair use” of copyrighted work doesn’t infringe the copyright — and that’s what Google says happened when it used certain code “declarations” that made it easier for developers to create apps in Java language on the Android operating system.
Oracle says there’s nothing fair about what happened. Sun Microsystems first developed the Java platform and Oracle acquired Sun. Oracle “continuously improved” the platform, it said in filings, adding, “Oracle spent years and hundreds of millions of dollars writing a blockbuster work — a software platform. Google then refused Oracle’s offer of a license and copied the most recognizable portions of that work into a competing platform for the express purpose of capturing Oracle’s fan base.”
The case has critical implications on innovation and competitiveness inside the tech industry, according to friend of the court filings. More than 25 years of computer software innovation could be in danger if the court sided with Oracle, according to one brief in support of Google, from the Software Freedom Law Center, a nonprofit organization assisting software developers.
Facebook, Inc. v. Duguid, Dec. 8 oral arguments.
This is a case asking how a 1990’s-era law designed to curb rampant telemarketing calls apply to the age of social media and robocalls.
Consumer Noah Duguid says he never had a Facebook account, and yet he received sporadic login notification texts from the social media site between January 2014 and October 2014. (Facebook
said Duguid likely had the recycled telephone number of Facebook user.)
The texts messages violated the Telephone Consumer Protection Act of 1991, Duguid’s class-action lawsuit said. The law put restrictions on when consumers could receive unsolicited calls from an “automatic telephone dialing system.”
Facebook is challenging a Ninth Circuit Court of Appeals decision that let the case proceed. The appellate court created an expansive definition of an “automated telephone dialing system” that wrongly roped in Facebook and goes far beyond what 90s-era lawmakers ever envisioned, the company said in court papers.
Duguid’s lawyers say Facebook is asking the court “to validate the practice of making robocalls to cell phones over their owners’ objection — a textbook example of the intrusions Congress enacted the Telephone Consumer Protection Act to prohibit.”
“This case affects every consumer in the country who owns a cellphone,” Duguid’s lead attorney, Sergei Lemberg, told MarketWatch. “If Facebook prevails, there will be nothing to stop anyone (banks, collectors, marketers, criminals) from robocalling anyone’s cellphone any number of times per day, with or without consent. The impact of this decision cannot be overstated.”
A Facebook spokesman declined to comment.
Collins v. Mnuchin, Dec. 9 oral arguments.
This case will determine whether the structure of the Federal Housing Finance Agency is constitutional or not. The FHFA is the main regulator that oversees Fannie Mae
and Freddie Mac
, the mortgage giants that buy a significant portion of the mortgages created nationwide and then package them into mortgage-backed securities sold to investors.
The agency was created in 2008 in the wake of the subprime mortgage crisis as part of the Housing and Economic Recovery Act, and the FHFA quickly thereafter placed Fannie and Freddie into conservatorship.
Fannie and Freddie shareholders brought the lawsuit in question. In 2012, the FHFA began sweeping the profits of the two mortgage giants to the Treasury Department to repay the funds the government used to bail them out. Under the oversight of the agency’s current director, Mark Calabria, the FHFA has winnowed down the profit sweeps to allow Fannie and Freddie to build back their own cash reserves as a buffer for any economic shocks. Calabria has also said he would wipe out shareholders were Fannie and Freddie to hit hard times again in the future.
Already the Fifth Circuit Court of Appeals has ruled that the FHFA’s structure is unconstitutional, but the plaintiffs decided to appeal the case to the Supreme Court anyway to give the nation’s highest court final say over the matter.
In many ways, the case mirrors one the Supreme Court has already decided. Earlier this year, the court ruled in a 5-4 decision that the Consumer Financial Protection Bureau’s structure was unconstitutional. Like the CFPB, the FHFA has a single director, who as of now is appointed by a president for a five-year term, but cannot be removed by a subsequent president. In the CFPB case, Ginsburg sided with the minority.
Most observers, therefore, expect the FHFA suit to be decided similarly, with the court’s conservative majority giving the president the right to fire the FHFA director. The court also has the option to decide whether the profit sweeps to the Treasury Department are constitutional, but most expect the court to make a narrower ruling and essentially ignore that issue.
If the court rules in this manner, its decision won’t radically reshape the FHFA in and of itself. “Little has changed either in the directorship or direction of the CFPB since its governance was modified,” said Thomas Wade, director of financial services policy at the American Action Forum, a nonprofit, right-leaning think tank.
What would make the decision influential is if former Vice President Joe Biden wins the presidential election. If Trump remains in the White House for another term, Calabria is likely to remain at the FHFA. As such, the agency would move forward with its current plan to recapitalize Fannie and Freddie in the hopes of releasing them from conservatorship.
Those efforts would likely end if Biden assumes the presidency and removes Calabria as FHFA director. “If Biden wins, that’s all off,” said Brandon Barford, partner at Beacon Policy Advisors, an independent policy research firm. Instead, Biden would look to make Fannie and Freddie into “a tool to help with racial justice and economic inequality,” Barford said, and have them refocus on achieving certain goals related to improving housing affordability.
Whichever way the court decides, Barford said the outcome is unlikely to have much bearing on housing-finance reform. That’s ultimately up to Congress, and lawmakers don’t have much incentive to change the current status quo.
“Conservatorship, while politicians may profess to not like it, is actually the best of all worlds, because it allows government control over the two biggest financial entities out there and effective government control over the mortgage market,” Barford said.