Friday, December 18, 2020
The Supreme Court ruled today that the case challenging President Trump's plan to report reapportionment numbers to Congress without accounting for unauthorized aliens was not ripe for judicial review and that the plaintiffs lacked standing to challenge the plan. The Court said nothing about the merits of the case, although its practical effect allows the President to move forward.
The ruling means that the Commerce Secretary can go ahead and report the numbers of unauthorized aliens along with a total head-count to the President, and that the President can go ahead and report apportionment numbers to Congress based on total numbers minus unauthorized aliens.
This is unprecedented. Apportionment has never discounted for unauthorized aliens.
At the same time, it's not at all clear as a practical matter if or how the President will be able to implement this. And even if he does, the plaintiffs can come back and sue later, when they may meet a more friendly Court. (Justices Kavanaugh and Barrett seemed sympathetic to the plaintiffs' arguments during oral argument on the case. They could join Justices Breyer, Sotomayor, and Kagan to rule against the President.)
The case arose when President Trump issued a memo this summer directing the Secretary of Commerce to report two sets of numbers to the President: (1) a raw census total head count; and (2) the number of unauthorized aliens in the country. President Trump wrote that he'd certify apportionment numbers to Congress based on the total head count minus the number of unauthorized aliens in the country.
This would cause some states (with large populations of unauthorized aliens) to lose representation in Congress. It could also allow some states and local jurisdictions to lose vast amounts of federal funds, which are tied to census numbers.
Some of those states sued, arguing that President Trump's memo violated the Constitution and federal law, both of which mandate apportionment based on "the whole number of persons in each State, excluding Indians not taxed."
The Court ruled that the plaintiffs lacked standing, and that the case wasn't ripe for judicial review. In an unsigned opinion, six justices ruled that the plaintiffs' claimed harms--loss of representation and federal funds--weren't certain enough to justify judicial intervention. "At present, this case is riddled with contingencies and speculation that impede judicial review." The Court noted that the President's memo was contingent ("to the extent practicable," for example), and that it's not even clear that the Secretary can compile the data by the statutory deadline. Moreover, it noted that federal funds may not even be affected: "According to the Government, federal funds are tied to data derived from the census, but not necessarily to the apportionment counts addressed by the memorandum."
Justice Breyer wrote a sharp and lengthy dissent, joined by Justices Sotomayor and Kagan. He argued that the plaintiffs had standing and that the case was ripe for review under settled Court precedent, and that the President's memo violated the Constitution and federal law.
The Supreme Court yesterday rejected a religious private school's challenge to Kentucky's school-closing order, at least for now, given that the order is set to expire shortly. But the move allows the religious school to renew its challenge should the order come back into effect in January.
The action differs from another Court action earlier this week, remanding a case that challenges Colorado's capacity restrictions as applied to religious services. In the Colorado case, the Court's action, taken together with its earlier ruling in a New York case, will probably end the state's restrictions--even though the state had already revoked its restriction (in light of the New York case). In other words, the Court seemed to stretch to effectively strike Colorado's restrictions. In the Kentucky case, in contrast, the Court declined to intervene because the restriction is set to expire soon. In other words, the Court stayed its hand, even though the restriction was in place at the time of the ruling, because it would soon expire.
The case tests Kentucky's school-closing order--an order that applies to all schools (secular and religious) in the state. A religious school challenged the order, arguing that it violated the Free Exercise Clause, because a companion order permitted other in-person activities (restaurants, bars, gyms, movie theaters, indoor weddings, bowling alleys, and gaming halls) to remain open. (This, even though the order treated all schools alike.) A district court issued a preliminary injunction against the school closing order, but the Sixth Circuit stayed the injunction pending appeal (so that the order remained valid as the religious school appealed). The Supreme Court denied the religious school's petition to vacate the stay, largely or entirely because it's set to expire soon.
The Court said "[u]nder all circumstances, especially the timing and the impending expiration of the Order, we deny the application without prejudice to the applicants or other parties seeking a new preliminary injunction if the Governor issues a school-closing order that applies in the new year."
Justices Alito and Gorsuch wrote separate dissents, but joined each other's. Justice Alito argued that the Court should've granted relief, because "timing is in no way the applicants' fault." Justice Gorsuch wrote that the Sixth Circuit failed to consider the school-closing order alongside the business-closing order--and therefore failed to compare the closed religious school to open businesses---in evaluating whether the two orders together discriminated against religion. He also argued that the Sixth Circuit failed to consider a "hybrid" claim, that the school-closing order also violated the fundamental right of parents "to direct the education of their children."
Tuesday, December 15, 2020
The Supreme Court effectively struck Colorado's previous Covid-19 capacity restriction as applied to a rural Colorado church and its pastor. The Court vacated a lower court's ruling that upheld the restriction and remanded the case with instructions to reconsider it in light of the Court's ruling last month in Roman Catholic Diocese of Brooklyn v. Cuomo.
The ruling means that the lower court will almost certainly strike Colorado's previous restriction as applied to the church. But because the case tests the previous restriction, it'll have no immediate effect on the plaintiffs or the state.
Today's ruling in High Plains Harvest Church v. Polis comes less than a month after the Court struck New York's Covid-19 capacity restrictions as to the plaintiffs in Roman Catholic Diocese. Today's ruling contains no analysis; it simply vacates the lower court ruling and remands the case in light of that earlier ruling.
High Plains tests Colorado's restriction "dial," which previously treated houses of worship more favorably than comparable "indoor events" and "restaurants," but less favorable than certain "critical" businesses. But after the Court ruled in Roman Catholic Diocese--and specifically in order to comply with that ruling--the state changed its dial and removed specific numeric capacity limitations on churches.
Justice Kagan wrote a dissent, joined by Justices Breyer and Sotomayor. She argued that the Court needn't consider the case, because it's moot.
The state in Catholic Diocese also removed its restriction before that case came to the Court. The difference in High Plains is that Colorado removed its restrictions specifically in response to the Court's ruling in Catholic Diocese. In other words, Colorado is far less likely to reverse its decision, creating a capable-of-repetition-but-evading-review exception to mootness. This suggests that the Court is either loosening up its mootness exception doctrine, or (more likely) reaching for cases to expand religious freedom under the Free Exercise Clause.
Monday, December 14, 2020
The Supreme Court ruled on Friday that the Religious Freedom Restoration Act authorizes plaintiffs, when appropriate, to obtain monetary damages against federal officials in their individual capacities.
The case, Tanzin v. Tanvir, tested the limits of RFRA's remedies. The plaintiffs are Muslims who sued federal officers under RFRA for putting them on the No Fly list in retaliation for refusing to act as informants against their religious communities. The plaintiffs sued for injunctive relief and monetary damages under RFRA's remedies provision. The government argued that RFRA didn't authorize monetary damages against federal officials.
The Supreme Court disagreed. Justice Thomas wrote for a unanimous Court (except Justice Barrett, who did not participate). He noted that RFRA's remedies provision says that a person may sue and "obtain appropriate relief against a government," and that RFRA defines "government" to include "a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States." Justice Thomas wrote that "official" means an actual person (and not just an office), and that the "acting under color of law" language drew on language from 42 U.S.C. Sec. 1983. That provision authorizes monetary damages against state officials in their individual capacities for violations of the federal Constitution and law. "Because RFRA uses the same terminology as Section 1983 in the very same field of civil rights law, 'it is reasonable to believe that the terminology bears a consistent meaning.'"
Justice Thomas went on to write that monetary damages are "appropriate relief," because "damages have long been awarded as appropriate relief" in suits against government officials. He said that monetary damages were particularly appropriate in a case like this, where only monetary damages could remedy a violation.
He rejected the government's argument that this reading would raise separation-of-powers concerns. "But this exact remedy has coexisted with our constitutional system since the dawn of the Republic. To be sure, there may be policy reasons why Congress may wish to shield Government employees from personal liability, and Congress is free to do so. But there is no constitutional reason why we must do so in its stead."
The Supreme Court on Friday upheld Arkansas's law regulating the price that pharmacy benefit managers reimburse pharmacies for the cost of drugs covered by drug-prescription plans against an ERISA preemption challenge. The ruling leaves Arkansas's law in place.
The case, Rutledge v. Pharmaceutical Care Management Association, tested Arkansas's Act 900. That Act requires pharmacy benefit managers (PBMs, who act as intermediaries between prescription-drug plans and pharmacies that use them) to reimburse pharmacies (under the PBMs' maximum allowable cost schedules) at or above the rate that pharmacies paid to buy the drug from a wholesaler. The law was designed to ensure that pharmacies, particularly rural and independent pharmacies, could cover their costs and stay in business.
A national trade association of PBMs sued, arguing that the provision was preempted by the federal Employee Retirement Income Security Act. ERISA pre-empts "any and all State laws insofar as they may not or hereafter relate to any employee benefit plan" covered by ERISA.
The Supreme Court disagreed. Justice Sotomayor wrote for a unanimous Court (except Justice Barrett, who did not participate) that "ERISA does not pre-empt state rate regulations that merely increase costs or alter incentives for ERISA plans without forcing plans to adopt any particular scheme of substantive coverage." She said that Act 900, which is "merely a form of cost regulation," is just such a plan. Moreover, she said that Act 900 doesn't "refer to" ERISA, because it doesn't "act immediately and exclusively upon ERISA plans or where the existence of ERISA plans is essential to the law's operation." In short, "it applies to PBMs whether or not they manage an ERISA plan."
Justice Thomas concurred, and wrote separately to again express "doubt" as to "our ERISA pre-emption jurisprudence."
Sunday, December 13, 2020
The Supreme Court on Friday dismissed Texas's suit against Georgia, Pennsylvania, Michigan, and Wisconsin alleging violations of the Constitution's Electors Clause. The ruling was based on Texas's lack of standing--that Texas didn't allege a sufficiently specific and personal harm, caused by the defendants' actions and redressable by the Court, to punch its ticket to the Supreme Court. Importantly, the ruling did not touch the merits, the Electors Clause question.
The ruling thus left open a possibility that President Trump or Trump voters (or somebody else with a stronger standing case than Texas) might file similar cases against the same states, also alleging violations of the Electors Clause. (Indeed, a federal court in Wisconsin on Saturday rejected just such a case; more on that below.) So I thought it might be worth a beat to examine this claim.
President Trump and supporters argue that Georgia, Pennsylvania, Michigan, and Wisconsin violated the Constitution's Electors Clause by using election rules that weren't specifically sanctioned by the state legislatures in those states. The Electors Clause, in Article II, Section 1, specifies how states appoint electors to the electoral college; it says, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . ." President Trump and his supporters focus on the phrase "in such Manner as the Legislature thereof may direct," and argue that a state legislature--and only a state legislature--has authority to direct how the state appoints electors.
That claim has some support on the Supreme Court. In other election cases this fall, Justices Thomas, Alito, and Gorsuch seemed to endorse it. For example, Justice Alito (joined by Justices Thomas and Gorsuch) wrote in Pennsylvania v. Boockvar that the "question has national importance, and there is a strong likelihood that the State Supreme Court decision [extending the deadline for mail-in votes] violates the Federal Constitution."
The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.
UPDATE: Justice Alito's opinion in Boockvar was carefully limited to the situation where a state supreme court "override[s] the rules adopted by the legislature." His opinion doesn't extend to situations where a state supreme court merely interprets the rules of the legislature, or where another body acts pursuant to legislative delegation. Justice Alito's opinion, by its own terms, therefore doesn't endorse the strongest version of a legislature-only rule (say, invalidating a state court ruling that merely interprets state law), but instead only a weaker version, where a state court outright "override[s] the rules adopted by the legislature." Many thanks to Professor Bruce Ledewitz, Duquesne, for pointing this out.
(Similarly, in an earlier, unrelated case, Arizona State Legislature v. Arizona Independent Redistricting Commission, Chief Justice Roberts argued in dissent that a similar constitutional provision, the Elections Clause (which gives "the Legislature" of each state the power to regulate "[t]he Times, Places and Manner of holding Elections") does not allow state voters to vest redistricting power in an independent commission. Chief Justice Roberts's position in that case doesn't necessarily mean that he'd also endorse a "legislature-only" reading of the Electors Clause. But it does suggest that he'd at least be open to it.)
Under that "legislature-only" reading of the Electors Clause, President Trump and his supporters argue that Georgia, Pennsylvania, Michigan, and Wisconsin violated the Clause, because executive agencies or courts in those states adopted voting rules that weren't specifically enacted by the legislatures in those states. For example, in Boockvar, the Pennsylvania Supreme Court ordered that the state accept mail-in ballots up to three days after election day, even though state law set an election-day deadline. The court held that the extension was required to comply with the Free and Equal Elections Clause of the state constitution. In other states, executive officials or judges issued similar orders in order to accommodate voters in an age of Covid-19. President Trump and his supporters claimed that these accommodations violated the Electors Clause, because they weren't specifically authorized by the state legislatures.
On the other side, the states argue that the Electors Clause authorizes only state legislatures only to direct the "Manner" of appointing electors--and that the state legislatures did this when they specified under state law that each state's electors would go to the popular-vote winner in the state. The states say that the "Manner" of appointing electors only extends that far--to the specification how a state would appoint its electors (by popular vote, for example)--and not to every jot and tittle of state election administration. Read more broadly, they say that the Clause would allow anyone to successfully challenge in federal court any aspect of the way a state ran a presidential election, so long as it wasn't specifically adopted by the state's legislature--a clearly absurd result.
Moreover, they say that a state "legislative" act isn't just an act of the "legislature," but rather an act of the state's lawmaking apparatus. This includes the governor's signature, the executive's enforcement, and the state courts' review. (That's what the majority said about the Elections Clause in Arizona State Legislature.)
Finally, even if the Electors Clause means that the legislature--and the legislature alone--can enact the election rules for presidential elections, the states say that they complied, at least with regard to executive enforcement of election law. That's because the legislature delegated authority to enforce the election law to executive agencies.
A federal court in Wisconsin put these arguments to the test just yesterday, in Trump v. Wisconsin Elections Commission . . . and ruled flatly against the President. The court held that the Wisconsin legislature did direct the manner of appointing electors--by specifying that they'd be appointed according to the popular vote in the state. It held that the "Manner" of appointment didn't extend to particular voting rules and the administration of the election: "[The President's] argument confuses and conflates the 'Manner' of appointing presidential electors--popular election--with underlying rules of election administration." And it held that even if the "Manner" of appointing electors includes election administration, Wisconsin satisfied the Clause, because the state legislature delegated authority to the Wisconsin Elections Commission to make certain rules on the administration of an election.
Stepping back, this is why Trump opponents have argued that Texas's lawsuit, if successful, would have unduly encroached on state sovereignty: because it would've meant that federal courts would've second-guessed every aspect of a state's lawmaking and administration of an election (the legislature's act, the executive's enforcement, and the state courts' say-so as to how it must operate under the state constitution). The Trump position would allow federal courts a free license to invalidate any aspect of election administration that the state legislature did not specifically enact--no matter how much the legislative act violated state law or the state constitution.
Still, if the question gets to the Supreme Court--a big "if," given all the other problems with these lawsuits--at least three justices seem ready to rule for a "legislature-only" interpretation of the Electors Clause. That position, if endorsed by five justices, could favor President Trump in one or more of these states, where executive officers or judges adopted election rules without specific authorization (as in Wisconsin) from the legislature.
Saturday, December 12, 2020
The Supreme Court on Friday dismissed Texas's challenge to election results in Georgia, Pennsylvania, Michigan, and Wisconsin for lack of standing. The brief order simply read,
The State of Texas's motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.
Texas argued that it asserted two harms sufficient to satisfy standing: (1) its citizens were harmed in their votes for president by other states' failures to comply with the Elections Clause; and (2) Texas itself was harmed in its role (as a state) in the Senate, where the vice president could break a tie.
The Court's ruling rejects those theories. It did not say anything about the Elections Clause, however.
Justice Alito filed a statement, joined by Justice Thomas, reiterating their view that the Court lacked "discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction."
The ruling ends this challenge. But Trump supporters have already indicated that they'll seek to file similar challenges on behalf of individual voters in these states.
Friday, December 11, 2020
The Supreme Court ruled this week that a Delaware attorney lacked standing to challenge the state's political balancing requirements for seats on its courts. The ruling means that the Court didn't address the underlying merits question, whether the balancing requirements violate the First Amendment. It also didn't break any significant new ground on standing.
The case, Carney v. Adams, involved Delaware's two political balancing requirements for its courts, the "bare majority" requirement and the "major party" requirement. The bare majority requirement says that no more than a bare majority of judges on any of the state's five major courts "shall be of the same political party." The major party requirement says that judges not in the majority on three of the state's courts "shall be of the other major political party."
Delaware attorney James Adams sued, arguing that the provisions violated his First Amendment right to free association. There was just one problem: Adams failed to show that he was harmed by the two requirements. He hadn't applied for a judgeship and been rejected, and he hadn't even stated a determinate intent to apply for a particular judgeship for which he wouldn't qualify; he only said that he'd like to apply for a judgeship at some undefined point in the future--and that the political balancing requirements would prevent him from getting the job. So the Court ruled that he lacked standing.
Justice Breyer wrote for a unanimous Court. Justice Breyer concluded that Adams failed to show that he was "able and ready" to apply for a judgeship based on three considerations:
First, as we have laid out Adams' words "I would apply . . . " stand alone without any actual past injury, without reference to an anticipated timeframe, without prior judgeship applications, without prior relevant conversations, without efforts to determine likely openings, without other preparations or investigations, and without any other supporting evidence.
Second, the context offers Adams no support. It suggests an abstract, generalized grievance, not an actual desire to become a judge. . . .
Third, if we were to hold that Adams' few words of general intent--without more and against all contrary evidence--were sufficient here to show an "injury in fact," we would significantly weaken the longstanding legal doctrine preventing this Court from providing advisory opinions . . . .
Justice Breyer quoted Justice Powell in United States v. Richardson, reminding us why standing is an important separation-of-powers concern:
[Justice Powell] found it "inescapable" that to find standing based upon [a general interest, common to all members of the public] "would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government." He added that "[w]e should be ever mindful of the contradictions that would arise if a democracy were to permit general oversight of the elected branches of government by a nonrepresentative, and in large measure insulated, judicial branch.
Justice Sotomayor concurred. She wrote to point out that the two requirements were very different and might very well require two different kinds of analysis, if and when this issue comes back to the courts. She also urged lower courts to certify the question of the severability of the two provisions to the state courts.
Thursday, December 3, 2020
The Ninth Circuit affirmed a preliminary injunction yesterday that halted the administration's "public charge" rule--the ban on admission of aliens to the United States who are likely to receive certain public benefits for more than 12 months within any 36 month period. But the court vacated a lower court's nationwide injunction; instead, the ruling temporarily halted the rule within the Ninth Circuit and in other outside states that brought the case.
The ruling aligns with similar rulings in the Second Circuit and Seventh Circuit (where then-Judge Amy Coney Barrett dissented), but conflicts with a ruling out of the Fourth Circuit.
Ordinarily, this case would seem destined for the Supreme Court. But DHS may reverse course in the Biden Administration and render it moot.
The case arose when DHS adopted a rule in August 2019 that re-defined "public charge" under the Immigration and Naturalization Act provision that renders inadmissible any alien who is likely to become a "public charge." In particular, DHS defined "public charge" to mean "an alien who receives one or more [specified] public benefits . . . for more than 12 months in the aggregate within any 36-month period."
The change in definition broke with a long history, "from the Victorian Woodhouse to agency guidance in 1999," defining "public charge" to mean dependence on public assistance for survival--and not "short-term use of in-kind benefits that are neither intended nor sufficient to provide basic sustenance."
The court ruled that the 2019 rule was contrary to law and arbitrary and capricious in violence of the Administrative Procedure Act. It held that the rule violated the long-running meaning of "public charge" under the INA and thus violated the Act. It also held that DHS failed to consider the financial impact of the rule and the health consequences of the rule for immigrants and the public as a whole, and failed to explain its reversal in position (from the 1999 guidance).
Judge VanDyke dissented, relying on the reasoning in the Fourth Circuit ruling, then-Judge Barrett's dissent in the Seventh Circuit case, the earlier Ninth Circuit ruling staying a district court injunction pending appeal, and "the Supreme Court's multiple stays this year of injunctions virtually identical to those the majority today affirms."
Thursday, November 26, 2020
The Supreme Court yesterday granted an application to temporarily halt the enforcement of New York's "red zone" and "orange zone" occupancy limits to the Roman Catholic Diocese of Brooklyn and Agudath Israel of America, the plaintiffs challenging the restrictions. The ruling means that New York cannot apply its red- and orange-zone restrictions to the plaintiffs as their case works its way through the lower courts. (It's currently on appeal at the Second Circuit.) But it also telegraphs the way the Court will rule when the case eventually comes to it on the merits.
The 5-4 ruling reflected the conventional divide on the Court (with Chief Justice Roberts siding with the three progressives). It also revealed a rift between Justice Gorsuch and Chief Justice Roberts, as Justice Gorsuch took aim at the Chief for his earlier opinion in South Bay. The ruling illustrates the impact of Justice Amy Coney Barrett: it almost certainly would've come out the other way if Justice Ginsburg were still on the Court.
The Court held that New York's 10- and 25-person occupancy restrictions (the red- and orange-zone restrictions, respectively) likely violate the Free Exercise Clause. The per curiam opinion said that the zones "single out houses of worship for especially harsh treatment" in comparison to secular "essential" businesses like "acupuncture facilities, camp grounds, garages[, and] plants manufacturing chemicals and microelectronics and transportation facilities." The Court said that because the restrictions are not "neutral" and of "general applicability," they must satisfy strict scrutiny, and that they failed. The Court noted that New York's zones are far more restrictive than other COVID-related regulations that the Court has considered, that "there is no evidence that the applicants have contributed to the spread of COVID-19," and that the state could achieve its objective (to minimize the risk of transmission) with less restrictive means, for example, tying the occupancy limits to the size of the synagogue or church (rather than setting the limit at a particular number).
Chief Justice Roberts dissented, arguing that an injunction isn't necessary, because the state lifted the red- and orange-zone restrictions on the plaintiffs.
Justice Breyer dissented, joined by Justices Sotomayor and Kagan, arguing that the injunction isn't necessary and that the plaintiffs didn't meet the requirements for an "extraordinary remedy."
Justice Sotomayor dissented, too, joined by Justice Kagan, arguing that the state treats synagogues and churches more favorably than similar secular activities (like concerts), and that the state's "essential services" that enjoy more favorable treatment are distinguishable based on the science.
Tuesday, November 10, 2020
The Supreme Court hears arguments today in the latest challenge to the Affordable Care Act--a case that could take down the entire Act. Here's my preview, from the ABA Preview of United States Supreme Court cases, with permission:
The universal coverage provision is once again at the Supreme Court. This time, challengers argue that the provision is not a valid exercise of Congress’s taxing authority, because the provision lacks a critical feature of a “tax”: it cannot raise revenue for the government. (After all, the penalty for noncompliance is zero.) Moreover, challengers argue that because the universal coverage provision is so integrated with the rest of the Act, the provision’s invalidity also means that the rest of the Act must fall, too. But before we even get to these issues, the Court will first consider whether the challengers even have standing to bring their claims.
- Do individual and state plaintiffs have standing to challenge the minimum-coverage provision in the Affordable Care Act?
- Did Congress render the minimal-coverage provision unconstitutional by setting the tax penalty for individuals who lack health insurance to zero?
- If the minimal-coverage provision is unconstitutional, is the rest of the Affordable Care Act unconstitutional, too?
In 2010, Congress enacted the Patient Protection and Affordable Care Act (ACA). The central goal of the Act was to extend quality and affordable health insurance to all Americans. In order to achieve this goal, the ACA included a host of new policies and regulations of the health-insurance market.
Three of those policies stand out. First, the “guaranteed-issue provision” prohibits health-insurance companies from denying coverage for pre-existing conditions. Second, the “community-rating provision” bars health-insurance companies from charging individuals higher premiums because of their health conditions. And third, the “universal coverage provision” (or “individual mandate”) requires all individuals to obtain health insurance, or to pay a tax penalty. 26 U.S.C. § 5000A.
The three provisions complement each other in order to achieve the goals of the Act. The guaranteed-issue provision ensures that all individuals have access to health insurance. The community-rating provision ensures that no individuals pay an outsized rate based on their health conditions. And the universal-coverage provision helps to ensure that health-insurance rates are affordable, by expanding the pool of insured individuals who pay into the health-insurance system, including healthy, but previously uninsured, individuals. These provisions form a “three-legged stool” that sits at the center of the Act.
But the ACA contains a web of other reforms and regulations, too, all designed to help extend quality and affordable health insurance to all Americans. Most notably, the Act provides federal financial incentives to states to expand their Medicaid programs; it expands access to employer-based health insurance; it creates health-insurance marketplaces ( “exchanges”) where individuals can shop for insurance; it provides subsidies to insurance companies and individuals to help keep rates affordable; it requires health-insurance plans to provide certain minimal benefits; it allows young adults to stay on their parents’ health insurance plans until age 26; and more. The ACA also contains a number of provisions that are designed to expand access to quality and affordable healthcare and improve public health outcomes, even if they are not directly related to the health-insurance market.
Opponents of the ACA immediately sued to stop the Act. They argued, among other things, that Congress lacked authority to enact the universal-coverage provision, and that the provision was therefore unconstitutional.
The Supreme Court disagreed. A sharply divided five-to-four Court ruled that while Congress could not enact the provision under its Commerce Clause authority, Congress could enact the provision under its taxing authority. NFIB v. Sebelius, 567 U.S. 519 (2012). In other words, the Court held that Congress could not require individuals to purchase health insurance as a free-standing regulatory mandate. But it said that Congress could impose a tax penalty against individuals who failed to comply with the provision.
In explaining why Congress could enact the universal coverage provision under its taxing authority, Chief Justice John Roberts, writing for the Court, noted that the tax penalty for noncompliance with the universal coverage had all the indicia of valid tax. He observed that the provision was located in the Internal Revenue Code, and that the amount of the penalty was “determined by such familiar factors as taxable income, number of dependents, and joint filing status.” Most importantly, he noted that the provision “yield[ed] the essential feature of any tax: It produce[d] at least some revenue for the Government.” As a tax, Chief Justice Roberts observed, the provision “is not a legal command to buy insurance,” but instead “a condition—not owning health insurance—that triggers a tax.”
Before and after the ruling, opponents of the ACA waged several attempts to revoke the Act through legislation. These efforts failed. But in 2017, in direct response to the ruling, opponents in Congress, through the Tax Cuts and Jobs Act (TCJA), succeeded in undermining the universal-coverage provision indirectly, by setting the tax penalty for noncompliance at zero dollars.
After Congress enacted the TCJA, two private individuals and a group of states sued the government, arguing that the TCJA rendered the universal-coverage provision unconstitutional. They claimed that by zeroing out the tax penalty for noncompliance, Congress transformed the universal-coverage provision from a valid tax (under NFIB) to an unconstitutional direct requirement to buy health insurance (also under NFIB). Moreover, they argued that because the universal-coverage provision worked in concert with the many other provisions of the ACA, the universal-coverage provision was not “severable” from the rest of the Act, and the rest of the Act must necessarily fall, too.
The government sided with the plaintiffs on the universal-coverage provision, but adopted a somewhat more nuanced position on severability. In particular, the government maintained that the universal-coverage provision was inseverable only as to the guaranteed-issue and community-rating provisions, and so only those two additional components of the ACA must fall. Because the government sided with the plaintiffs, a group of states and the District of Columbia, and later the U.S. House of Representatives, intervened to defend the Act.
The district court ruled for the plaintiffs. The court held that the universal-coverage provision was no longer valid as a tax, and that it was inseverable from the rest of the Act. The court struck the entire ACA, but stayed the ruling pending appeal.
The Fifth Circuit agreed that the universal-coverage provision was no longer valid as a tax, and therefore exceeded Congress’s authority. But it remanded the case to the district court for further consideration of the severability question. The appeals court instructed the lower court to give more attention to the legislative intent behind the TCJA, and to more carefully consider how particular portions of the ACA were linked to the universal-coverage provision.
This appeal followed.
The case includes three distinct issues. Let’s take a look, one at a time. (The individual and state plaintiffs briefed a fourth issue—that the Court should uphold the district court’s nationwide injunction against the ACA—but the Court did not certify that question for appeal. We’ll refer to the parties defending the ACA, the states, the District of Columbia, and the U.S. House of Representative, together as the “petitioners.”)
In order to sue in federal court, plaintiffs must demonstrate that they have “standing.” This requires a plaintiff to show (1) that the plaintiff suffered a direct and concrete harm (2) that was caused by the defendant’s actions and (3) that would be redressed by the plaintiff’s requested relief in court. Only one plaintiff needs to demonstrate standing for a case to move forward, so this case could proceed if any of the individual plaintiffs or the states have standing.
The petitioners argue that the plaintiffs (now the respondents) lack standing. As to the individual plaintiffs, the petitioners claim that the universal-coverage provision, as altered by the TCJA, does not harm the plaintiffs, because it doesn’t require them to do anything, and because it doesn’t penalize them if they don’t buy insurance. The petitioners say that the zeroed-out universal-coverage provision simply gives individuals a choice—buy insurance or don’t—but that it doesn’t impose any consequence. They say that any harm is therefore self-inflicted, and doesn’t count for standing purposes. As to the states, the petitioners point out that the universal-coverage provision doesn’t even apply to them. Moreover, the petitioners maintain that they simply have failed to introduce any evidence that the zeroed-out universal-coverage provision itself inflicts any injury on them at all (even if other provisions of the ACA may increase their costs).
The plaintiffs argue that they have standing. The individual plaintiffs contend that they have standing, because the universal-coverage provision, even without a penalty, still requires them to purchase insurance—an actual harm for standing purposes. The states claim that the universal-coverage provision, even without a penalty, imposes several costs on them: increased enrollment in their Medicaid programs (because some individuals will enroll in Medicaid to comply with the universal-coverage provision); increased reporting and regulatory requirements under other provisions in the ACA; and increased costs in providing state employees with health insurance in order to comply with the ACA’s employer mandate. The states say that all of these costs count toward standing, notwithstanding the petitioners’ unduly narrow focus on the lack of particular harms that derive from the universal-coverage provision.
The government argues that the individual plaintiffs have standing. (The government does not make an argument one way or another about the states’ standing.) The government claims that the individual plaintiffs are injured by the ACA’s provisions that regulate health-insurance plans (the government calls these “insurance reform provisions”), because these provisions limit the individual plaintiffs’ choices and increase their costs in the health-insurance market. The government says that the individual plaintiffs can leverage this harm to challenge the universal-coverage provision, because the insurance reform provisions are inseverable from the universal-coverage provision, and all other portions of the ACA, because they, too, are inseverable. But the government maintains that the Court can only grant relief with regard to those provisions that actually injure the individual plaintiffs—relief that would redress only the individual plaintiffs’ harms. The government urges the Court to rule the entire Act unconstitutional, but then to remand the case “for consideration of the scope of appropriate relief redressing the plaintiffs’ injuries.”
Constitutionality of the Universal-Coverage Provision
The petitioners argue that the universal-coverage provision is still constitutional, even after Congress reduced the tax penalty to zero. They say that while the provision may encourage individuals to buy insurance, it doesn’t require anyone to do anything. They contend that this kind of action is well within Congress’s authority, either as a precatory statement, or as a suspended exercise of its taxing power (a placeholder provision in the law that is currently dormant, but that Congress could reactivate in the future). And they note that Congress did not revoke the provision; it simply zeroed out the penalty. The petitioners claim that the Fifth Circuit’s ruling to the contrary—that Congress transformed the universal-coverage provision into an invalid exercise of its Commerce Clause authority—flies in the face of NFIB itself, which says that the courts must “construe a statute to save it, if fairly possible.”
The plaintiffs and the government respond that the universal-coverage provision is no longer constitutional under Congress’s taxing authority, because it no longer raises revenue. As the government says, “Under NFIB’s functional approach, a statute that imposes no tax liability on anyone cannot be sustained as a tax.” The plaintiffs and the government say that the provision now reads most naturally to directly require individuals to buy insurance. They contend that this is exactly what the Court in NFIB ruled that Congress could not do.
The petitioners argue that even if the universal-coverage provision is no longer constitutional, it is severable from the rest of the Act. They note that when Congress zeroed-out the tax penalty in the TCJA, it left the rest of the Act in place. According to the petitioners, this shows that Congress intended only to remove the enforcement mechanism for the universal-coverage provision, but not to undermine the rest of the ACA. (Importantly, the petitioners focus on congressional intent in 2017, when it enacted the TCJA, and not 2010, when it enacted the ACA.) The petitioners maintain that, as a practical matter, the rest of the ACA has continued to operate since 2017, even without the tax penalty.
The individual and state plaintiffs and the government counter that the universal-coverage provision is inseverable from the rest of the ACA, because Congress enacted the provision as an essential part of the larger Act. They say that the universal-coverage provision is an indispensable part of the “three-legged stool” (along with the guaranteed-issue and community-rating provisions), and that the many and myriad other provisions in the Act cannot operate without the Act’s core three-legged stool. (In contrast to the petitioners, the individual and state plaintiffs emphasize congressional intent in 2010 and before the TCJA. They note, however, that the TCJA retained statutory findings as to how these provisions work together to achieve the goals of the Act.)
This case is easily one of the most important cases of the Term. That’s because it tests the entire ACA—a sweeping piece of legislation that comprehensively restructured the health insurance market in the United States and brought quality and affordable health insurance to millions of individuals. A ruling for the challengers could mean the end for many or all of the ACA’s reforms, and could result in millions of individuals losing health insurance and other protections and benefits under the Act. Given that Congress has not offered a viable alternative to the ACA, a ruling for the challengers would likely return the health-insurance market to its pre-ACA status.
This is all the more significant in the middle of a pandemic, with an illness, Covid-19, that has infected millions of Americans and killed over 200,000. Infected individuals require various levels of health care, often quite significant, paid at least in part by their health insurance. Many previously infected individuals continue to show signs of longer-lasting, even chronic, conditions that will require future health care and health insurance. A ruling for the plaintiffs could affect these individuals’ health-insurance policies, and their ability to obtain quality and affordable health care for treatment. At the same time, lingering Covid-19-related conditions could drive up insurance rates or even prevent some previously infected individuals from obtaining new health insurance without the community-rating and guaranteed-issue provisions in the ACA.
But that’s only if the Court rules for opponents on each of the three issues in the case. Such a ruling is not at all certain. For starters, the Court could dismiss the case for lack of standing, vacate the lower courts’ rulings, and leave the ACA in place, exactly as it is. Despite the plaintiffs’ and the government’s arguments, and despite the lower courts’ rulings, the plaintiffs’ standing is tenuous. The universal-coverage provision doesn’t require any of the individual or state plaintiffs to do anything, and the states’ theory of standing hinges on other provisions of the ACA. It’s not at all clear that the Court will rule for the plaintiffs on standing. That said, the Court’s rulings on standing often seem to turn on the underlying merits. That may be true here, too: if a majority wishes to address the merits, the Court will likely find standing.
As to the universal-coverage provision, the Court seems primed to rule this unconstitutional. Remember that Chief Justice Roberts wrote for a bare majority in NFIB that the universal-coverage provision fell within congressional authority to tax, because it could raise revenue. But with the provision now zeroed-out, it is not at all clear that Chief Justice Roberts would vote to uphold it. Even if the other current justices who joined this portion of the NFIB ruling (Justices Breyer, Sotomayor, and Kagan) voted to uphold the provision, there may now be a five-justice majority against the provision. Since Justice Ruth Bader Ginsburg’s death, the Court has only eight justices. (More on this below.) A four-four tie would affirm the Fifth Circuit’s ruling striking the universal-coverage provision, but without setting a Supreme Court precedent.
As to severability, we just don’t know. To be sure, there is language in NFIB that suggests that the universal-coverage provision is inextricably linked to other provisions of the Act, particularly the guaranteed-issue and community-rating provisions. But that language does not necessarily foretell the Court’s ruling on severability. (The inextricability of the universal-coverage provision as a matter of policy may be different than the inseverablity of the provision as a matter of constitutional law.) If the Court were to strike the universal-coverage provision, it could (1) rule all of the Act severable (and strike only the universal-coverage provision), (2) rule only the guaranteed-issue and community-rating provisions inseverable (and strike only the three provisions), (3) rule certain other provisions of the ACA also inseverable (and strike only those provisions), or (4) rule the entire ACA inseverable (and strike the whole Act). Because the Fifth Circuit did not rule on the severability of specific ACA provisions—remember that the Fifth Circuit remanded the case for further consideration of severability—the Court may similarly kick the question back to the lower courts. (As described above, in standing, the government urges the Court to rule the entire Act unconstitutional, but to remand the case for a determination of which provisions harm the individual plaintiffs.)
The timing of the case, just a week after the 2020 presidential election, is critical. As this piece goes to print, President Trump has nominated Judge Amy Coney Barrett to replace Justice Ruth Bader Ginsburg on the Court. Justice Ginsburg voted to uphold the universal-coverage provision in NFIB, and has consistently voted against other challenges to the Act. Judge Barrett, in stark contrast, is on the record opposing the Court’s holding in NFIB that Congress validly enacted the universal-coverage provision under its taxing authority. A Justice Barrett would almost certainly tilt the Court—with possibly a six-justice majority—further against the universal-coverage provision. We probably don’t have enough information to predict the way a Justice Barrett might rule on severability.
At publication, the Senate just began confirmation hearings. If the Senate confirms Judge Barrett before November 10, as now seems likely, she will sit for oral arguments and participate in the case. If the Senate does not confirm Judge Barrett before November 10, under ordinary practice, she won’t—unless the Court orders a reargument in order to include her. With the current eight-justice Court, a tie would simply leave the Fifth Circuit ruling in place.
One final point. Even if the Court were to rule for the plaintiffs on all the issues, Congress could probably restore much or all of the ACA, if it had the votes. Remember that the Court in NFIB held that Congress could enact the universal-coverage provision with a tax penalty under its taxing authority. That ruling still stands, for now, at least. Again, a Justice Amy Coney Barrett could move the Court against it.
Wednesday, November 4, 2020
The Supreme Court will hear oral arguments today in Fulton v. City of Philadelphia, the case testing whether the city's enforcement of a clause in its foster-care contracts that prohibits discrimination by sexual orientation violates Catholic Social Service's Free Exercise rights. Here's my preview, from the ABA Preview of United States Supreme Court Cases, with permission:
The City of Philadelphia’s Department of Human Services (DHS) operates the City’s foster-care program. DHS takes legal custody of children whom courts have removed from their homes, and places the children in a foster home or facility that is appropriate to each child’s interests and needs.
In order to help operate the program, DHS contracts with private-sector social-service providers. Some of these providers serve as “Community Umbrella Agencies” (CUAs), which provide social services to foster children. Some operate congregate-care facilities, which provide group housing for children. And some operate as “Foster Family Care Agencies” (FFCAs), which conduct home studies of potential foster parents, issue certifications for families that meet state criteria, and, upon referral from DHS, place children with foster parents that the FFCAs have certified. State law delegates authority to FFCAs, so that FFCAs exercise state power when they evaluate and certify foster parents. Private agencies have no authority to place children with foster parents without an FFCA contract. Still, DHS’s standard contract says that a contracting agency “is an independent contractor,” and not “an employee or agent of the City.”
DHS contracts include a standard nondiscrimination clause. The clause says that FFCAs must comply with the City’s Fair Practices Ordinance, which prohibits discrimination based on any protected characteristic, including sexual orientation. The contracts also say that contractors “shall not discriminate” in any “public accommodations practices” on the basis of sexual orientation.
Catholic Social Services (CSS) is a faith-based social-service organization that has long contracted with DHS to provide services in the City’s foster-care program. On March 13, 2018, the Philadelphia Inquirer ran a piece titled “Two foster agencies in Philly won’t place kids with LGBTQ people.” The story reported that CSS and another social-service organization would not certify same-sex couples for foster-care placements. In the article, the Archdiocese’s spokesperson confirmed CSS’s longstanding religion-based policy against providing foster-care certification for unmarried couples and for same-sex married couples, but emphasized that CSS had received no inquiries from same-sex couples. (CSS maintains that if it received such an inquiry, it would refer the couple to another agency.)
Two days after the story ran, the City Council passed a resolution condemning “discrimination that occurs under the guise of religious freedom.” Around the same time, the Philadelphia Commission on Human Relations (PCHR), at the request of the Mayor, sent a letter to the Auxiliary Bishop who oversees CSS. The letter asked the Bishop to answer questions about CSS’s policies, including whether “you have authority as a local affiliate/branch of a larger organiz[ation] to create or follow your own policies.” (CSS maintains that the Mayor previously said that he “could care less about the people of the Archdiocese,” called the Archbishop’s actions “not Christian,” and called on Pope Francis “to kick some ass here!”)
The Mayor also contacted DHS Commissioner Cynthia Figueroa. Figueroa met with CSS representatives “to find a mutually agreeable solution.” During the meeting, she urged CSS representatives to follow “the teachings of Pope Francis,” and told them that “times have changed,” “attitudes have changed,” and that CSS should change its policy because it was “not 100 years ago.” CSS maintained its position, however, and DHS then halted its referrals to CSS for the rest of its contractual term, through the City’s Fiscal Year 2018.
CSS’s FY 2018 FFCA contract expired on June 30, 2018. DHS repeatedly expressed its “strong desire to keep CSS as a foster care agency,” and offered CSS FFCA contracts on the same terms as other agencies. In FYs 2019 and 2020, DHS offered CSS a choice between the same contract it offered to other FFCA agencies and a “maintenance contract” to provide foster-care services for families that CSS was already supporting. CSS chose the maintenance contract. (Although CSS declined to enter into an FFCA contract, the agency nevertheless continued to contract with DHS to provide CUA and a congregate-care services.)
In May 2018, while its FY 2018 FFCA contract was still in force, CSS sued DHS. CSS argued that DHS’s move to halt referrals violated the Free Exercise Clause, the Establishment Clause, the Free Speech Clause, and the Pennsylvania Religious Freedom Protection Act. The district court denied CSS’s motion for a preliminary injunction, and the Third Circuit and the Supreme Court denied CSS’s motion for an injunction pending appeal. Fulton v. City of Philadelphia, 139 S. Ct. 49 (2018). (Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch noted their dissent.) The Third Circuit affirmed the district court’s ruling. This appeal followed.
The case includes three distinct issues. We’ll review them one by one.
Free Exercise Clause
Under the Free Exercise Clause, a government action that targets religion or a religious practice must be narrowly tailored, or necessary, to meet a compelling government interest. This test, “strict scrutiny,” is the most rigorous test known to constitutional law; under strict scrutiny, the challenged government action almost always fails. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).
On the other hand, a government action that is generally applicable and neutral with regard to religion, but that nevertheless has an “incidental” effect on religion, must only be rationally related to a legitimate government interest. This test, “rational basis review,” is one of the more lenient tests known to constitutional law, and the challenged government action almost always passes. Employment Division v. Smith, 494 U.S. 872 (1990).
In this case, CSS argues that DHS’s nondiscrimination policy targets the agency’s religious exercise, that it is not generally applicable, and that it fails strict scrutiny. CSS claims that “[t]he City has repeatedly shifted policies,” developed post hoc rationalizations for its nondiscrimination policy, and “changed the rules in response to CSS”—all proving that the City targeted CSS’s religious exercise. Moreover, CSS contends that the actions and statements of the City Council, the Mayor, the PCHR, and DHS all reflect hostility toward CSS’s religious beliefs. CSS asserts that the City’s nondiscrimination policy is not generally applicable, because it allows for exemptions by a “Waiver/Exemption Committee” for “constitutional issues” and by “the Commissioner or the Commissioner’s designee, in his/her sole discretion.” CSS contends that the City’s exemptions undermine its own interests, and that the City does not even apply nondiscrimination to its own actions.
CSS argues that the City’s nondiscrimination policy cannot satisfy strict scrutiny. CSS says that the City’s “hostility towards CSS’s religious exercise” and the policy’s many exemptions both show that the City’s interest cannot be compelling. And it claims that the City’s categorical freeze on CSS referrals was not narrowly tailored to meet any City interest, because the move meant that CSS could not place children in already-certified homes, and because the City could instead simply require CSS to refer same-sex couples to another FFCA. (CSS maintains that it already has a policy to do this.)
(The government weighs in to support CSS on this point, and this point only. It argues that the City’s policy targets CSS’s exercise of religion and fails strict scrutiny for many of the same reasons. Notably, the government does not argue that the Court should overrule Smith. It also does not argue that the City violated CSS’s free speech.)
The City responds that its nondiscrimination policy is a neutral law of general applicability, and that it easily satisfies Smith’s rational basis review. The City starts by claiming that it has “significantly greater leeway” in directing its own employees and contractors than when it regulates private individuals. It says that this “extra power” applies with full force to this case, and that the Court should “be especially hesitant to infer anti-religious animus from stray remarks of government officials.”
The City argues that its nondiscrimination requirement is generally applicable and neutral with regard to religion. It says that every FFCA contract contains an identical nondiscrimination requirement, and (contrary to CSS’s understanding) that DHS has no authority to make exceptions and, indeed, has never done so. The City contends that the policy contains “no trace of religious hostility,” and that CSS wrongly infers hostility “from the statements of persons who played no role in the decisionmaking process and from events far removed from the relevant decisions.”
Finally, the City argues that its nondiscrimination requirement does not require CSS to do anything contrary to its religious beliefs. In particular, the City says that neither the policy nor state law requires CSS “to endorse a couple’s relationship when certifying them as qualified foster parents.”
CSS argues that the City compels it to support nondiscrimination in violation of its right to free speech. CSS says that the City requires CSS, as a condition of participation in the foster care system, to issue written certifications of potential foster parents that “evaluat[e] and endors[e] same-sex and unmarried cohabitating relationships.” CSS maintains that this is “private speech,” based on Commissioner Figueroa’s testimony that the City has “nothing to do with” home studies, and does not control their content. CSS claims that the City violated its free speech by revoking its contract and attempting to “leverage a program it pays for to compel speech it does not pay for.” CSS claims that the City cannot justify these violations under strict scrutiny, for the same reasons that it cannot justify its violation of the Free Exercise Clause under strict scrutiny, above.
The City counters that its nondiscrimination policy simply does not compel CSS to say anything about the validity of same-sex relationships. Instead, the City claims that the policy simply regulates CSS’s conduct—not to discriminate against foster parents based on their sexual orientation.
CSS argues that the Court should overrule Smith and its rational basis review test. CSS claims that the Court designed the Smith test to apply when “legislatures make general laws and courts apply them.” But it says that government officials “often infringe religious exercise with non-neutral, non-general laws, and courts mistakenly apply Smith anyway.” (CSS contends that this is exactly what the City and the Third Circuit, respectively, did in this case.) CSS claims that the Smith test is therefore not an administrable standard, and that none of its predictions about its administrability came true. Moreover, CSS asserts that the Smith test lacks support in the text, history, and tradition of the Free Exercise Clause. It says that courts have done much better applying a higher level of scrutiny under the Religious Freedom Restoration Act, the Religious Land Use and Institutionalized Persons Act, and similar state laws, and it argues that the Court should replace the Smith test with strict scrutiny, or at least a more rigorous test based on the “purpose and history” of the Free Exercise Clause. CSS maintains that under a proper heightened standard, the City’s move to freeze its contract would fail.
The City counters that the Court should not overrule Smith. The City says that this case is “an extremely poor vehicle to reconsider Smith,” because it involves government contracting (not direct government regulation) and because the City’s nondiscrimination policy satisfies strict scrutiny, anyway. (The City and intervenor Support Center for Child Advocates and Philadelphia Family Pride say that banning discrimination in its FFCA contracts is narrowly tailored to achieve the compelling government interests of eliminating discrimination based on sexual orientation and ensuring that children in foster care have access to all qualified families.) Moreover, it claims that the Smith test “has firm support” in the original meaning of the Constitution, and that it “has served as the predicate for three decades of precedents and legislative enactments.”
This case pits a plaintiff’s right to free exercise of religion against the government’s power to ban discrimination by sexual orientation—a tension that is increasingly familiar in today’s politics and constitutional law. Under existing free-exercise law, in Smith, a plaintiff’s religious rights would almost certainly give way to a government’s categorical ban on discrimination. But if a plaintiff can demonstrate that a government’s ban is not generally applicable or neutral with regard to religion, or that a government official targeted or exhibited hostility toward the plaintiff’s religion, then a plaintiff’s free-exercise claim would almost surely prevail.
The Court last addressed this tension just three Terms ago, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018). In that case, a baker claimed that Colorado’s ban on discrimination would require him to bake a wedding cake for a same-sex couple in violation of his right to free exercise. The Court, in a seven-to-two ruling, held that members of the Colorado Civil Rights Commission exhibited hostility toward the baker’s religion in considering his case, and that the Commission therefore violated his free-exercise rights. The Court, however, did not say whether Colorado’s anti-discrimination law would violate the baker’s religious rights without that kind of hostility, under the Smith test. (We expected to see other similar challenges like this, especially in the wake of Obergefell v. Hodges, 135 S. Ct. 2071 (2015), where the Court struck state laws that banned same-sex marriage. But the Court has not (yet) taken these cases. In fact, the Court earlier this month declined to take up the appeal of Kim Davis, the Kentucky clerk who refused to issue marriage licenses to same-sex couples because of her religious beliefs. Justices Clarence Thomas and Samuel Alito issued a strong statement on the Court’s denial of certiorari that took aim at Obergefell and elevated Davis’s religious claim. Davis v. Ermold, 2020 WL 5881537 (Oct. 5, 2020).)
Masterpiece Cakeshop and Fulton well illustrate the increasingly familiar tension between nondiscrimination by sexual orientation and free exercise. Fulton now gives the Court another shot to reckon with it.
The parties in Fulton frame at least some of their free-exercise arguments around Masterpiece Cakeshop. CSS says that the City exhibited exactly the same kind of hostility toward religion that members of the Colorado Civil Rights Commission exhibited against the baker in that case. The City, for its part, contends that its officers did not exhibit this kind of hostility, and that, in any event, those officers weren’t in the decisionmaking loop. The City also says that the Court should grant greater leeway to the City in regulating its contractors than the Court granted the Colorado Civil Rights Commission in regulating a private person (the baker).
If the Court sees Fulton through the lens of Masterpiece Cakeshop, these similarities and differences will matter. A ruling for CSS could continue the Court’s trend toward increasing free-exercise rights, while a ruling for the City could provide an important backstop to Masterpiece Cakeshop. Either way, though, if the Court sees Fulton through the lens of Masterpiece Cakeshop, it could retain the Smith test.
But if the Court also tackles the Smith issue, the case could be even more important. Smith was a hotly controversial ruling from the start, provoking legislative responses from the federal government (in the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act) and states (in “mini-RFRAs”). The case remains controversial today. Moreover, the issue comes to the Court as it has moved steadily in recent years to privilege the right to free exercise of religion. For these reasons, the issue seems well teed-up for the Court. If so, Fulton could accelerate the Court’s trend toward greater and greater religious rights, and even provide a capstone to the Court’s cases in this area by overruling Smith. At the same time, Fulton could restrict, at least to some degree, governments at all levels from enacting and enforcing generally applicable laws, like the nondiscrimination policy at issue in this case. But on the other hand, as the City points out, this may not be the right case for the Court to take such a significant step.
As to CSS’s free speech claim: don’t look for the Court to hang its hat here. The claim itself is weak; it’s overshadowed by the free-exercise issues; and the parties did not heavily brief it. Free speech may have been an obligatory adjunct to CSS’s claims (as it was in the baker’s case in Masterpiece Cakeshop), but this case is much more likely to be significant for what it’ll say about free exercise.
Thursday, October 8, 2020
The Trump Administration yesterday filed a motion at the Supreme Court to stay, pending appeal, a district court's order directing the government to continue census operations until October 31. The filing is just the latest in the ongoing efforts of the Trump Administration to rush census operations amid a pandemic. The Administration says that it needs to speed efforts in order to meet the December 31 statutory deadline for reporting census data to the President.
The case is important, because congressional apportionment, legislative districts, and federal funds are all tied to census data. The numbers that come from the 2020 census will lock these in for the next ten years. Moreover, the Trump Administration seems set on the December 31 deadline so that President Trump (and not a potential President Biden) would certify the census numbers to Congress--and possibly try not to include unauthorized noncitizens in the count.
The case arose when the Trump Administration reversed course on a revised census plan that would extend census data collection through October 31 in light of data-collection delays resulting from Covid-19.
The Census Bureau adopted the plan after it lost 47 days of data-collection efforts, and anticipated additional difficulties in collecting data, due to the Covid-19 pandemic. The plan set the end of collection efforts at October 31, 2020. But this would mean that the Bureau would likely not meet the December 31 statutory deadline for reporting data to the President.
So on August 3, the Administration abruptly issued a "Replan," which set the end of data-collection efforts at September 30. The Replan condensed the total time to conduct the census to 49.5 weeks--4.5 weeks shy of the pre-Covid schedule of 54 weeks, and 22 weeks shy of the extended Covid schedule.
A group of organizations, cities, counties, and tribal groups sued to stop the Replan, arguing that it violated the Administrative Procedure Act and the Enumeration Clause. The district court ordered the Replan halted, order data-collection efforts to extend to October 31, and enjoined the Administration from implementing the September 30 and December 31 deadlines.
The Ninth Circuit denied an administrative stay, and, yesterday, partially stayed the district court's order pending appeal. The Ninth Circuit stayed the district court's order enjoining the Administration from complying with the statutory December 31 deadline--the Ninth Circuit said that a court shouldn't order the government to ignore a statutory deadline--but denied a stay of the order enjoining the September 30 stop date. This meant that the Administration would have to continue census data-collection through October 31.
Soon after the Ninth Circuit ruled, the Administration filed for a stay with the Supreme Court. The Administration argued that the APA didn't apply, that in any event the plaintiffs didn't prove a violation of the APA, and that the Administration couldn't meet the December 31 statutory deadline if data collection extended through October 31.
In other words, the Administration says that it couldn't have been arbitrary and capricious (and therefore in violation of the APA) for the Administration to halt data-collection efforts at an earlier date in order to meet the statutory deadline of December 31.
Wednesday, October 7, 2020
The Second Circuit today flatly rejected President Trump's case challenging the NY grand jury subpoena for his financial records. The ruling follows a summer Supreme Court decision saying that the grand jury was not categorically (and constitutionally) barred from seeking the President's financial records.
The ruling in Trump v. Vance deals a serious blow to President Trump and his efforts to keep his financial records under wraps. (The subpoena goes to far more than President Trump's taxes.) But the President will surely seek to appeal.
The ruling says that President Trump failed even to plausibly plead (under the Iqbal and Twombly pleading standard) that the grand jury subpoena was overbroad or issued in bad faith. At the same time, it noted that going forward the President might need some accommodations in state criminal proceedings in order to avoid intruding on the President's Article II responsibilities. (The President didn't raise categorical constitutional claims in this round--the Supreme Court already rejected those claims in its ruling this summer--and did not specifically claim that complying with this subpoena would interfere with his Article II responsibilities.)
The court's decision was issued per curiam (without naming the judges involved), suggesting that the case was easy and that the ruling was perfunctory.
Monday, October 5, 2020
On the first Monday in October, the United States Supreme Court begins its Term, this time with only eight of the usual nine Justices given Justice Ginsburg's death in September.
In today's Order List of the Term, the Court denied certiorari in Davis v. Ermold to the Sixth Circuit's decision that court clerk Kim Davis did not have immunity from a damages suit. (Recall that in 2017 the Sixth Circuit allowed the damages suit to proceed). Kim Davis achieved notoriety as a clerk who refused to issue a marriage license to a same-sex couple despite the United States Supreme Court's ruling in Obergefell v. Hodges.
Two Justices on the Court who dissented in Obergefell — Thomas joined by Alito — used today's denial of certiorari to issue a "statement" (it is not a dissent as the issue is not "cleanly presented" in this case) to cast doubt on the continued validity of Obergefell:
this petition provides a stark reminder of the consequences of Obergefell. By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix. Until then, Obergefell will continue to have “ruinous consequences for religious liberty.”
Two Justices who joined the slim 5-4 majority in Obergefell — Ginsburg and Kennedy — are no longer on the Court. This statement sends a strong message to courts and advocates that the the Court would contemplate overruling or severely limiting Obergefell should the issue be more "cleanly presented."
Sunday, October 4, 2020
Supreme Court to Hear First Amendment Challenge to Political Balancing Requirements for State Courts
The Supreme Court will hear oral arguments tomorrow, the opening day of October Term 2020, in Carney v. Adams. The case tests whether Delaware's "political balancing" requirements for its courts violate the First Amendment. A ruling on the merits could have implications for a variety of state and federal commissions that have similar balancing requirements. But first the Court'll need to address the plaintiff's standing . . . .
Here's my Preview of the case, from the ABA Preview of United States Supreme Court Cases, with permission:
Case at a Glance
Delaware attorney James Adams, a registered Independent, considered applying for a judicial position on the state courts. Despite his interest, however, Adams did not apply, because he believed that, as an Independent, he would not qualify. Adams pointed to a state constitutional provision that capped the number of judges from a political party to no more than a bare majority on the courts (the “bare-majority” requirement) and that, for some courts, required that the other judges come from the other major political party (the “major-party” requirement). Instead of applying for judicial vacancies on these courts, Adams sued, arguing that the provision violated the First Amendment.
According to the Supreme Court, the First Amendment permits the government to use a person’s political affiliation as a qualification for “policymaking” positions, but generally not for lower-level government jobs. This case tests how that principle applies to Delaware’s political balancing provision for judges. But before we get to the merits, the case raises a significant question whether Adams even has standing to sue.
- Does Adams have standing to sue, given that he declined to apply for judicial vacancies, and given that he would have qualified for vacancies on two of Delaware’s courts?
- Does the First Amendment prohibit a state from specifying and defining the composition of its courts by reference to the judges’ political parties?
- Is the provision of Delaware’s constitution that caps the judges from one political party on three of the state’s courts severable from the provision that requires that all judges on those courts are members of a major political party?
Delaware’s “Bare Majority” and “Major Party” Political Balancing Requirements
In 1897, delegates to the Delaware constitutional convention sought to reduce the influence of politics on the state’s judiciary. In order to achieve this goal, delegates recommended a political balancing requirement for the state’s principal courts. Under the requirement, these courts could not have more than a single-judge majority from any one political party. The state adopted the bare-majority proposal, and Delaware has had some form of a bare-majority requirement for its principal courts ever since.
In 1951, the state modified the political balancing requirements to exclude third party and unaffiliated voters from applying to serve as judges on the Supreme Court, the Superior Court, and the Chancery Court, the so-called “business courts.” The change retained the existing bare-majority requirement, but it added a major-party requirement that limited service on these courts only to members of a major political party, Republican or Democrat. The major-party requirement helped to ensure that a governor could not side-step the bare-majority requirement by appointing a nominal third-party or independent judge to a seat reserved for the other side. The change stuck through several amendment processes, including in 2005.
Today, Article IV, Section 3, of the Delaware Constitution specifies that these three courts shall include no more than a single-judge majority from one major political party, and that all other judges shall be from the other major political party. (If one of these courts has an even number of judges, the provision specifies that the judges on that court shall be equally divided, Republican and Democrat.)
The same section also specifies that the Family Court and the Court of Common Pleas shall include no more than a single-judge majority of the same political party. (If one of these courts has an even number of judges, the provision specifies that no more than one-half of the judges shall be of the same political party.) But in contrast to the provision for the business courts, the provision for these two courts does not include a major-party requirement. As a result, members of non-major political parties, including independents, may serve on these two courts, so long as these courts satisfy their bare-majority requirement.
Delaware’s Judicial Nominations
Since 1978, Delaware governors have relied on recommendations from a judicial nominating commission to identify candidates to appoint to judicial vacancies. Under this practice, the commission, which is politically balanced and comprised of both lawyers and non-lawyers, recommends three candidates for each judicial vacancy. The governor then selects one of the three nominees for appointment. If the governor is not satisfied with the commission’s recommendations, the commission may generate another list of recommendations.
When a judicial position becomes available, the commission provides public notice of the position, the salary, and the job requirements, including the party membership, in order to comply with the bare-majority and major-party requirements, discussed above.
James Adams’s Non-Application for a Judicial Position
In December 2015, Delaware attorney James Adams retired and went on “emeritus” status with the Delaware state bar. Sometime in late 2016 or early 2017, Adams decided to explore judicial vacancies. He reactivated his full state bar membership and changed his party affiliation from Democrat to Independent. Adams said that he would have considered and applied for any available positions on any of the state’s courts. (Adams said he changed his party affiliation because he grew disenchanted with the Delaware Democratic Party and considered himself “more of a Bernie [Sanders] independent.” The state, in contrast, suggests that he changed his party only to bring this suit. Adams also claims that he declined to apply for judicial vacancies in the past, because he would not have qualified as a Democrat. The state disputes this and says that he would have qualified for at least ten judgeships.)
Rather than applying for any vacancies, however, Adams brought this suit. He claimed that the political balancing requirements rendered him ineligible for available vacancies based on his Independent political status, and argued that the requirements violated the First Amendment. The district court agreed and struck both the bare-majority requirement and the major-party requirement as they applied to all five courts.
The Third Circuit affirmed in part and reversed in part. The court ruled that Adams lacked standing to challenge the bare-majority requirements for the Family Court and the Court of Common Pleas, because the bare-majority requirements did not bar his appointment as an Independent to those courts. The court also accepted that Adams lacked standing to challenge the bare-majority requirement for the business courts for the same reason. On the merits, the court held that the major-party requirement for the business courts violated the First Amendment. It ruled that the bare-majority requirement failed, too, because (notwithstanding Adams’s lack of standing to challenge it) the bare-majority requirement was not severable from the major-party requirement. This appeal followed.
There are three issues in this case. Let’s take them one at a time.
In order to sue in federal court, plaintiffs must establish that they have suffered, or imminently will suffer, a concrete and particularized injury that was caused by the challenged law. Here, the state argues that Adams failed to establish a sufficient injury to challenge the political balancing requirements. The state says that the bare-majority requirement could not possibly injure Adams, because he does not belong to either political party. Moreover, the state contends that Adams failed to establish that he suffered past injuries based on the bare-majority requirement, because he would have qualified “for at least ten judgeships.” The state asserts that Adams failed to establish that he will suffer future harms based on the major-party requirement, because he cannot say with certainty that the major-party requirement will disqualify him from future consideration. Finally, the state notes that Adam declined to apply for any positions as an Independent, and that any harm he suffered is therefore “self-inflicted” and non-cognizable.
Adams counters that he only has to allege that the political balancing requirements chilled his exercise of his First Amendment right to affiliate (or not) with a political party (and not that the state actually denied his application). He says he easily meets this standard, because he alleged that he would have applied for judicial vacancies but for the balancing requirements’ political discrimination. He claims that the requirements force him “to choose between the right to seek a judgeship and violating his political conscience by re-registering as a Democrat or a Republican in order to be considered.” And he contends that a decision striking the political balancing requirements would allow him to submit an application as an Independent and have it “accepted and considered on its own merit.”
The Political Balancing Requirements
The state argues that it may consider party affiliation of state judges consistent with the First Amendment. It contends that under Supreme Court precedent, the First Amendment only limits a state from considering political affiliation for “low-level public employees,” not for “policymaking” jobs. The state asserts that the “ultimate inquiry” is “whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti v. Finkel, 445 U.S. 508 (1980).
The state says that its use of party affiliation for judges easily meets these tests. It contends that judges occupy “policymaking” positions, because, among other things, they “develop the common law.” And it claims that party affiliation is “an appropriate requirement” for the job, “[b]ecause party affiliation is a proxy for how would-be judges might understand their role,” and because it helps to ensure bipartisan decisionmaking on the bench. The state asserts that the Third Circuit adopted an unduly narrow definition of “policymaking”—one that does not square with Supreme Court precedent.
Finally, the state argues that even if its political balancing requirements are subject to heightened First Amendment scrutiny (because judgeships are not “policymaking” positions), they pass muster. The state says that they are narrowly tailored to ensure a politically balanced judiciary, and that this, in turn, serves its compelling interest of preserving “public confidence in judicial integrity.”
Adams counters that the balancing requirements violate the First Amendment, because “[p]olitical affiliation is not only not necessary for the work of a judge, it also is inconsistent with the role of a judge.” Adams claims that judges only make “policy” insofar as they rule on the immediate cases before them, and so are not policymakers under Supreme Court precedent. Moreover, he says that judges are supposed to render their decisions without consideration of politics, and so their political affiliation is not “an appropriate requirement” for their office. In short, he contends that the state’s balancing requirements run exactly against the state’s own interests in a politically neutral judiciary.
The state argues that the bare-majority requirement is severable from the major-party requirement, and that the Court can therefore strike the major-party requirement (if it must) without also striking the bare-majority requirement. As an initial matter, the state asserts again that Adams lacks standing to challenge the bare-majority provision, and argues that he cannot use its non-severability from the major-party requirement to create standing to challenge it. Such a rule, the state contends, “would allow parties to obtain sweeping relief against whole statutory schemes even if injured by only part of them.” Moreover, the state claims that the bare-majority requirement can stand alone, independent of the major-party requirement, as it stood for 54 years before the state adopted the major-party requirement, and as it currently stands for the state’s Family Court and Court of Common Pleas. According to the state, “[t]here is simply no evidence that the Delaware Constitution’s framers would have preferred no political balance provisions at all to a system with just the bare majority provision.”
Adams counters that the state failed to raise the severability argument before the lower courts, and so waived it. But if the Court rules on severability, Adams argues that the major-party requirement is not severable from the bare-majority requirement, because the two provisions “are textually intertwined” and necessarily work together. He says that the history of the bare-majority requirement reveals that “the Legislature had only Democrats and Republicans in mind.” Moreover, he claims that the major-party requirement is necessary for the bare-majority requirement to achieve its goals. He contends that the major-party requirement “has no independent justification for its existence,” and so the two are not severable. According to Adams, this means that when the Court strikes the major-party requirement, it must also strike the bare-majority requirement.
First and foremost, there is a circuit split on an issue central to the merits question in this case, whether judges are “policymakers.” The Third Circuit said no, but the Second, Sixth, and Seventh Circuits (and, according to the state, “every other court to address the issue”) has said yes. Under Court precedent, if judges are “policymakers,” then the state can use their political affiliation as a qualification without violating the First Amendment. If they are not, then the state must show that its use of political affiliation is necessary to achieve a compelling government interest. This is a high standard, but one that the state argues, in the alternative, that it can satisfy. If the Court reaches the central merits question in this case, it may resolve the circuit split and determine whether judges are “policymakers” that fall under this exception to the First Amendment.
I say “may,” because it’s not entirely obvious that the Court’s precedents establishing the “policymakers” standard apply here. Those precedents deal more directly with the problem of political patronage, that is, when the government doles out jobs to politically friendly allies. But Delaware’s stated interest is very different here, to reduce the influence of politics in the judiciary by mandating a non-partisan, or, in this case, a bi-partisan, process. According to the State and Local Government Associations, as amicus in support of the state, merely applying the Court’s patronage precedents could threaten similar state and local government balancing requirements far beyond the judiciary. According to amicus, this could affect state and local governments’ efforts to reduce the influence of politics in a variety of policy areas.
But all that’s only if the Court reaches the central merits question, whether Delaware’s balancing provision violates the First Amendment. Before the Court can address this issue, it must determine that Adams has standing to sue. Given that Adams declined to apply for several positions for which he apparently qualified (either as a Democrat, in the past, or as an Independent, in the present and future), it seems likely that the Court may simply dismiss the case for lack of standing, vacate the Third Circuit’s ruling, and wait for a more appropriate case to address the hard question of whether Delaware’s political balancing provision violates the First Amendment.
Thursday, October 1, 2020
Check out this in-depth story on the history of claims of voter fraud, and how those claims affect the right to vote. From the NYT.
Wednesday, September 30, 2020
The Seventh Circuit flatly rejected an appeal by the Wisconsin legislature and the state and national Republican Party of a lower court's order that the state extend voting deadlines in light of Covid-19. The ruling leaves the extended deadlines in place and ends the case, unless the intervenors can persuade the full Seventh Circuit or the Supreme Court to step in.
The case arose when the Democratic National Committee and others sued the state, arguing that its statutory voting deadlines violated the right to vote. The district court agreed, and ordered extended deadlines.
State executive officials declined to appeal. But the RNC, state Republicans, and the state legislature moved to intervene to defend the state's statutory deadlines (and to oppose the district court's order extending them), and brought this appeal.
The Seventh Circuit's ruling says that these parties don't have standing to appeal. The court said that the state and national Republican parties don't have standing, because neither group contended that the district court's ruling would affect their members, and because neither group suffered an injury itself.
Legislative standing was a little different. The court acknowledged that a legislature can litigate in federal court when it seeks to vindicate a legislative interest. But here the court said there was none. "All the legislators' votes were counted; all of the statutes they passed appear in the state's code."
The legislature argued that state law authorized it to defend against challenges to state statutes. But the court observed that the state supreme court previously ruled that this provision violated the state constitution, which "commits to the executive branch of government [and not the legislative branch] the protection of the state's interest in litigation."
The court gave the putative appellants a week to show cause why the court shouldn't dismiss the case.
Looking for a plain-English explainer on how a Justice Amy Coney Barrett could affect the Affordable Care Act, or Obamacare, in a case scheduled for oral argument on November 10? Here you go:
Saturday, September 26, 2020
Here's SCOTUSblog's resource page:
Here's the Seventh Circuit opinions website, which allows you to search opinions by author: