“According to the CDC’s reading of the Public Health Service Act, the Court noted, it has “broad authority to take whatever measures it deems necessary to control the spread of COVID–19.” That includes the authority to override rental contracts and property rights across the country, since the CDC argues that evictions could promote the spread of COVID-19 by forcing people to live with friends or relatives, in homeless shelters, or in other “congregate or shared living setting[s].” But as the Court noted, “it is hard to see what measures this interpretation would place outside the CDC’s reach, and the Government has identified no limit…beyond the requirement that the CDC deem a measure ‘necessary.'”
The Court offers some illustrative hypotheticals: “Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable? Require manufacturers to provide free computers to enable people to work from home? Order telecommunications companies to provide free high-speed Internet service to facilitate remote work?” But those examples only scratch the surface.
If the CDC’s understanding of its powers were correct, it would have the authority to make any of its frequently contentious COVID-19 recommendations, including its advice on mask wearing by K–12 students and the general public, mandatory. Rather than focus on people who move because they are evicted, it could simply decree that no one is allowed to change residences. It could require every American to be vaccinated against COVID-19. It could unilaterally impose nationwide shutdowns of businesses and order every American to stay home except for “essential” purposes. It could prescribe fines and jail sentences for people who defy those requirements, as it has with the eviction moratorium. And it could do any of these things not just in response to COVID-19 but also to control the spread of any communicable disease, including the seasonal flu and the common cold.
Where does the CDC think it gets this limitless discretion? The Public Health Service Act, which Congress approved in 1944, says “the Surgeon General, with the approval of the Secretary [of health and human services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” It adds that “for purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.”
A regulation delegates that authority to the CDC, which has heretofore used it rarely and for narrow purposes such as banning the sale of small turtles that carry salmonella. But last fall, when it first imposed its eviction moratorium, the CDC claimed to discover previously unnoticed dictatorial powers. In the CDC’s view, “other measures” includes literally anything it claims will help reduce the spread of communicable diseases.
Two-thirds of the federal courts that have considered the issue, including the U.S. Court of Appeals for the 6th Circuit, have said the CDC does not have the power it claims. They generally have taken the view that “other measures” must be similar in kind to the specific examples listed in the statute.”
…
“The Court adds that “even if the text were ambiguous, the sheer scope of the
CDC’s claimed authority…would counsel against the Government’s interpretation,” since “we expect Congress to speak clearly” when it means to authorize powers of “vast ‘economic and political significance.'””
“It is not at all clear what the Biden administration is supposed to do in order to comply with the Court’s decision in Biden v. Texas. That decision suggests that the Department of Homeland Security committed some legal violation when it rescinded a Trump-era immigration policy, but it does not identify what that violation is. And it forces the administration to engage in sensitive negotiations with at least one foreign government without specifying what it needs to secure in those negotiations.
One of the most foundational principles of court decisions involving foreign policy is that judges should be extraordinarily reluctant to mess around with foreign affairs. The decision in Texas defies this principle, fundamentally reshaping the balance of power between judges and elected officials in the process.
The central issue in Texas is the Biden administration’s decision to terminate former President Donald Trump’s “Remain in Mexico” policy, which required many asylum seekers arriving at the United States’ southern border to stay in Mexico while they awaited a hearing on their asylum claim. Although the policy was formally ended under Biden, it hasn’t been in effect since March 2020, when the federal government imposed heightened restrictions on border crossings due to Covid-19.
Nevertheless, a Trump-appointed federal judge, Matthew Kacsmaryk, ordered the Biden administration to reinstate the policy, and he gave the administration exactly one week to do so. The Supreme Court’s order effectively requires the administration to comply with Kacsmaryk’s order, at least for now, with one vague and confusing modification.
Technically, this case is still on appeal. The Biden administration requested a stay of Kacsmaryk’s order while its appeal is pending. But the administration is now under an immediate obligation to comply with that order.
And the Supreme Court’s decision to deny the stay bodes very ill for the ultimate outcome of that appeal. The Court did not disclose every justice’s vote, but liberal Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan did disclose that they dissent.”
…
“Kacsmaryk’s opinion, it should be noted, was dead wrong. It effectively claimed that a 1996 law required the federal government to implement the Remain in Mexico policy permanently. That policy didn’t even exist until 2019, so the upshot of Kacsmaryk’s opinion is that the government violated the law for nearly a quarter-century and no one noticed.
The Supreme Court does not go that far. Instead, it suggests that the Biden administration did not adequately explain why it chose to end the Remain in Mexico policy. In theory, that’s a solvable problem. Secretary of Homeland Security Alejandro Mayorkas could comply with the Supreme Court’s decision by issuing a new memo providing a more fleshed-out explanation.
Except that the Supreme Court does not even offer a hint as to why it deemed the Biden administration’s original explanation insufficient.”
…
” without an explanation as to how it could comply with the conservative justices’ understanding of the law, the administration is left with two untenable choices. The first is that it can try to guess what, exactly, the justices want them to say in a new memo explaining its policy. The second is to make what could be a futile effort to reinstate Trump’s policy.”
“Mexico is likely to have strong opinions about this abrupt policy shift. The original Remain in Mexico policy came about only after the United States secured Mexico’s cooperation, and it is unlikely that the United States could successfully reimplement this policy without Mexico’s permission.
So one of the upshots of the Supreme Court’s order is that the administration must now go, hat in hand, to the Mexican government and beg them to cooperate again.
For decades, the Supreme Court warned the judiciary to avoid “unwarranted judicial interference in the conduct of foreign policy.” Judges, the Court explained in Kiobel v. Royal Dutch Petroleum Co. (2013), should be “particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.”
Apparently that’s all out the window now: Unless the Biden administration can figure out what it needs to put in a new memo explaining its policy, it must reopen diplomatic negotiations with Mexico (and possibly with Central American nations whose citizens are seeking asylum in the United States) in order to reinstate a policy that it does not agree with, and that it believes, in Mayorkas’s words, will leave untold numbers of immigrants without “stable access to housing, income, and safety.””
…
“The decision upends the balance of power between the elected branches and the judiciary. It gives a right-wing judge extraordinary power to supervise sensitive diplomatic negotiations. And it most likely forces the administration to open negotiations with Mexico, while the Mexican government knows full well that the administration can’t walk away from those negotiations without risking a contempt order.
With this order, Republican-appointed judges are claiming the power to direct US foreign policy — and don’t even feel obligated to explain themselves.”
“S.B. 8, the Texas abortion ban that took effect at the beginning of this month, was designed to frustrate pre-enforcement challenges by relying on private lawsuits to deter the conduct it forbids. A recent ruling by the U.S. Court of Appeals for the 5th Circuit shows how effective that strategy is. Because S.B. 8 explicitly bars Texas officials from enforcing its restrictions, the 5th Circuit said on Friday, they cannot be sued to block its implementation—a decision that illustrates the “complex and novel antecedent procedural questions” that the Supreme Court mentioned when it declined to intervene in this case.
The implication is that people who object to the law, which is plainly inconsistent with Supreme Court precedents, cannot challenge its constitutionality until someone is sued for performing or facilitating a newly prohibited abortion. But meanwhile, the law has already had its intended effect, since the threat of litigation has led Texas clinics to stop serving the vast majority of women seeking abortions.”
“On September 1, nearly all abortions became illegal in Texas.
A state law signed by Gov. Greg Abbott earlier this year bans abortions as soon as a fetal heartbeat can be detected. That’s as early as six weeks’ gestation, before many people know they are pregnant, making the bill a near-total ban on the procedure.
Earlier this week, abortion providers asked the Supreme Court to stop the ban from going into effect while legal cases continue. But the justices did not take action, allowing the six-week ban, which contains no exceptions for cases of rape or incest, to become the law of the land in Texas.
So-called heartbeat bills like Texas’s are not new. At least eight have passed in recent years, with a raft of states enacting the bans in 2019. But until the Texas law, no heartbeat bills have gone into effect — they have faced court challenges since they run directly counter to Roe v. Wade, the landmark 1973 decision that established the right to an abortion in America.”
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“the Texas bill was intentionally written to prevent courts from blocking it before it takes effect. Rather than having state officials enforce the abortion ban, the bill essentially empowers private citizens to do so by suing abortion providers, according to the Texas Tribune. This unusual provision makes it harder for abortion-rights groups to sue state officials to block the law, since they aren’t technically the ones who will enforce it.
Regardless, legal challenges to the Texas law remain ongoing, and it could still be struck down. But for now, abortion providers in Texas say they will abide by the law, and most Texans will likely need to travel out of state for an abortion — if they can afford to do so.”
“the Supreme Court allowed a Texas law that effectively bans all abortions after six weeks of pregnancy to take effect.
Twenty-four hours later, the Court released a brief, one-paragraph order explaining why it did so — though it is a stretch to describe the Court’s short and thinly reasoned order as an “explanation”. The vote in Whole Woman’s Health v. Jackson was 5-4, with conservative Chief Justice John Roberts crossing over to vote with the three liberal justices.
The implications of this order are breathtaking. The Texas law violates the precedent established in Planned Parenthood v. Casey (1992), which protects “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state.” The sixth week of gestation is so early in a pregnancy that many people aren’t even aware they are pregnant.
At least 85 percent of abortions in Texas take place after the sixth week of pregnancy, according to the abortion providers who sued to block Texas’s law, SB 8. All of those abortions are now illegal in the state.
But the implications of the Court’s decision in Whole Woman’s Health stretch further.
SB 8 relies on a highly unusual enforcement mechanism. No state officer is permitted to enforce the statute. Instead, the law permits “any person, other than an officer or employee of a state or local governmental entity in this state” to file a lawsuit against an abortion provider or anyone who “aids or abets the performance or inducement of an abortion.” A plaintiff who prevails in such a lawsuit is entitled to bounty of at least $10,000, paid by the person they sued.
As Justice Sonia Sotomayor explains in one of four opinions filed by the dissenting justices, Texas lawmakers “fashioned this scheme because federal constitutional challenges to state laws ordinarily are brought against state officers who are in charge of enforcing the law.” So if no state officer can enforce the law, it is unclear whether anyone can be sued to block it.
The Supreme Court’s order, joined by the five most conservative justices, effectively blesses this method of evading judicial review.
But if Texas can avoid a court order blocking its anti-abortion law by delegating enforcement of the law to private bounty hunters, so can any other state. Indeed, nothing in the Court’s order prevents another state from passing a law banning all abortions — provided that the law is enforced using SB 8-style private lawsuits.”
…
“Allowing a law to stand that violates the Supreme Court’s 1992 Planned Parenthood v. Casey decision means that the constitutional right to an abortion is effectively dead. States now have the power to ban abortion for the first time since the Roe v. Wade ruling was handed down in 1973.
While it is theoretically possible that the Court could reverse course in subsequent litigation and strike down SB 8, the sort of justices who would allow such a law to take effect are exceedingly unlikely to do so. And the Court is already planning to hear a case in its next term, Dobbs v. Jackson Women’s Health Organization, which it can use to overrule Roe explicitly.”
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“The Court has now signaled that it will permit states to enact laws that were intentionally drafted to frustrate judicial review, at least if a majority of the Court agrees with what that law is trying to accomplish. And it handed down one of the most monumental decisions of our era — a decision effectively overturning Roe v. Wade — in a shadow docket order that offers virtually no reasoning.”
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“With their decision in Whole Woman’s Health, the justices have unleashed a monster. If taken seriously, that decision would allow any state to subject any person or institution to an overwhelming wave of lawsuits that they cannot possibly defend against. SB 8 is a direct attack on the rule of law and the principle that everyone should have their day in court before they are punished by the state.
It’s an attack on the 14th Amendment, which provides that no state may “deprive any person of life, liberty, or property, without due process of law.”
But, of course, if a state were to target gun owners, or Alito, or anyone else the Supreme Court’s most conservative justices approve of, the Court would almost certainly step in to protect a conservative litigant. Just last month, in Chrysafis v. Marks, the Supreme Court blocked part of New York state’s eviction moratorium because it “denies the landlord a hearing” before that landlord is required to house an unwanted tenant.
The Supreme Court is quite protective of due process — when the right litigant seeks the Court’s protection. One of the most disturbing things about Whole Woman’s Health is that it suggests the Court has abandoned its most fundamental principle: equal justice under law.”
“In May, Texas Gov. Greg Abbott (R) signed a state law that effectively bans abortions after the sixth week of pregnancy — sooner than many people learn they are pregnant. This law violates the ruling in Planned Parenthood v. Casey (1992), which protects “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state.”
Nevertheless, the law took effect on Wednesday after a Supreme Court dominated by Republican appointees refused to grant a group of litigants’ emergency request and block it. Twenty-four hours later, the Court handed down a very brief order formally holding that the law may take effect.
The Court’s non-action on the Texas law almost certainly foreshadows a more explicit attack on abortion rights in a future case, and the Court is already scheduled to decide another abortion case next year.”
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“SB 8 is unlike most other laws in that it was written to prevent courts from blocking it before it takes effect.
The anti-abortion law, which is before the Supreme Court in a case called Whole Woman’s Health v. Jackson, presents a maze of procedural complexities that are rarely seen in even the most complicated litigation. The law appears to have been drafted to intentionally frustrate lawsuits challenging its constitutionality. And Texas, with an assist from a right-wing appellate court, has thus far manipulated the litigation process to prevent any judge from considering whether SB 8 is lawful.
The stakes in this case are astronomical. Six weeks into a pregnancy is often very soon after a pregnant person misses their first menstrual period. So they may not even be aware that they are pregnant until it is too late. According to the abortion providers who are suing to block SB 8, at least 85 percent of abortions in Texas take place after the sixth week of pregnancy. Those abortions are now illegal under SB 8.
And the stakes in Whole Woman’s Health stretch far beyond abortion. SB 8 was drafted to frustrate judicial review before the law took effect. Now that the Supreme Court appears to have embraced this tactic, other states could copy it, potentially allowing states to enact all kinds of unconstitutional practices that can’t be challenged until after an unconstitutional law takes effect.”
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“The way it’s written, a Texan who objects to SB 8 may have no one they can sue to stop it from taking effect.
For one, abortion rights plaintiffs can’t sue their state directly. The ordinary rule is that when someone sues a state in order to block a state law, they cannot sue the state directly. States benefit from a doctrine known as “sovereign immunity,” which typically prevents lawsuits against the state itself.
But they also can’t really follow the same path that most citizens who want to stop laws do. That path relies on Ex parte Young (1908), a decision in which the Supreme Court established that someone raising a constitutional challenge to a state law may sue the state officer charged with enforcing that law — and obtain a court order preventing that officer from enforcing it. So, for example, if Texas passed a law requiring the state medical board to strip all abortion providers of their medical licenses, a plaintiff could sue the medical board. If a state passed a law requiring state police to blockade abortion clinics, a plaintiff might sue the chief of the state’s police force.
Part of what makes SB 8 such a bizarre law is that it does not permit any state official to enforce it. Rather, the statute provides that it “shall be enforced exclusively through . . . private civil actions.”
Under the law, “any person, other than an officer or employee of a state or local governmental entity in this state,” may bring a private lawsuit against anyone who performs an abortion after the sixth week of pregnancy, or against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.” Plaintiffs who prevail in such suits shall receive at least $10,000 from the defendant.
SB 8, in other words, attempts to make an end run around Young by preventing state officials from directly enforcing the law. Again, Young established that a plaintiff may sue a state official charged with enforcing a state law in order to block enforcement of that law. But if no state official is charged with enforcing the law, there’s no one to sue in order to block the law.”
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“Now that the law has taken effect, abortion providers (plus anyone who “aids or abets” an abortion, a vague term that is not defined in the statute) will undoubtedly be bombarded with lawsuits seeking the $10,000 bounty authorized by the new state law. These defendants will then be able to argue in court that they should not be required to pay this bounty because it is unconstitutional.
But they will do so under the threat of having to pay such a bounty to anyone who brings a lawsuit against them. Even if abortion providers prevail in all of these suits, moreover, they will still have to pay for lawyers to defend themselves in court. And the suits seeking a bounty under SB 8 will likely be numerous and endless, because literally “any person” who is not a Texas state officer can file such a suit.
If SB 8 remains in effect, any abortion providers who do remain operational are likely to be crushed by a wave of lawsuits that they cannot afford to litigate.”
“Brnovich upholds both Arizona laws — a provision that disenfranchises voters for casting a ballot in the wrong precinct, and another that prevents most third parties from delivering another voter’s absentee ballot to a polling place. But Alito’s opinion most likely preserves civil rights plaintiffs’ ability to challenge many of the most odious provisions of the voter suppression laws currently being pushed by Republican state lawmakers in other states.”
“the opinion is limited in scope. Brnovich does not apply to all Voting Rights Act cases, or even to all cases involving the law’s “results test” — the specific provision of the Voting Rights Act at issue in the case. Rather, the opinion limits its analysis to “cases involving neutral time, place, and manner rules” governing elections. Thus, while Brnovich does shrink the Voting Rights Act considerably, it primarily does so in this limited context.”
“Alito lays out five factors that govern future “time, place and manner” lawsuits (more on this five-factor test below). One of the practical upshots of these five new factors is that states will largely be free to enact voting rules that were common in 1982, when a key amendment to the Voting Rights Act became law. But novel restrictions on the right to vote are less likely to survive judicial scrutiny.”
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“The Voting Rights Act of 1965 is the seminal law that broke the back of Jim Crow, along with the previous year’s Civil Rights Act of 1964. It is arguably the most successful civil rights law in American history, and it was this nation’s first serious legislative attempt since Reconstruction to build a pluralistic democracy rooted in the principle of racial equality.”
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“Under a 1982 amendment to the law, the Voting Rights Act has three prongs, but the Supreme Court has either deactivated or severely weakened two of these prongs. The first is “preclearance,” which required states with a history of racist voting practices to “preclear” any new voting practices with officials in Washington, DC — in order to ensure that those practices did not discriminate on the basis of race.
The Supreme Court gutted preclearance in Shelby County v. Holder (2013).
The second prong of the Voting Rights Act is known as the “intent test,” and it prohibits state voting practices enacted with racist intent. But, in Abbott v. Perez (2018), the Supreme Court held that lawmakers enjoy such a high presumption of racial innocence that it is nearly impossible to prove invidious intent, except in the most egregious cases.
That leaves the third prong of the law, known as the “results test,” which derives from the Voting Rights Act’s language forbidding a state election practice that “results in a denial or abridgement of the right … to vote on account of race or color.””
“Alito’s opinion is vague, and it leaves as many questions open as it answers. When courts are faced with “time, place, and manner” cases under the Voting Rights Act, he writes, “any circumstance that has a logical bearing on whether voting is ‘equally open’ and affords equal ‘opportunity’ may be considered.” Nevertheless, he also provides a non-exhaustive list of five factors that “should be mentioned.””
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“One impact of this decision, in other words, is that many laws that have a disparate impact on voters of color will be upheld — though it is not yet clear just how severe a law’s impact on minority voters must be before the courts will intervene.”
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“The upshot of Brnovich, in other words, is that it gives states tremendous power to roll back expansions of voting rights such as early voting and expanded access to absentee ballots, although that power may be limited if such restrictions are imposed in ways that clearly target voters of color.”
“Roberts has spent much of his career crusading against voting rights, specifically the Voting Rights Act of 1965, the landmark civil rights law that ended Jim Crow practices disenfranchising Black voters and prohibiting race discrimination of all kinds in elections.
As a young Justice Department lawyer, Roberts fought unsuccessfully to convince President Ronald Reagan to veto an important 1982 amendment to the law, which overturned a previous Supreme Court decision making it very difficult to win Voting Rights Act lawsuits. As a justice, Roberts wrote the Court’s decision in Shelby County v. Holder (2013), which neutralized much of the law. He also joined two other opinions severely weakening the rest of the law — the latter of which, Brnovich v. DNC, was decided on the last day of this term.
The practical impact of this trilogy is that the Voting Rights Act is barely alive. Under Brnovich, for example, states are likely to have carte blanche to roll back early voting and absentee voting, as well as other, similar innovations that became common in the last four decades. And most challenges to the latest wave of Republican voter suppression laws are likely to fail.”
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“in a term gravid with extraordinarily aggressive arguments made by right-wing lawyers, conservatives and Republicans had an exceptionally good run. They convinced the Court to hobble the Voting Rights Act, to open a new line of attack on donor disclosure laws, to expand property rights, to attack unions, and to rewrite the rules governing when religious objectors are exempt from the law.
And that’s after just one term with a 6-3 Court. Next term, the Court will hear a case that could overrule Roe v. Wade.”
“The Mexican Supreme Court first ruled that marijuana prohibition was unconstitutional in 2015. That decision became binding nationwide three years later, when the court gave the Mexican Congress 90 days to pass a legalization bill. Legislators missed that deadline and several others, and last week the court lost patience, ordering the federal government to issue permits that will allow cannabis consumers to possess and grow marijuana at home.
Similar permits have been available since 2015, but until now they were limited to marijuana users who had filed lawsuits and obtained injunctions. Commercial cultivation and distribution remain illegal.”
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“Mexico legalized limited medical use of marijuana in 2017. Last year President Andrés Manuel López Obrador confidently predicted that the legislature would approve a framework for licensing and regulating recreational marijuana suppliers in early 2021. But legislators still had not agreed on the details when the most recent court-imposed deadline came and went on April 30, and this time they did not request an extension.”
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“Mexico might be the third country to legalize marijuana—or possibly the fourth, if Israeli legislators follow through on a legalization plan that was endorsed last fall by both of the major parties that controlled the government at the time. The new governing coalition, a hodgepodge of right-wing and left-wing parties, is also officially in favor of legalization.
In the U.S., 18 states, representing 44 percent of the national population, now allow recreational use of marijuana, but the federal ban remains in place. Since President Joe Biden wants to keep it that way and congressional Democrats who favor legalization are not making a serious effort to attract Republican support, the conflict between federal and state marijuana laws is unlikely to be resolved anytime soon.”