The last week was both busy and quiet on the Supreme Court front. The Supreme Court handed down eleven decisions reducing the number of pending cases to eighteen with two weeks to go. Only two of the cases were medium big, and the really big cases will be decided in the last two weeks. With the Juneteenth holiday, the Supreme Court will be releasing opinions tomorrow (Tuesday) and Thursday. For the last week of June, Monday will be an opinion day. Depending on how many opinions are left after June 27, there will probably be additional opinions on June 29 and, maybe, June 30. Expect Dodds and New York State Rifle to come the week of June 27.
This week, the two big decisions were in American Hospital Association v. Becerra and Arizona v. City and County of San Francisco. Both of these are bigger for what they did not say than for what they actually held.
American Hospital Association involves the rules for hospital reimbursements for Medicare. For years, conservatives have been challenging a judge-made rule (Chevron deference) which dictates that courts should uphold reasonable rules implemented by administrative agencies based on a reasonable interpretation of statutes. So far, the U.S. Supreme Court has not officially overruled Chevron. Instead, they are whittling it away through decisions like American Hospital Association. The courts are doing this by narrowing the field of what is a reasonable interpretation of statutes.
To place this movement in context, it is important to know how courts interpret statutes. There are three tools that court use to interpret statutes: 1) plain meaning; 2) legislative history (what is said about the bill as it is going through the legislative process; and 3) rules of statutory construction. Plain meaning is rarely sufficiently clear. Many statutes use vague terms to give some flex room to apply to unanticipated situations. And the current conservative legal movement does not like to use legislative history on the grounds that the legislature votes on the text not on the committee reports or what somebody said on the floor of Congress or in committee. That leaves the rules of statutory construction. Some of these rules are grammatical or common sense, but others deal with reconciling contradictory provisions or tie-breaks. Under the broad version of Chevron, if the right result is debatable, the administrative agencies version controls. Under the new supercharged textualist approach to statutory interpretation, the justices decide the right interpretation of the statute. As the right interpretation is not debatable (even if the justices split on the right interpretation), a contrary read by the agency is not reasonable and Chevron never comes into play.
Arizona involves a procedural issue related to the Trump era abuse of the “public charge” bar on immigration (that a person is not allowed to immigrate to the U.S. if they will become a public charge). While Trump was president, several district courts found that the Trump rule went too far and struck it down. The Trump Administration appealed, but the Biden Administration dismissed the appeal. Several Republican states tried to intervene to revive the appeal, but the appellate courts did not let them. While the Supreme Court originally took the case to decide when states could intervene to defend a policy which the federal government no longer wished to defend, the Supreme Court ultimately decided to dismiss the case without addressing the issue. Three justices wrote a separate opinion criticizing the government for using the lower court decisions as a basis to rescind the Trump policy without going through the formal rule making process. Because courts have become very aggressive since 2008 in issuing nationwide injunctions (apparently only problematic when issued to block Republican presidents), the proper way for an administration to respond to such injunctions will be a recurring question in the future.
The last piece of Supreme Court news is more of a glance to the fall. In several states, the courts have gotten involved in redistricting. In some states, for example North Carolina, the legislature managed to pass maps, but the state courts found that those maps were illegal under state law. In other states, Wisconsin, Pennsylvania, and New Hampshire, the state courts got involved when the legislatures maps were vetoed by the governor. The Supreme Court declined to get involved on an “emergency basis” when the state court rulings initially occurred. But emergency basis is just what the name implies — an order issued on expedited briefing designed to leave a certain outcome in place pending full review. The denial of an emergency order does not resolve whether the Supreme Court will hear the full case on the merits. Republican legislators in both states have now sought full review.
There is some overlap in the two petitions as both are based, in part, on the “independent state legislature” theory. This theory, which we saw during the 2020 presidential election, is based on the text of the elections clauses in the Constitution (Article I for Congress and Article II/Twelfth Amendment for President) that gives power over elections to the state legislatures. The independent legislature theory proposes that these clauses exempt state legislatures from any limits within the state constitution. It is hard to credibly push this theory with a straight face, yet somehow far right conservative lawyers (including some justices) do so. To buy this theory, you have to accept that state constitutions can define who is in the state legislature and the process by which election legislation passes but are unable to define any substantive restrictions on election laws.
North Carolina Republicans probably have a better argument on the independent legislature theory. North Carolina is weird in that its laws do not let the governor veto any congressional map. As such, the state legislature did actually adopt a law establishing the new maps.
Pennsylvania Republicans have a much weaker argument. In Pennsylvania, the governor does have a veto, and the governor vetoed the maps. Thus, they never became law. To side with Pennsylvania, you would need to interpret the U.S. Constitution as exempting laws related to federal elections from any veto by the governor. Given that prior cases have interpreted the elections clause as referring to the legislative power rather than establishing any rules regarding how state legislatures are composed or function, it would be a very big stretch to apply that rule to Pennsylvania and find that the vetoed legislation is actually in effect.
Pennsylvania Republicans, however, have a second argument. Pennsylvania lost a seat. Section 2a of Title 2 of the U.S. Code is the statute that applies to the decennial reapportionment of Congress after each census. Buried in Section 2a is language dealing with the possibility that a state might fail to redistrict after reapportionment. If a state loses seats (like Pennsylvania), the default is that it will elect its members at large until it draws a new map. The statute also deals with the rules for states that gain seats (any new members are elected at large with the other members elected under the old map), but the language ignores the simple reality that the old maps in such states likely violate equal protection due to the change in population in the old districts. Pennsylvania Republicans want to interpret this clause as barring a court-drawn map and forcing at-large elections until the “legislature” can agree upon a new map if a state lost seats in Congress. Of course, such at-large maps violate other laws like the Voting Rights Act, but this argument could potentially carry some weight with the conservatives on the Supreme Court.
I am a little shocked at this argument coming from Pennsylvania. It would make more sense in a state like Ohio. In Pennsylvania, instead of having lines that are likely to be close to an even split, using at-large seats could easily lead to either party winning all of the seats. In Ohio, it is more likely that the Republicans would sweep the delegation in an at-large election.
There are other cases already pending at the Supreme Court which will allow the conservative majority to make it more difficult for Democrats to win a proportionate number of seats. The votes are possibly there to take these two cases, but I doubt that they will take these cases. That seems a step too far.
