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Culture War Roundup for the week of June 24, 2024

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The charitable answer for Idaho is that the moderates saw non-intervention as likely to result in some absolutely abominable precedent in the 9th Circuit under the original constraints (eg, finding that any federal encouragement of a thing prohibited a state restriction, which the Civil Marksmanship Program would absolutely love to hear about), which SCOTUS would have to overturn in the most controversial case possible, and then the concessions from both the federal and state government during trial set that concern off the table.

The less charitable is that the concessions were enough that, even if the moderates could recognize voluntary cessation when it was slapping them in the face, they saw that they could punt. See NYSPRA I, Fulton, so on for previous editions that got further along. It's not a lack of willpower; it's a lack of desire.

He rejects the arguments of the liberals, saying that it requires stabilization of any threat to an unborn child. And that it fails to take into account the spending clause. [Side note: would this make all abortions illegal? No one argues this, so I must be missing something.]

The text of EMTALA covers only stabilizing care in emergency rooms that accept medi* funds. There'd be a hilarious mirror stretch where a conservative administration tried to turn it into a hospital Born Alive Act, but trying to ban abortion at clinics that don't have emergency rooms would be far more of a stretch.

I still need to get to three more Thursday opinions, and by the time I do that, there'll be some Friday ones too. SEC v. Jarkesy seems like it will matter.

Yeah, that's a big one. I think people overestimate how big -- too much of ALJ depends on these civil penalties for them to actually comply with the dicta, and a lot of the targets of these historical civil penalties will roll over for the equivalent of plea bargains when various administrative offices start pointing out that it's not that much harder to prove jail-time-penalties if they have to go to a jury anyway. But it's also not just Big Business that gets hit by civil penalties: while I expect them to Massively Resist it, everything from the EPA to the ATF depends on this sorta thing.

((Technically, even a lot of fire/safety code stuff does, though the weird state of incorporation of the right to a jury trial means that it probably doesn't matter for state regs in the near future.))

EDIT: and Loper-Bright on Friday is a second part of a Mozambique for admin law advocates. It's likewise not going to matter as much as it should, since lower courts are still going to do Chevron-in-all-but-name -- and Robert's bizarre stare decisis argument is just giving permission for it -- but just having to put the work in will slow a lot of expansive reads of federal law.