Posted Thu, March 30th, 2017 7:01 am by Ronald Mann
I anticipate that neither the merchants nor the agenda networks will be celebrating about the Supreme Court’s attenuated accommodation bygone in Expressions Hair Design v. Schneiderman, which does little except prolong the action about the amends of a New York statute that prohibits merchants from charging a customs to barter who use acclaim cards.
For abounding years, the statute (like a now-expired accouterment of the Truth in Lending Act that it copies) was abundantly irrelevant, because the rules of the aloft credit-card networks banned merchants from acute adjoin barter who use their cards. Those rules acquire afresh appear beneath antitrust attack, and the networks acquire entered into settlements that aish those restrictions in abounding contexts. Thus, statutes like the New York statute are now the capital coercion on merchant behavior in this context.
This case involves a clothing by a accumulation of New York merchants, arguing that the New York statute violates the Aboriginal Amendment because it regulates what they say about their prices. They point out that the statute does not anticipate them from charging credit-card barter a college bulk than banknote customers; they are chargeless to accord a abatement for the acquittal of cash. What they can’t do, though, is acquaint barter they are advantageous a customs or added fee aloft the “sticker” price. The U.S. Cloister of Appeals for the 2nd Circuit absolved the clothing out of hand, absolute that bulk regulations adapt conduct abandoned and appropriately are accustomed from assay beneath the Aboriginal Amendment.
The assessment of the cloister by Chief Justice John Roberts is absolutely in the minimalist attitude we acquire appear to apperceive so well, abnormally with the beneath eight-judge cloister we acquire had after Justice Antonin Scalia. Once it has discussed the facts and the assay of the cloister of appeals and articular the arrangement in question, it offers three paragraphs accurate alone one distinct point, that this statute goes above the authentic adjustment of bulk abundantly into the branch of acclimation accent that it is accountable to assay beneath the Aboriginal Amendment.
That point is a simple one, succinctly made. The cloister addendum that the archetypal bulk adjustment exempted by the court’s beforehand cases “would artlessly adapt the bulk that a abundance could collect.” This regulation, the cloister tells us, is “different” in an important way, because “[t]he law tells merchants annihilation about the bulk they are accustomed to aggregate from a banknote or acclaim agenda payer.” Embracing the acumen amid cogent banknote barter they acquire a abatement and card-paying barter they pay a customs as one of candid significance, the cloister finds the regulations to be absolutely aural the branch of Aboriginal Amendment scrutiny: “What the law does adapt is how sellers may acquaint their prices. … In acclimation the advice of prices rather than prices themselves, §518 regulates speech.”
Having said that, the cloister is done. Emphasizing that “we are a cloister of review, not of aboriginal view,” it offers not a chat as to whether the statute would survive assay beneath the Aboriginal Amendment. It does not alike abridge the adapted test, alone anecdotic the two arch cases that the parties acquire articular as ambience those standards. So the case will acknowledgment to the 2nd Circuit for action of the authority of the statute beneath the Aboriginal Amendment; the alone affair that we apperceive now that we did not apperceive afore is that the Aboriginal Amendment applies.
Only a bald majority of the cloister agreed with the wholly minimalist disposition. Justice Stephen Breyer, for his part, argued that it would be added advantageous in allegory the statute to accede whether it “affects an absorption that the Aboriginal Amendment protects” than it is to accede artlessly whether it regulates “speech,” acquainted that “virtually all government adjustment affects speech.” He appropriate that if the statute in operation does “not arrest the manual of advice to the accessible [by a merchant] so continued as it additionally appear its credit-card price,” it should “receive a civil anatomy of review.” Acknowledging that the parties bitterly altercation how the statute operates in fact, he agreed that the botheration should be advised aboriginal by the cloister of appeals. Similarly, Justice Sonia Sotomayor, aing by Justice Samuel Alito (a attenuate combination!) would acquire gone alike added to acknowledge to the ambiguity about the statute’s application; she recommended that the cloister acquaint the 2nd Circuit on adjourn to use a “certification” action to seek an accurate account of how the statute works from the accomplished New York accompaniment cloister (the New York Cloister of Appeals).
In the end, the alone affair this case does is accumulate the action alive. Because the cloister alone the 2nd Circuit’s adjournment of the merchants’ claiming to the New York statute, the lower courts will acquire added conference and altercation on that question. But the assessment says so little about the Aboriginal Amendment that it is absurd to afford abundant ablaze on approaching controversies or brighten bookish inquiry. Nor does it alike adumbration that the merchants should abound in the action below. So this accurate allotment of the merchants’ action with credit-card networks about the bulk they pay to acquire acclaim cards is far from over.
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Recommended Citation: Ronald Mann, Opinion analysis: Justices action minimalist accommodation on New York credit-card customs statute, SCOTUSblog (Mar. 30, 2017, 7:01 AM), http://www.scotusblog.com/2017/03/opinion-analysis-justices-offer-minimalist-decision-new-york-credit-card-surcharge-statute/
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