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This week's SCOTUS:
Wednesday, there were two opinions, and a leak of a third.
Murthy v. Missouri
6-3, by Barrett, dissent from Alito, joined by Gorsuch and Thomas.
I accidently deleted this, and it's decided on standing, so I won't bother to write it up at length.
The case is about the first amendment, and government pressuring social media to censor. Earlier this term was NRA v. Vullo, which was decided against the government pressuring organizations.
Barrett argues that they don't really have the standing needed to seek an injunction. Most of them didn't do a good enough job showing that their censorship was a result of the government, and they didn't do a good enough job to show that they are in need of an injunction to prevent likely future continuing censorship due to subsequent government pressure. (Especially because several of these related to COVID, and that's changed. Some underwent more censorship, but that wasn't necessarily from more government action.)
Alito presents a thorough narrative, and argues that they meet the standing requirements (not quite sure he manages that). He makes some connections the plaintiffs didn't, which Barrett thinks he shouldn't have, as it's not the job of judges to look through more than 20000 pages of documents for themselves; it's the job of the parties to make the case to the judges. He argues that the standard shouldn't be excessively high to show standing, as then the government can just maintain a touch of plausible deniability and do all the pressuring it likes.
Snyder v. United States
6-3, conservatives vs liberals. Opinion by Kavanaugh, concurrence by Gorsuch, dissent by Jackson.
The case is about gifts to officials.
Kavanaugh introduces the difference between bribes and gratuities: bribes are intended to influence action as a quid pro quo, gratuities are gifts given afterword for official conduct. The question is whether section 666, a statutes concerning state and local government officials, prohibits bribes and gratuities, or only bribes, and was taken because circuit courts disagreed. The text is
The key words are "corruptly," and "influenced or rewarded."
Kavanaugh makes six arguments:
Kavanaugh's response to the dissent: "reward" is ambiguous. It can mean rewards promised before the fact (and is used as such in some other bribery statutes), or rewards with no such promise (gratuities). But here, because of the word "corruptly", it must be talking about before the fact. He argues that Congress added "rewarded" in addition to "influenced" to make it impossible for officials to argue that they would have done whatever things anyway, so it isn't technically covered, as they try to get away with being bribed.
Note also that throughout, Kavanaugh chooses small gratuities, like gift cards and meals, as his examples.
Gorsuch concurs that this is an instance of "lenity." The statutes leaves some reasonably doubt, so you should lean in favor of the "presumptively free individual." He sees that as what's going on behind the reference to "fair notice." And he is "pleased to join."
Jackson dissents. She says that they should begin and end with the text. She reads "influenced" as capturing quid pro quos, and therefore, bribes. "Rewarded" is intended to capture corrupt officials acting without an explicit quid pro quo. "Reward," as ordinarily read, would not require that there be a beforehand agreement. Jackson points out that there are other statutes which use "reward" to refer to gratuities. And she argues that mentions of "reward" in the bribery statutes that the majority refers to, makes it explicit that it is attached to an agreement, whereas that is not seen here.
Jackson argues that statutory history makes the case for the majority worse. She agrees that it traces to section 201. But she points out that: originally, it is agreed that section 666 refers to both bribes and gratuities, and that it then also had the 10-year maximum. Then she argues that the majority is wrong to see the subsequent changes as changing what it covers, as it was part of a package of "technical and minor" changes. It was here that Congress changed the language to get what is under dispute, going from "for or because of" to "intending to be influenced or rewarded." But Jackson does not read this as based off of section 201(b), but based on section 215 (which the majority had dismissed as as of yet uninterpreted). she cites also a House Report characterizing it as being meant to track section 215, not 201 as the majority claims. And a house report had spoken of 215 as including gratuities (in that context, referring to bank officials).
Jackson then turns to whether all gratuities are covered, or which exactly; she says that they do not need to reach that question. Looking at Snyder's case, it seems pretty bad. He had several instances of bidding for contracts to buy garbage trucks, where the specifications were tailored to help one of the bidders. In fact, one of the times, that bidding process happened only after he tried to have the vehicle bought directly before being told that wasn't how things were done. Then he went to the dealership and asked for $15000, and was given $13000, which he subsequently claimed was due to consulting. Employees testified that said consulting never existed. He was charged under section 666. (Jackson here notes that it is odd that the decision was reversed (that is, ruled the lower court was wrong) instead of vacated and remanded (that is, sent back to lower courts for further judgment) is odd, as arguably there's enough circumstantial evidence to conclude bribery, not just gratuities, likely existed.)
Jackson argues that section 666 is not talking about the things that the majority uses as examples. It applies to officials in entities getting at least 10000 in government benefits. It must be connected to business or transactions, of value at least $5000. It does not apply to things like fees or wages or other ordinary compensation, nor to reimbursements or payments for expenses "in the usual course of business." And it specifies that it must be done "corruptly." She would not read that narrowly as referring solely to quid pro quos. She argues that "corruptly," combined with the reference to intention involves knowledge of wrongfulness, so ambiguity in cases benefits the official. This makes it difficult for prosecutors to meet the burden of proof in cases where it is, in fact, innocent. She argues also that in the cases that have happened, the track record seems to be actually bad examples, so the built-in limitations work. She reads the real motivation for the majority's decision as Kavanaugh's fifth reason: that he thinks it better to leave it to state and local decisions.
Frankly, Jackson's responses here seemed pretty devastating; I have no idea how the majority acquired six people. I'm not used to siding with the dissent when that dissent is the three liberals and only them. It's also not the best look for the court when people are complaining about corruption, even when those complaints are done with extreme prejudice and heavy exaggeration, as it's easy to spin the case in the news as allowing bribery.
The supreme court also accidentally leaked Moyle v. United States, which was released Thursday.
Moyle v. United States
Per curiam. The case was dismissed as improvidently granted (DIG); the courts stays vacated. We see the court's 3-3-3 structure, as Kagan concurs, joined by Sotomayor and Jackson (Jackson in part, she also writes her own opinion); Barrett concurs joined by Kavanaugh and Roberts; and Alito dissents, joined by Thomas and Gorsuch (Gorsuch in part). It was 5-4 on whether to grant certiorari
Moyle v. Unite States was asking about the relation between the Emergency Medical Treatment and Labor act requiring medicare-funded hospitals to provide emergency aid, and an Idaho abortion ban: what happens when an abortion is needed to prevent serious health harms.
The district court had issued a preliminary injunction in favor of the government, as it expected the government would succeed. Idaho asked for a stay, the ninth circuit said no, and SCOTUS granted Idaho the stay and granted "certiorari before judgment."
Kagan argues that federal law would embrace such cases, as there are health-threatening but not life-threatening emergencies that require an abortion. She does not think Idaho is likely to succeed on the merits of its case that EMTALA does not require emergency treatments violating state law. And so, the preliminary injunction mandating such abortions should remain.
She responds to Alito's dissent (this is the only part that Jackson joins), by saying that abortion is needed in some cases to "stabilize" the patient, and so EMTALA does at times require it. She doesn't think the statute's applying also to requiring emergency care for unborn children changes the matter.
Barrett, joined by Roberts and Kavanaugh, think that "the shape of these cases has substantially shifted since we granted certeriorari." She goes through history: the U.S. has sued Idaho to enjoin its abortion ban "to the extent it conflicts with EMTALA." The District court granted a preliminary injunction because (1) "The act prohibits the termination of ectopic pregnancies" (2) The woman's death must be objectively imminent or certain before they may perform an abortion, per Idaho, and (3) "'necessary to prevent death' is only an affirmative defense." But since then, the Idaho supreme court, ruled that the act doesn't require objectively certain, and ruled that "treating an ectopic pregnancy, by removing the fetus" does not count as an abortion under the act. (Side note, as I'm in pro-life circles enough to guess as to what the ruling there was saying: I assume that that is because it removing the fetus would be distinct from killing it directly, with the death merely being an unfortunate side effect instead of a means. And so it's not an abortion.) Idaho since amended the act to exclude removal of ectopic pregnancies, or removal of already dead children, and changed the affirmative defense to an exception. Barrett's now no longer convinced that they need early resolution. They still disagree whether abortions are needed as stabilizing care, and whether EMTALA can preempt state law. But the law's been changed twice, and the US government has disavowed what Idaho claimed the injunction would do: make its law unenforceable, by including jeopardy to mental health as required by EMTALA, and threatening religious providers, by ignoring conscience. But the government's clarified that it isn't needed for mental health, that it can require delivery, rather than abortion, if the kid's already viable, and that conscience protections still apply. Meanwhile, from Idaho's side, they've argued that it's okay if abortions happen under certain emergencies, even if the the threat to the mother's life is not imminent. "A grant of certiorari before judgment presumes that further proceedings below are unnecessary to the court's resolution." But a bunch of things have changed. There's also a not-before-discussed "difficult and consequential argument…about whether Congress, in reliance on the Spending Clause" can obligate recipients of federal funds to violate state criminal law, and they should let lower courts look at that first. And so they should let them happen below. Barrett agrees to vacate the stay, as the arguments that Idaho would be irreparably injured mostly go away. There's still relevant differences between the two that need to be worked out but most of the factors that made it a serious issue demanding quick action have gone away. Idaho's still mostly able to enforce it's law.
Jackson concurs in part and dissents in part. She writes argues that "this months-long catastrophe" (the stay up to this point) was unnecessary. She argues that it's plain that EMTALA requires abortions, and that the state law must plainly give way. She agrees on lifting the stay, but doesn't think the court should have dismissed the case as improvidently granted. She thinks it's still certainly necessary to address the supremacy clause question in relation to EMTALA and state law, as various courts have passed abortion requirements. Meanwhile, there's a plain contradiction, in that one prohibits except in case of threat of death; the other requires them in cases of threat to health. The fundamental matter remains the same. She's a little rude to Barrett (characterizing it as convenient). It will plainly still continue to conflict in some cases. Idaho's representations to the court are not official and definitive interpretations of Idaho law. Jackson thinks that they should stick to what they have done. They've heard the arguments, and so forth. Jackson also thinks it's bad that the court hasn't yet rejected the argument about the "farfetched" theories about the spending clause, leavings states, for now at least, "nullifying" federal law. She's opposed to letting the harm continue.
Alito also dissents, joined by Thomas and Gorsuch in part. Alito points out that EMTALA requires protecting unborn children. And he argues that "conditions attached to the receipt of federal funds must be unambiguous," according to previous cases on the spending clause. But here, the statute is unclear. The court previously thought Idaho was likely to succeed. "This about-face is baffling. Nothing legally relevant has occurred since January 5." They've received briefs, and heard arguments, everything that's been needed has been heard; it's ready to be decided, nothing new will happen. "The Court has simply lost the will."
Alito argues that the text of EMTALA requires treating unborn children. They must be protected—both in the case of treatment, and in the case of transferring to another hospital. He argues further that the government's argument that the provision requiring treatment only with the patient's consent lets the patient decide the mode of treatment is not correct, and cannot be used to demand illegal treatment (and so regulation on experimental treatment still holds). So EMTALA does not require abortions. He argues further that the context of its enactment shows that they did not contemplate requiring abortion, and was supported by the same Hyde, by the same Congress, and the same President that pushed the Hyde Amendment prohibiting federal funds supporting abortions (except in limited circumstances) and promised not to support abortions. He rejects the government's citations of some cases, and its reference to the affordable care act in EMTALA's interpretation.
He also argues under the spending clause: parties may take federal funds, agreeing to comply with federally-imposed conditions. Those accepting must have "voluntarily and knowingly" have accepted the conditions for the conditions to have been enforced, like a contract. And so the conditions must be unambiguous, and recipients must legitimately have a choice. EMTALA is not unambiguous, as he argued earlier that it does not require abortion. Further, Congress is usually expected to make its intention clear if it intends to "pre-empt the historic powers of the States." He argues further that this binds Idaho, whereas Idaho never agreed to be bound by EMTALA. He also presents Idaho's arguments that EMTALA cannot preempt the State's abortion rules because Idaho is not a party to the agreement between the federal government and hospitals that take medicare. Alito also argues that EMTALA says that it is not to be read as giving federal officials control over how medical services are provided in states. So it shows that they did not intend to have the federal government intrude into state healthcare regulation. He thinks the government's arguments do not suffice against the spending clause argument. And so they should reject the government. 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.]
Alito then turns to address the Court. He argues that the Government should lose, and so the stay should remain. He argues that it's been established that failure to enforce its laws is a form of irreparable harm, and Idaho is undergoing that. The injunction will lead to more abortions. The laws continue to conflict, so they should judge the case. The parties agree that it matters whether the law is enforced. He affirms that there is a conflict: in the cases of abortions that would be needed for health, but not life.
Alito argues that the government still thinks that health includes mental health, and so EMTALA could, under their interpretation, require an abortion. Meanwhile, many medical organizations argue that abortion is often needed for mental health. And so the stay is a serious error.
I'm really not sure what to make of this. Evidently the deciding votes were the block of three moderate justices, but I don't get what caused them to change their mind.
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.
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.
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.
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.
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