The Future of Faithless Electors and the National Popular Vote Compact: Part Two in a Two-Part Series

VIKRAM DAVID AMAR

In this second of a two-part series of columns about the U.S. Supreme Court’s recent decision in the “faithless elector cases, Illinois Law dean and professor Vikram David Amar describes some good news that we may glean from those cases. Specifically, Amar points out that states have many ways of reducing elector faithlessness, and he lists three ways in which the Court’s decision paves the way for advances in the National Popular Vote (NPV) Interstate Compact movement.

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Impoverishing Women: Supreme Court Upholds Trump Administration’s Religious and Moral Exemptions to Contraceptive Mandate

JOANNA L. GROSSMAN

SMU Dedman School of Law professor Joanna L. Grossman comments on the U.S. Supreme Court’s recent decision upholding the Trump administration’s religious and moral exemptions to the contraceptive mandate of the Affordable Care Act (ACA). Grossman provides a brief history of the conflict over the growing politicization of contraception in the United States and argues that the exemptions at issue in this case should never have been promulgated in the first place because they have no support in science or public policy.

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Merritt v. Wilkie

Docket: 19-1095

Opinion Date: July 17, 2020

Judge: Timothy B. Dyk

Areas of Law: Military Law, Public Benefits

While serving in the Navy, 1972-1073, Merritt sustained a concussion in an automobile accident. In 2006, a VA psychologist prepared a note. stating that Merritt had “[s]ymptoms of bipolar disorder[, which] first began ... on active duty,” and that Merritt’s “work performance began to suffer” after the in-service accident. In 2010, Merritt sought disability benefits for bipolar disorder, anxiety, and personality disorders. The Board determined that Merritt’s psychiatric disorders were not service-connected, relying solely on an independent medical expert opinion. On remand, the Board again denied Merritt’s claim, stating that the VA psychology note was entitled to little probative weight, apparently because there was no evidence that the VA psychologist had access to Merritt’s records, and there was a discrepancy between that note and Merritt’s treatment records as to the length of time that Merritt was unconscious following the automobile accident. The Veterans Court affirmed, finding the Board’s error in not following the remand order harmless because the VA note “described no symptoms that . . . supported . . . a retrospective diagnosis” of bipolar disorder, and “there [was] no possibility that the Board could have awarded service connection based on [the note].” Merritt died; Mrs. Merritt was allowed to substitute herself as the surviving spouse. The Federal Circuit subsequently dismissed her appeal as moot. Mrs. Merritt did not preserve her claim by filing a formal claim with the VA within one year of Merritt’s death as required.

Simmons v. Wilkie

Docket: 19-1519

Opinion Date: July 17, 2020

Judge: Raymond T. Chen

Areas of Law: Military Law, Public Benefits

While serving in the Navy 1968-1970, Simmons experienced feelings of depression and homesickness. A VA physician diagnosed Simmons with situational depression but no permanent disability. Another VA physician diagnosed him with immature personality disorder and recommended he be discharged. In 1972, the VA awarded Simmons a non-service-connected pension on his polyarthritis claim. In 1974, Simmons sought additional compensation, asserting that his arthritis was service-connected and that he also had a nervous condition that justified compensation. The VA denied the claim. In 2005, after receiving a total disability rating for an unrelated asbestosis-based claim, Simmons claimed that there was clear and unmistakable error (CUE) in the 1974 decision, with respect to the denial of service connection, citing the presumptions of soundness and service connection in 38 U.S.C. 105(a) and 1111. The Board found that Simmons’s current psychiatric disorder was due to his non-service-connected arthritis and that the presumptions did not apply. The Veterans Court affirmed, finding that although the Board erred in analyzing the presumptions, that error was harmless because Simmons’s current disability was not causally related to his in-service condition. The Federal Circuit affirmed, rejecting an argument that a failure to apply an evidentiary presumption is per se prejudicial. A per se rule of prejudice for failure to apply the presumptions would undo any proper VA finding that the claimant had failed to establish a causal nexus.