Court Torpedoes Biden Policies on Border, Health

           The Supreme Court threw judicial restraint out the window last week [Aug. 24-26] with hastily considered decisions that torpedoed Biden administration policies on border security and public health. The rulings in two “shadow docket” cases, issued without full briefing or oral argument, forced the administration to reinstitute the so-called “remain in Mexico” policy for asylum applicants and scrapped the administration’s policy to protect financially strapped tenants from evictions during the COVID-19 pandemic.

            Elections have consequences, it is often said, but apparently not when the unelected Supreme Court takes charge of contentious policy issues. The Biden administration’s O-for-two batting average in its first shadow docket cases is in stark contrast to the Trump administration’s record of prevailing in two-thirds of the unprecedented number of emergency applications that Trump’s lawyers brought to the Court over a four-year period.

            Chief Justice Roberts may believe that the justices shed their partisan backgrounds after donning their black robes, but the record of the Republican-majority Court strongly suggests the opposite. As one telling example, the nine justices split precisely along partisan lines in Alabama Ass’n of Realtors v. Health and Human Services on a straightforward question of statutory interpretation in striking down the CDC’s moratorium on evictions in areas with high incidence of COVID transmission.

            In issuing the moratorium, the CDC relied on a broadly phrased grant of authority in a public health statute “to make and enforce such regulations as . . . are necessary to prevent the introduction, transmission, or spread of communicable diseases . . .”

            The code section’s opening sentence is followed by a second sentence that lists fumigation, pest extermination, and destruction of infected animals or articles as some of the steps authorized. The six Republican-appointed justices who provided the votes for the unsigned decision construed that list to limit the permissible steps, while three Democratic-appointed justices in dissent applied a different maxim of statutory construction to reach the opposite conclusion that the list was illustrative, not exhaustive.

Writing for the three liberal justices, Breyer noted the historical precedent that New York City had imposed limits on evictions at the height of the Spanish flu epidemic. “If Congress

had meant to exclude these types of measures from its broad grant of authority,” Breyer reasoned, “it likely would have said so.”

            In short, a “plain text” approach to the statute in question could have supported either of the two possible outcomes in the case. The Court’s majority – presumably, the six Republican-appointed conservatives – resolved the question by finding that the “balance of equities” favored the landlords’ finances over the tenants’ health and the government’s interest in limiting community spread.

            To be clear, the choice between those two turned not on law, but on policy. In a tweet, Eric Segall, a law professor at Georgia State University, aptly suggested that the Court “should stay out of policy disputes and stay in its lane.”

Liberal justices were oddly silent two days earlier when the Court effectively forced the Biden administration to adopt a Trump-era policy – misleadingly labeled as “migrant protection protocols” -- to force asylum applicants to wait in Mexico while authorities in the United States consider their applications.

The issue in Biden v. Texas et al. was whether how far the Biden administration needed to go in elaborating the reasons for rescinding the Trump administration’s policy on asylum applicants. A Trump-appointed federal judge in Texas agreed with the red states challenging the administration that Biden’s Department of Homeland Security had been “arbitrary and capricious” in rescinding the policy.

In fact, DHS secretary Alejandro Mayorkas had written a seven-page memorandum detailing the reasons for his decision—specifically, that the program was unjustified by the resources required to implement it and incompatible with the  administration’s border strategy and foreign-policy objectives. Judge Matthew Kacsymaryk found Mayorkas’s reasons inadequate and ordered the administration to reinstitute the disfavored policy.

The administration asked Kacsymaryk to delay the injunction, but he refused. The federal appeals court in Texas similarly refused to stay the ruling to give the administration time to develop an orderly plan to restart a policy suspended seven months earlier and unenforced for Trump’s final months in office.

At the Supreme Court, the administration quoted an assistant DHS secretary as saying that it would be “near impossible” to re-establish the policy by the deadline that the judge had set. The administration also quoted a State Department official as warning that resumption of the policy would create “a humanitarian and diplomatic emergency.”

The Trump administration had come to the Court in eleven cases with similar pleas to get out from under adverse rulings in lower courts. And each time the Court obliged.     But the Court declined to give the same consideration to a Democratic president, elected with a popular vote majority.

Instead, the Court refused the administration’s plea with a single paragraph that found the administration was unlikely to show that it had not been “arbitrary and capricious” in rescinding the previous policy. Others have written at greater length than allowed here about the irony of the Court’s decision to take over immigration policy, an area traditionally left to the executive branch, not the courts. Here, as one example, is Ian Milhiser’s excellent analysis.

 

More Transparency Urged for 'Shadow Docket'

             With the Supreme Court on recess and First Monday still six weeks away, there was no news from One First Street last week until the evacuation of the building after the Capitol Hill bomb scare on Thursday [Aug. 19]. The Supreme Court press corps was stirred into action late Friday night [Aug. 20], however, after new “shadow docket” filings in two long running disputes over the Trump administration’s “remain in Mexico” policy and the Biden administration’s “eviction moratorium.”

            The reporters still on watch that night quickly produced stories on the Biden administration’s effort to delay a federal district court’s order that it reinstitute Trump’s “remain in Mexico” policy for asylum applicants. The administration’s filing in Biden et al. v. Texas et al. (21A21), asked the Court to stay the order issued by a Trump-appointed judge in Texas even though a three-judge Fifth Circuit panel had rejected the government’s application for a stay just one day earlier.

            The reporters also had to turn out instant coverage of the latest plea by landlords seeking to block the eviction moratorium ordered by the Centers for Disease Control as an emergency pandemic measure. The Alabama Association of Realtors was asking the Court to lift a district court judge’s decision to stay his ruling against the moratorium pending the government’s appeal; a D.C. Circuit panel refused to lift the stay, prompting the realtors’ group to ask again at the Supreme Court in a filing called Alabama Ass’n of Realtors v. Dep’t of Health and Human Services (21A23).

            The so-called “shadow docket,” an obscure area of Supreme Court practice until six years ago, gained increased attention over the past four years as the Trump administration succeeded in using the procedures in a succession of contentious disputes to rescue the government from adverse rulings by lower federal courts. The administration succeeded, for example, in clearing the way for federal executions for the first time in seventeen years by persuading the justices to stay lower court decisions that had blocked the lethal injection protocol the government planned to use.

            Credit for first raising concerns about the “shadow docket” goes to William Baude, a law professor at the University of Chicago and former Supreme Court law clerk, who coined the phrase in an op-ed published in The New York Times on Feb. 3, 2015, under the headline “The Supreme Court’s Secret Decisions.” Baude illustrated his concern about the obscurity surrounding the procedures by citing what he depicted as inconsistent decisions in advance of the 2014 election in regard to voter ID laws enacted in two states: Wisconsin and Texas. Baude noted that the Court had blocked the Wisconsin law but had allowed Texas to implement a similar measure, without an explanation in either of the rulings.

            Stephen Vladeck, a law professor at the University of Texas in Austin, added to the concern over the past year by compiling the Trump administration’s unprecedented use of shadow docket procedures as a frequent litigation strategy after adverse rulings in lower federal courts. Vladeck’s list showed forty-one applications for emergency relief from the Court during Trump’s four-year presidency, compared to only eight such applications in the sixteen years of the Bush and Obama presidencies.

            With its fortified conservative majority, the Court rewarded the Trump administration by granting applications in full in twenty-four instances and in part in four others: for an overall success rate of 70 percent, according to Vladeck’s count. The administration’s success in shadow docket cases may have played a part in encouraging houses of worship to use the same procedure to bring “free exercise” challenges to the Court to try to nullify pandemic-related limits on attendance at worship services imposed by governors in several states. The Court’s divided decisions in a trio of

            The Court’s divided decisions in a trio of such cases during the 2020 term struck down the restrictions on the ground that they allowed larger crowds at commercial establishments than at worship services. Together, the three decisions appear to have established a new precedent to make it easier for religious organizations to challenge laws or regulations that have incidental effects on religious practices.

            Testifying to a House Judiciary subcommittee on Feb. 21, Vladeck criticized the increased use of shadow docket procedures compared to the more thorough consideration given to the Court’s so-called “merits docket” – with full briefing by both sides, oral arguments, written opinions, and a breakdown of the justices’ individual votes. Without those formal procedures, Vladeck explained to the lawmakers, “these rulings come both literally and figuratively in the shadows.”

.           Shadow docket cases begin with an application by the losing party in a lower court case asking the justices to intervene in advance of the normal appellate process to block the adverse decision from going into effect. The applications are submitted to the justice responsible for the circuit where the case originated, who can rule on the matter unilaterally or can refer the matter to the full Court for consideration.

Earlier this month, Justice Amy Comey Barrett acted on her own in rejecting a plea by Indiana University students to block the school’s vaccine mandate for students, faculty, and staff. Barrett held on to the application in Klaassen et al. v. Trustees, 21A15, for six days without asking for the school to reply and without referring the matter to the full Court before denying the application on Aug. 12 without any written explanation. The case illustrates to some extent Baude’s suggestion that the Court ordinarily can provide at least some explanation of the reason for granting or denying an application in order to provide some guidance to lawyers and lower court judges.

            The two most recent filings may come to a head early this week: Justice Alito granted the administration a temporary stay in the “stay in Mexico” case through Tuesday (Aug. 24) and asked Texas and the other states to reply to the government’s request that day. The eviction moratorium case went to Chief Justice Roberts, who supervises the D.C. Circuit and who asked for the administration to reply on Monday.

Vaccine Mandate Survives High Court Test

          Anti-vaxxers took their best shot last week at persuading the Supreme Court to establish constitutional limits on the growing number of vaccine mandates being instituted by schools and colleges, employers, and commercial establishments. The eight Indiana University students who took their case against the school’s mandatory vaccination policy to the Supreme Court lost badly, just as they had lost in a federal court in Indiana and at the U.S. Court of Appeals for the Seventh Circuit.

            Justice Amy Comey Barrett, who is supervising justice for emergency appeals from the Seventh Circuit, rejected the students’ plea to enjoin the university’s policy without asking the school to reply and without referring the case to any of the other justices. Without a written ruling, Barrett’s action will not settle the legal issues surrounding vaccine mandates, but it gives no encouragement to any of the other legal challenges already percolating in lower court or to future cases either.

            The student plaintiffs in Klaassen v. Trustees, represented by the conservative lawyer James Bopp of campaign finance litigation fame, argued in their brief tto the Court that as adults, they have “a constitutional right to bodily integrity, autonomy, and of medical treatment choice in the context of a vaccination mandate.” The school’s policy, announced on May 21, requires faculty, staff, and students to take a COVID vaccine, unless granted a religious or medical exception. Students who refuse are subject to “virtual expulsion,” according to Bopp’s brief, including canceled class registration and restrictions from participation in any on-campus activity.

            The first-named plaintiff, Ryan Klaassen, an incoming sophomore, in fact had been granted a religious exemption from the policy, but Bopp argued in the brief that the exceptions are available only under “extremely limited” criteria, such as a documented allergy to the vaccine or medical deferrals, but not for “natural immunity” or full recovery from previous infection. Bopp claimed that IU is the only school in the state to institute a universal vaccine mandate for students and faculty and noted that the state has not adopted a vaccine or mask mandate either.

            Legally, the case against vaccine mandates requires critics to attack a century-old Supreme Court precedent Jacobson v. Massachusetts (1905), that upheld a public health measure adopted in Cambridge, Massachusetts, during a smallpox epidemic, that imposed a criminal penalty of $5 on anyone who failed to get a smallpox vaccination. Writing for the 7-2 majority, Justice John Marshall Harlan discounted Jacobson’s unsubstantiated claims about the risks of medical injury from vaccinations. He also noted court rulings from other states, including Indiana, that upheld compulsory vaccinations for public school pupils.

            Harlan noted that Cambridge’s Board of Health had adopted the regulation, under authority of a state law, when smallpox was prevalent and increasing in the city. On that basis, Harlan upheld the city’s authority to impose the requirement. “It is within the police power of a State to enact a compulsory vaccination law,” Harlan wrote, “and it is for the legislature, and not for the courts, to determine in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of the public health.”
            The Supreme Court itself has not reconsidered Jacobson or voiced doubts about the ruling, but critics such as South Texas University law professor Josh Blackman describe it disparagingly as though it is a relic of the constitutional dark ages. “This is a case that has not aged well,” Blackman remarked as the conservative spokesman on a National Constitution Center podcast last week [Aug. 13]. A second panelist, Wendy Mariner, a health law specialist at Boston University Law School, conceded as well during the podcast that Jacobson predated late 20^th-century decisions recognizing personal autonomy over medical decisions.

            In a co-authored journal article published in 2005, Mariner acknowledged the changed legal background for public health measures. “The states’ sovereign power to make laws of all kinds has not changed during the past century,” Mariner wrote. “What has changed is the US Supreme Court’s recognition of the importance of individual liberty and how it limits that power.”

            Despite the changed legal landscape, however, Chief Justice Roberts himself cited Jacobson favorably in his separate opinion in an early case from California, challenging restrictions on attendance at worship services. Roberts cited Jacobson as generally supporting deference to executive orders in the early stages of the pandemic based on the then limited knowledge of the disease. In a later case from New York, Justice Neil Gorsuch sharply criticized Roberts’ use of Jacobson in the California case, which he said invited lower courts “to slacken their enforcement of constitutional liberties while COVID lingers.”

In his own separate opinion in the New York case, Roberts answered Gorsuch’s critique in a testy exchange. In the California case, Roberts specified that he had written only one sentence, with excerpts from Jacobson. “Our Constitution principally entrusts ‘the safety and the health of the people’ to the politically accountable officials of the State to ‘guard and protect.’”

“It is not clear,” Roberts added, “which part of this lone quotation [Gorsuch’s opinion] finds so discomfiting.”

In the podcast, Mariner argued in effect that Jacobson remains good legal authority today for upholding public health policies such as vaccine mandates based on the prevalence of the disease in question, the transmissibility, and the severity. The coronavirus pandemic, she concluded, “meets all three” of those conditions. To get around Jacobson, Bopp asked the Supreme Court to apply the most demanding constitutional standard – strict scrutiny – to vaccine mandates and to find that the university had not produced enough evidence to justify the mandate under that standard. For now, that question is still awaiting an answer.

Time for Justice Department to Put Trump in the Dock

             Donald Trump’s supporters are circulating in the blogosphere a meme that shows Hillary Clinton and Barack Obama as “corrupt politicians” who belong in jail. The crude meme contains no bill of particulars of the crimes that Clinton and Obama supposedly committed.

            By contrast, two former federal prosecutors joined last week [Aug. 5] in laying out a roadmap of federal offenses that Trump may have committed in his fraudulent efforts to overturn the results of the 2020 presidential election. Barbara McQuade, a former U.S. attorney in Michigan, and Joyce White Vance, a former U.S. attorney in Alabama, joined with Harvard’s Laurence Tribe in an op-ed in the Washington Post to urge the Justice Department now to open a criminal investigation of Trump.

An official investigation, the former federal prosecutors point out, would allow prosecutors now to begin obtaining the evidence – phone records, emails, memos, and so forth – to determine whether Trump should be charged. McQuade and Vance are both now law professors at their state university law schools and occasional legal analysts on CNN; Tribe, one of the country’s leading constitutional law experts,  is also a talking head with frequent appearances on CNN and MSNBC.

Regardless of any political bias, the two former prosecutors present a strong case that Trump may have violated federal law with his acknowledged conduct. They cite in particular his threatening phone call to Georgia’s state elections chief to find the votes needed to upset Biden’s victory in the Peach State and his now disclosed phone call to acting attorney general Jeffrey Rosen  asking that the Justice Department announce that the election was “corrupt” and leave the rest to Trump and Republicans in Congress.

            My own instinct as legal affairs reporter was to view Trump’s two phone calls as crossing the line from politics into criminality. With their greater experience with the U.S. Code’s Title 18, McQuade and Vance substantiated my instinct by specifying half a dozen crimes that Trump may have committed:

            Conspiracy. Federal law, the former prosecutors point out, makes it a crime “for individuals to agree to defraud the United States by interfering with governmental functions.” They note that special counsel Robert Mueller included such a charge in the indictment against the Russian Internet Research Agency by accusing the Russians of “impairing, obstructing, and defeating the lawful functions” of government agencies.

            Obstruction of official proceedings. The former prosecutors also suggest that Trump may have joined with his lawyer, Rudy Giuliani, the bombastic Alabama congressman Mo Brooks, and his White House advisers, in an effort to obstruct Congress’s statutory duty to certify the election results on Jan. 6. Trump and his allies, the prosecutors suggest, used disinformation to sow unfounded doubt to try to induce members of Congress to vote against certifying the election results and throw the election into the House of Representatives.

            Racketeering. The former prosecutors also suggest invoking the federal anti-racketeering law known as RICO, which has long since gone beyond its primary purpose of attacking organized crime. A RICO count, they point out, would require the government to show that the office of the presidency was an enterprise affecting interstate commerce and that Trump had committed at least two racketeering offenses. Extortion is one of RICO’s predicate offenses, the former prosecutors point out, defined as “transmitting a threat to harm another’s reputation with intent to extract something of value.” Trump, the former prosecutors recall, suggested in his phone call with Georgia’s election chief Brad Raffensperger that he might have committed a crime and “that’s a big risk to you.” With those details, the former prosecutors suggested, Trump’s phone call “could fit” the definition of extortion.

            Voter fraud and Hatch Act. The former prosecutors also note that an Election Code provision -- 52 U.S.C. § 20511 – makes it a crime to “attempt[ ] to deprive or defraud the residents of a state of a fair and impartially conducted election process.” Moreover, the former prosecutors suggest, Trump’s phone call to Rosen may have violated the Hatch Act, the federal law codified at 5 U.S.C. §7323 that makes it a crime for a federal official to use “official authority or influence for the purpose of interfering with or affecting the result of an election.”

            Insurrection. The former prosecutors also suggest, with a caveat, that Trump might be charged with insurrection – prohibited by 18 U.S.C. §2383 – or seditious conspiracy. But they acknowledge that the Justice Department might hesitate to bring either of those charges on the ground that a court could find Trump’s Jan. 6 speech to be short of the Supreme Court’s definition of “incitement” and on that basis protected by the First Amendment.

            The House of Representatives could include any combination of these possible offenses in yet another bill of impeachment against the former president, but the Senate’s Trump-coddling Republicans would again prevent a conviction. In a court of law, on the other hand, a grand jury indictment would be tried by an impartial jury on the basis of the law and the evidence rather than politics. Tribe and the former prosecutors acknowledge the risk that a criminal investigation of Trump by Biden’s Department of Justice might appear political.

            The former prosecutors emphasize that Trump, out of office, is unprotected by any presidential immunity. “Attempted coups cannot be ignored,” they write in conclusion. “If Garland’s Justice Department is going to restore respect for the rule of law, no one, not even a former president, can be above it. And the fear of appearing partisan cannot be allowed to supersede that fundamental precept.”

Mississippi's "Unclean Hands" in Abortion Case

            Two or three months into the Supreme Court’s new term, a lawyer representing the state of Mississippi will ask the Court later this year to uphold a blatantly unconstitutional abortion law enacted by the state’s legislature three years ago. The Gestational Age Act prohibits a woman from having an abortion after the fifteenth week of pregnancy except in cases of medical emergency or severe fetal deformity. The law directly contravenes the Supreme Court’s decisions that guarantee the right to terminate a pregnancy before a fetus reaches viability, generally defined as after the twenty-third week of pregnancy. .

            Paul Barnes, a private lawyer designated as special assistant attorney general for the case, is unlikely to begin with a candid explanation of the origins of the case, Dobbs v. Jackson Women’s Health Organization. In candor, Barnes ought perhaps to explain that the 2018 law is the Mississippi’s legislature’s latest enactment in efforts extending over two decades to deny Mississippi women reproductive rights guaranteed to them since 1973 under Supreme Court precedents.

            Two lower federal courts unhesitatingly struck down the 2018 law before the state brought the case to the Supreme Court in hopes of undermining or overruling the Court’s decisions dating from the first of those precedents, Roe v. Wade (1973). As long ago as 2004, federal courts struck down one of the legislature’s earlier attempts to deny Mississippi’s women any practical ability to exercise the right of choice guaranteed under Supreme Court precedents.

            The law challenged back then imposed onerous licensing requirements on facilities, such as the Jackson Women’s Health Organization (JWHO), that provided abortion services. In blocking that law, federal judge Thomas Lee rejected the legislature’s claimed justification that the requirement helped protect patients’ health and safety. Lee found instead that the requirement “does nothing to further this putative interest” and that the law’s effect was “to make abortions following the first trimester unavailable to women in this State.”

            Lee’s decision in 2004 anticipated by more than a decade the Supreme Court’s eventual decision to strike down a similar Texas law in Whole Woman’s Health v. Hellerstedt (2016). Four years later, the Supreme Court reaffirmed that decision by striking down a similar Louisiana law in June’s Medical Services L.L.C. v. Russo (2020).

            In his decision striking down Mississippi’s most recent effort to nullify abortion rights in the magnolia state, U.S. District Court Judge Carlton Reeves cited the 2004 abortion case in footnote 40 as one example of what he called the Mississippi legislature’s “history of disregarding the constitutional rights of its citizens.” Reeves recalled as well that the Supreme Court found, fifteen years after its school desegregation decision in Brown v. Board of Education (1954), that Mississippi was denying “fundamental rights to many thousands of school children, who are presently attending Mississippi schools under segregated conditions contrary to the applicable decisions of this Court.”

            In short, Mississippi has a shameful history of defying the Supreme Court rather than complying faithfully to assure the state’s citizens the same rights enjoyed by Americans in all other states. Mississippi’s extraconstitutional defiance recalls, of course, the state’s history of taking up arms against the national government in 1861 and the state’s wrongful pride in that history as seen in the use of the Confederate battle flag in the state’s flag for more than a century until a new flag was adopted earlier this year. Moreover, the University of Mississippi’s athletic teams today still compete, sixty years after federal court-ordered desegregation, as “the Ole Miss Rebels.”

            The abortion case now before the Supreme Court originally included legal challenges to five other laws the state’s legislature enacted designed for all practical purposes to regulate abortion clinics out of existence. In fact, Mississippi once had four clinics providing abortion services in the state, but the Jackson facility is now the only one still operating.

            In his ruling in the case, Reeves rejected the legislature’s pretense that it was acting in the interests of the state’s citizens, but was in fact joining a campaign waged by national interest groups. “The State chose to pass a law it knew was unconstitutional,” Reeves explained, “to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade.”

            In short, Mississippi brings its plea to the Supreme Court with “unclean hands,” a record of defying the Court’s jurisprudence time and again in the same way that Mississippi defied the Supreme Court’s rulings on school desegregation in the 1950s and ‘60s.  The Court responded back then with a short and sternly worded decision, Alexander v. Holmes County Board of Education (1969), that effectively ordered Mississippi’s school districts to desegregate without further delay.

            Mississippi’s defiance of the Court’s abortion-rights rulings cries out for the same kind of summary decision and stern reprimand rather than a respectful hearing for a state that has knowingly set itself against the law of the land. The Court that will hear the case later this year has been packed with anti-abortion conservatives, thanks to the national campaign to overturn Roe v. Wade. The state argues in its brief that Roe v. Wade is “egregiously wrong,” but in fact public opinion polls consistently show that a majority of Americans approve of the Court’s decision.

            A different, unpacked Supreme Court considered this issue thirty years ago and pointedly reaffirmed Roe v. Wade’s “essential holding” in Planned Parenthood v. Casey (1992). In the pivotal opinion, three Republican-appointed justices – O’Connor, Kennedy, and Souter – joined in rejecting the criticism that the decision has proved to be “unworkable.” To the contrary, they joined in emphasizing the actual importance of the decision. “An entire generation has come of age free to assume Roe's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions,” they wrote. Nothing but politics undermines either of those two propositions.