Category Archives: Healthcare

Title 8 vs. Title 42 — A Brief Primer on Immigration Law

By tmess2 | Published May 14, 2023

This past week, the expiration of “Title 42” was a big headline in the news.  And, while it is too soon to be sure, it is likely that the expiration may end up being a tempest in a tea pot (not that the MAGA folks will ever admit this reality).  But to the extent that this comes up as a topic, here is some basic (admittedly oversimplified) immigration law for non-lawyers.

One of the major development in law in the late eighteenth and early nineteenth century was the Napoleonic Code in France.  Prior to Napoleon, when laws were enacted, they were recorded and published.  But you would need to search through every annual volume to see what the statutes were on any given topic.  The concept behind the Napoleonic Code was that in addition to the annual volumes of that year’s new statute, there would also be a collection organized by topic of the current laws in effect on a topic.  It took time for the idea to catch on her, but eventually, the U.S. organized its laws into the U.S. Code.

But there is one problem with the code system — where do you place a law in the code that impacts multiple topics.  When it comes to immigration law, most laws impacting immigration are found in Title 8 — the part of the U.S. Code governing immigration and naturalization.  However, there is also a title of the U.S. Code (Title 18) that contains most of the federal criminal statutes — which is why there are some things that are not allowed by Title 8 which are simply improper immigration and not criminal.  And for this discussion, there is Title 42 which contains laws related to Public Health and Welfare. Continue Reading...

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What you Need to Know about the FDA

By tmess2 | Published April 9, 2023

The latest fight about abortion is once again in the courts.  This time the battle is over “medical” abortion.  Even before the Dobbs decision last year, there has been a move away from “surgical” abortions to medical abortions. (According to the latest statistics, it is close to a 50-50 split between surgical abortions and medical abortions.)  The reasons for this trend are somewhat simple.

First, it is easy for a state to regulate surgical abortions.  While most surgical abortions are not what most people would consider to be surgical, a surgical abortion is still a hands-on, in-person procedure.   It requires an office, and a state can enact rules about that physical facility — size, location, and equipment.

Second, the need for a physical location for surgical abortions creates two problems.  On the one hand, that makes it easy for anti-abortion activists to target the facility in various ways.  On the other hand, the need for a physical facility makes it harder for patients to access the facility.  Due to the regulations, an abortion clinic is rather expensive investment.  As a result, abortion clinics are in the biggest cities.  If you live in the rural part of your state, the nearest abortion clinic can be over three or four hours away. Continue Reading...

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Post-COVID Health Care

By tmess2 | Published December 26, 2022

We are now almost three years into dealing with COVID. Between changes to the virus and the development of vaccines, COVID has become one of those serious diseases that we just have to deal with rather than an all consuming emergency. But the response to COVID has created a political firestorm that will take years for our system to adjust.

Prior to COVID, those outside of county health departments (and their attorneys) rarely paid much attention to the laws in place to deal with contagious diseases. One of the major problems in our government (at all levels) is that (especially in those states with part time legislatures) is that nobody pays much attention to laws on the books until flaws in those laws create a serious problem. As a result, in many areas of the country, the laws still reflect a very traditional approach to pandemics and potential pandemics. For the most part, those laws allowed quarantine of sick patients and local restrictions designed to prevent the spread of disease. At the national level, quarantines of incoming travelers could also be imposed to assure that nobody was bringing in diseases.  (With all modes of travel being, compared to modern times, relatively slow, the potential for an extended quarantine was simply assumed in the planning for a business trip (and social travel of long distances was simply not common). 

These laws made sense in the nineteenth century. A significant part of the population lived in rural areas where it was easy for a family that had smallpox or similar life-threatening disease to isolate for a period of time.   And for people who lived in town, it was possible to get needed supplies to the quarantined homes by simply leaving them outside the home to be picked up after the delivery person left.  More significantly, travel was very limited and the number of jobs that were “essential” were relatively few.  While there were exceptions to the rule, goods that had to be transported from one part of the country to another tended to be more in the nature of luxury goods rather than necessities.  In short, it was possible to have a degree of success in stopping the spread of diseases by imposing strict quarantine rules without causing much of an impact on the economy.   And because of the limited contact between different parts of the country, the area subject to quarantine at any one time would be very limited as well.

In one of those coincidences, the science of fighting disease progressed somewhat faster than the science of transportation.  By the time that the car and the jet made it possible to have social travel between countries and for business people to hit six major cities in three countries within the same week, vaccines made most of the previously common deadly communicable diseases relatively rare.  In my personal experience, as an attorney to a county government, I can only remember quarantine coming up a handful of times, and some of those discussions were merely periodic reviews of policies and planning for worst case scenarios.  Because of the progression of medical science, the laws on quarantine became an “in case of emergency” backstop that were almost never used. 

Meanwhile, the changes to the global economy caused by the improvements in transportation have increased our dependency on products made by other people.  And urban/suburban vs. rural population has essentially flipped from urban areas representing around 20% of the national population prior to the Civil War to the rural population now fast approaching only 20% of the total population.  Continue Reading...

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Supreme Court — Thursday Blockbusters

By tmess2 | Published June 18, 2021

Normally, at this time of the year, I am posting a look at the big cases to be decided in the last two to three weeks.  I got a little delayed this year by the redistricting posts, and  The Supreme Court beat me to the punch by releasing two of the biggest opinions of the term  — Texas vs. California and Fulton vs. Philadelphia.  

Texas is the latest, and hopefully last, round of the Republicans attempts to use the courts to accomplish what they can’t do in Congress — repeal the Affordable Care Act.  The latest theory was that, by repealing the tax penalty that is part of the individual mandate, Congress effectively repealed the entire Affordable Care Act.

Understanding the issues in the case requires a brief detour into the back history of the case and some basic things that most lawyers learn in law school (but which the dissent kindly forgets).  Before the New Deal, there were a lot of doctrines that a conservative Supreme Court used to block progressive legislation.  And, as will be discussed in the post on the remaining cases, it is important to understand that many in the Federalist Society think that the “Old Court” got it right and oppose the changes that the Supreme Court made in the 1940s to those doctrines.  One of those changes was a much broader definition of the power of the federal government to regulate economic matters under the Commerce Clause.  And when the Affordable Care Act was enacted, most thought that the individual mandate was authorized by the Commerce Clause.  And when the Republicans first challenged the individual mandate, the defense of the mandate relied, in part, on its significance in the overall scheme.  Unfortunately for the future of the Affordable Care Act, when the Supreme Court first analyzed the Affordable Care Act, the Chief Justice sided with the conservatives on the Commerce Clause issue but was willing to find that it was authorized as a tax.  When Republicans managed to repeal the tax in 2017, conservatives saw an opportunity to use that repeal to take a second run at the individual mandate and the Affordable Care Act.

Now, here is where we get to basic legal principles.  One basic legal principle recognizes the distinction between mandatory laws (i.e. those that have to be followed) and directory laws (laws that are merely suggestions),  One key question that courts look at to see if a law is mandatory is whether there is a penalty for noncompliance.  Another basic legal principle is that courts will only consider a case if the plaintiff is harmed by the defendant’s actions.

A final legal principle is that legislatures are free to change its mind.  In this case, while supporters of hte individual mandate believe that the rest of the Affordable Care Act may ultimately fail due to the repeal of the individual mandate, Congress was free to reach a different conclusion and repeal the individual mandate.  As such, the fact that the individual mandate might no longer be valid should not result in the rest of the Affordable Care Act being invalid.

When the Republicans repealed the tax penalty for the individual mandate, they filed this current case with some individuals and some states as plaintiffs.  The District Court ignored these basic principles to find for the plaintiffs and strike down the entire Affordable Care Act.  The Fifth Circuit also ignored some of these principles to find that the individual mandate was invalid. but directed the District Court to reconsider its finding that the rest of the Affordable Care Act failed with individual mandate.  The Supreme Court opted to take up the case to resolve this issue.

The majority noted that the effect of the removal of the tax penalty was that the individual mandate was no longer a mandate.  Instead, it was a mere suggestion.  Because it was a mere suggestion, the individual mandate no longer compelled the individual plaintiffs to purchase health insurance.  As such, there was no harm to the individual plaintiffs.

Similarly, most of the harms to the states flowed from other provisions of the Affordable Care Act.  While these harms allegedly came from people opting into expanded Medicaid coverage, the Supreme Court found that the states failed to demonstrate that the mere suggestion that individuals get health insurance (rather than the actual benefits themselves) caused individuals to apply for Medicaid.  Because the individual mandate did not harm the states, the states did not have the ability to challenge the individual mandate either.  (The majority glosses over any argument related that the states had the ability to challenge the rest of the Affordable Care Act if the individual mandate was invalid.  That argument could have been defeated by expressly addressing the fact that Congress, by only repealing the tax penalty, implicitly decided that the individual mandate was not needed.)

The two dissenters focus on the failure to address “severability” — whether the rest of the Act survives the repeal of the individual mandate — as the reason why the states are harmed by the individual mandate.  They also find that because the original text of the Affordable Care Act (which was not altered when the tax provision was repealed) emphasize the importance of the original mandate than the repeal of the tax provision should be viewed as constructively repealing the rest of the Affordable Care Act.  For the reasons noted above, this argument is very, very weak and contrary to basic legal principles.  But the majority opinion (probably to keep a majority) does not expressly address these arguments.  Justice Thomas in a concurring opinion echoes some of the dissent attacks on the individual mandate but agrees that none of the plaintiffs are harmed by the mandate.

The bottom line of the decision is that this line of challenge to the Affordable Care Act as a whole will not succeed.  While the current Supreme Court would probably strike down an attempt to enforce the individual mandate with a criminal penalty, the amount of the tax penalty for noncompliance with the individual mandate (whether $0 or $1,000) does not matter.  Any challenge to the other provisions of the Affordable Care Act will need to be based on those specific provisions.  I would not be surprised if the Republicans keep up their attacks on the rest of the Affordable Care Act, but such attacks are not likely to succeed or be politically popular.  The individual mandate was the most unpopular part of the Affordable Care Act making it easy to attack.  The other provisions are politically popular.  As a result, continuing the fight against the Affordable Care Act will be very politically risky for Republicans.  And, trying to play to their base that buys the attacks on the Affordable Care Act will increase the likelihood of a Democratic majority in Congress that might enact something like a single payer plan that would be constitutional.

The other decision involves the Free Exercise Clause and civil rights legislation.  Philadelphia includes sexual orientation as one of the protected categories in its antidiscrimination policy.  Among its other responsibilities, Philadelphia is responsible for placing children who are removed from their parents in foster homes.  Philadelphia contracts part of the responsibility for finding foster homes to private agencies — some of which are affiliated with religious groups.  Philadelphia decided to require all of the agencies that it contracts with to comply with the city’s nondiscrimination policy, and some of the former contractors with religious affiliation sued to prevent the city from requiring such nondiscrimination based on their belief that such a policy was contrary to their religion.

An underlying issue in the case was dissatisfaction with the governing precedent on the Free Exercise Clause which was written in the 1980s by Justice Scalia.  That precedent established a more relaxed standard for policies that are neutral to all religions.  That case involved laws against the use of controlled substances which impacted certain religious groups that used peyote in rituals.  Since the law against controlled substances applies equally to everyone, Justice Scalia found no violation of the Free Exercise Clause.  Almost nobody liked that decision which led to multiple federal and state statutes to expand religious rights.  If a statute or policy is not neutral to all beliefs, then the government has to show that the statute is “narrowly tailored” to serve a “compelling interest” — a test that is hard to meet.

On its face, anti-discrimination legislation meets the Scalia test as it applies equally to everyone. It is irrelevant whether your desire to discriminate against gays, lesbians, and transsexual is based on some personal animus, a philosophical belief, or a misinterpretation of some religious text.  The opponents of the Scalia test saw this case as a perfect opportunity to do away the “neutral law” limits on the Free Exercise Clause and to give a preferential status to religious objections to law.

But the majority in this case managed to find a way to avoid the challenge to the Scalia test.  (Technically, the decision is 9-0 in that everyone agreed that Philadelphia lost, but a 6-3 majority rejects the challenge to the Scalia test.)  The majority by some creative reading of the policies and contracts (rejected by the three justices who want to replace the Scalia test) noted that the contract gave discretion to the city to authorize exemptions  from the rules.  Because exemptions could be given for unspecified reasons, the majority found that the policy in question was not neutral to religion.  In other words, in non-religious requests could be considered, the majority felt that Philadelphia also had to grant requests for exemptions based on religion or justify the failure to grant those requests.

There are two key parts of the decision.  First, because the majority finds that Philadelphia’ policy is not neutral, it apples the “compelling interest” test.  That test asks whether the policy is narrowly tailored to further a compelling interest.  In other words, the purpose behind the law has to be very important and the law has to be written in a way that achieves that interest with the least infringement on individual rights necessary to achieve that purpose.  Language in the majority opinion seems to indicate that preventing discrimination is a compelling interest.  (The majority ultimately finds that the language authorizing exemptions means that the policy is not narrowly tailored.  Implicitly, if Philadelphia repealed the exemption, the policy might survive.)

Second, it appears that a majority rejects, at least for now, the attempt to change the Scalia test.  The key part of this is actually a concurring opinion written by Justice Barrett and joined by Justice Kavanaugh and (partially) by Justice Breyer.  That opinion, while noting in the part not joined by Justice Breyer concerns about the Scalia test, finds that there is not a readily apparent test to replace the Scalia test.  This opinion indicates that the compelling interest test is not a satisfactory alternative when the law in question does not discriminate against religion and merely fails to give favorable treatment to religious beliefs.

In short, the current state of the Free Exercise Clause is that it gives religions and religious beliefs the equivalent of a “most favored nation” status.  If there are exemptions to general rules for non-religious reasons, those exemptions must also apply to religious reasons.  But, if there are no exemptions, there is no requirement in the Free Exercise Clause for an exemption for religious reasons (although for federal statutes, the Religious Freedom Restoration Act may require such an exemption).

While it is unclear what Justice Barrett and Justice Kavanaugh will do when the Supreme Court gets a case in which the state decision clearly is valid under the Scalia test, this decision gives hopes to the proponents of broad protections against discrimination based on sexual orientation.  Controversial changes often find religious groups on both sides of the issue.  In time, as the change becomes accepted, religious authorities that opposed the change tend to revise their reading of scripture.  Thus, today, you find very few people who would argue that slavery is authorized by the Bible or that racial discrimination is authorized by the Bible.  But, at the time of the Thirteenth Amendment and the Civil Rights Act, there was a vigorous debate among theologians on these issues.  The majority opinion seems to recognize that the mere fact that a person asserts a religious objection to a new policy does not, by itself, mean that the government already has to grant an exemption.

There are several cases left that could give big victories to conservatives.  But, as we have seen all term, the conservative block is not completely united.  The individual justices are “winnable” on particular issues.  While each justice have an issue in which they are willing to go to the mat for ultra-conservative principles,  they are, for the most part, unwilling to go too far to accomplish those goals.  Thus, the wins are likely to be very narrowly written (as in the Philadelphia case) and a return to the good old days before the New Deal is unlikely.

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Affordable Care Act Back at the Supreme Court

By tmess2 | Published November 8, 2020

Now that we know that our long national nightmare is almost at an end, it’s time to return to looking at the mess that he has left behind.  And on Tuesday, the Supreme Court will be looking at one of the messes that Trump created — the continued validity of the Affordable Care Act.

While the exact issue arises from the “Cut Trump’s Taxes” tax legislation passed in 2017 by some very unusual procedural maneuvers, the core of the issue comes from the Court’s decision upholding the Affordable Care Act, in part, in 2012.   Extreme conservative lawyers are partially right about that decision.  It was an atrocious decision, but not for the reasons identified by the far right.

For seventy-five years, from 1938 to 2012, the Supreme Court had taken a very expansive view of the Commerce Clause (which allows the federal government to regulate interstate and foreign commerce) and the Necessary and Proper Clause (which allows the federal government to pass legislation that is related to the fields expressly allocated to the federal government).  This interpretation is what allows the federal government to criminalize the growing of marijuana for personal use or street level drug offenses.  Somehow, the Supreme Court decided that even though people with health insurance (or without health insurance) may travel in interstate commerce and have to use that insurance in other states, the individual mandate was not authorized by either the Commerce Clause or the Necessary and Proper Clause.  Now, if the Supreme Court had struck down the Affordable Care Act (requiring the average American to purchase health insurance), Congress would have had to turn to an alternative like a single payer system.  So, the Chief Justice wanting to both deliver a victory for the far right (by selectively restricting the scope of the Commerce Clause) without destroying the insurance industry found an alternative justification for the Affordable Care Act — classifying the individual mandate as a tax authorized by Congress’s power to raise taxes.

This solution to a problem that only existed in conservative legal scholarship leads into the 2017 tax bill.  Between 2011 and 2017, Republicans repeatedly failed in their efforts to repeal the Affordable Care Act.  However, the 2017 tax bill set the tax penalty for not having health insurance at $0.00.  And the Republican state attorney generals (more concerned with politics than with actually representing the interests of their states or the people of their states) went to court raising two claims.  First, with the tax now set to zero, the individual mandate was unconstitutional.  Second, as the individual mandate was unconstitutional, the rest of the Affordable Care Act was also unconstitutional.

While the first claim is sort of based on the 2012 decision, it’s not entirely legally correct.  There is a general rule that, without any enforcement provision, a legal mandate is not actually a mandate.  Instead, it is a mere statement of policy.  As such, looked at in this light, the essence of the 2012 holding is that the only constitutional enforcement provision for the individual mandate would be a tax, but that, as a statement of congressional preference (that everyone who can afford to buy health insurance should buy health insurance), the individual mandate is still valid.   Exactly what the court says on this issue does matter in the long-term.  A holding that the individual mandate is now void would mean that a future congress would have to pass the individual mandate in its entirety to reinstate it.  A holding that there is simply no current enforcement provision would only require a future Congress to amend the penalty provision (and hopefully to a level that would actually create a real incentive to buy health insurance).  But, in the short-term, the first claim does not matter.  There is no enforceable individual mandate under current law.

The second claim is the real issue.  There are two legal principles at issue here.  First,  there is a general rule that courts do not interpret legislation to “repeal by implication.”  In other words, if Congress passes a law that repeals one thing, you should not interpret that law as also repealing something else.  Second, there is a general rule that different provisions in the same bill should be viewed as severable.  In plain English, if a bill does X, Y, and Z, a court finding a problem with X should not also invalidate Y and Z.  Both of these ideas are part of the concept of “judicial restraint,” which normally is favored in conservative circles.

In the case of the Affordable Care Act, there are strong arguments that the individual mandate should be viewed as severable.  In 2012, in upholding the individual mandate, the Supreme Court struck down the mandatory part of Medicaid expansion (again creating a novel legal theory inconsistent with 200 years of precedent).  Instead, the Supreme Court left the Medicaid expansion generally intact but made it optional and also left the rest of the Affordable Care Act intact.  So the Supreme Court has already acknowledged that parts of the Affordable Care Act are severable.

More significantly, both repeal by implication and severability ask whether Congress intended to strike down one part of the law and leave the rest of the law intact.  As seen this past term, when Congress changes one provision (and that change is problematic), the Supreme Court will usually leave the rest of the original law intact even if it strikes down that change.  Here, Congress considered and failed to pass bills that would have repealed the rest of the Affordable Care Act.  Instead, it merely changed one provision related to the individual mandate.  As such, Congress has indicated that it only wanted to get rid of that one part and keep the rest of the Affordable Care Act.

The strongest argument that the Republicans have on this issue is prior statements that the Supreme Court and supporters of the Affordable Care Act have made.  Those statements generally cast the individual mandate as a crucial component of the Affordable Care Act as passed in 2009-10.  While those statements are true in the sense that the Affordable Care Act might not fully succeed without the individual mandate, this argument misstates the legal question.  The issue is not what people thought in 2009 about how to craft health care reform.  Instead. the issue is what Congress thought in 2017 when it amended the Affordable Care Act.  And, by only changing the individual mandate, Congress implicitly found that the individual mandate was not needed for the rest of the Affordable Care Act to work in the way that the 2017 Congress wanted the Affordable Care Act to work.

Of course, the Supreme Court has changed since 2012.  Justice Ginsburg is no longer on the Supreme Court; so the 5-4 majority that supported the Affordable Care Act now might be a 5-4 minority (although Justice Kavanaugh did suggest the tax theory when he reviewed the Affordable Care Act on the D.C. Circuit and did join in the majority on the case involving payments to insurers earlier this year).  This case should not be a close call, but changes over the past twenty years have all but eliminated the line between partisan political positions and legal philosophy.

Normally, we would have a better idea how things stand after Tuesday’s arguments.  Typically, the give and take of in-person oral argument gave clear indications of where the justices stood.  With the new sequential questioning (which each justice, in order of seniority, having three or four minutes to question each attorney), it is a lot harder to get a read on the justices.  Sometimes, you can tell that justices aren’t buying a particular argument, but that does not necessarily mean that they will not find for that party on an alternative theory.

I would not expect an opinion on this case before February.   I could easily see very different reasoning from different justices reaching the same result.  If there are serious disagreements about reasoning or about the result, we might not see an opinion until May or June.

I think, ultimately, we are at the same position that we were in 2012.  The moderately conservative justices understand that the alternative to the Affordable Care Act could ultimately be Medicare for All. And, without calling into question Social Security, the Supreme Court could not credibly invalidate a Medicare for All program.    As such, there pro-business side will lead them to protect insurance companies.  And striking down the Affordable Care Act due to Republican legislation could be one of the few things that would motivate Democrats to turn out in large numbers in 2022.  If that happens, Democrats could be the majority in both the House and the Senate in 2023.  And overreach by the Supreme Court might actually make expanding the Supreme Court look appealing to voters in 2022.  (While we might never know for sure, I think that the results in Maine might be due, in part, to Senator Collins getting the opportunity to vote against Justice Barrett and to concern about Democrats pushing for expanding the Supreme Court.   Similarly, if the numbers hold up in North Carolina, the Supreme Court might have made the difference in that race.)

 

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October Term 2020 — Supreme Court Preview (Part One)

By tmess2 | Published September 19, 2020

Last night, Justice Ruth Bader Ginsburg lost her fight against cancer.  In the upcoming days, much will be written commemorating her long fight for justice.  Much will also be written about the politics of appointing her replacement (and I will almost certainly be putting in my two cents).  But very little pauses the Supreme Court calendar, and the Supreme Court’s term effectively begins next week when the justices will meet (either with appropriate social distancing in a large conference room or via teleconferencing) for the annual “long” conference that reviews all of the applications for review that have piled up over the summer.  The following week — on the First Monday in October — the Supreme Court will commence hearing argument on this term’s cases.

Before starting a look at the cases on the docket, three key things to note.  First, until the Ginsburg vacancy is filled, there will only be eight justices on a case (barring a recusal).  That creates the possibility of a 4-4 tie.  In the case of a 4-4 tie, there are two options.  On the one hand, the Supreme Court can “affirm by an equally divided court.”  Such a decision leaves the lower court ruling in place for the parties involved in the case, but is not a precedent for future cases.  On the other hand, the Supreme Court can set the case for re-argument when there is a full court.  It is really up to the justices to decide which option to take.   Second, who ultimately fills the vacancy will impact the outcome of a small number of cases, but those cases tend to be the most significant.  Third, at least for the October argument session (the Supreme Court term typically consists of seven argument sessions of two weeks each) and probably for most of this term, the Supreme Court will be holding its arguments by teleconference with each justice, taking turns by seniority, getting approximately three minutes per party to ask questions to the attorney.  The audio from these arguments will be livestreamed by several news organizations.

October is likely to be the calm before the storm.  Back last Spring, the Supreme Court had to cancel the March and April argument sessions.  The Supreme Court decided to hold a special May argument session, but only put the most important (and politically sensitive) cases into that argument session.  That left about half of the cases that would have been heard in March or April on the docket.  Those cases are being heard in October.  The biggest case in October is probably the first case up for argument — Carney v. Adams.  This case arises from Delaware.  Delaware requires that judges on the top three courts be balanced with no more than a one-judge majority for either major party with the other judges coming from the other major party.  So, on a seven judge court, there would likely be four Democratic judges and three Republican judges.   The claim presented to the Supreme Court is that conditioning eligibility for a judicial vacancy on an applicant’s partisan affiliation violates the First Amendment rights of potential judicial applicants.

There are also cases on whether ERISA (the law governing employee benefit plans) precludes state regulation of “pharmacy benefit manages” (middlemen between the pharmacies and the health insurance plans who make money by overcharging insurance companies and underpaying pharmacies), whether the Religious Freedom Restoration Act permits the “victims” of invalid restrictions on their religious rights to not only challenge the restriction but also seek money damages from the employees enforcing those restrictions, a case involving state court jurisdiction (the ability to hear a case) over defendants who have some dealings with the state but not dealings connected with the current case,, and whether a party can raise a claim of excessive force related to an arrest if the party managed to evade arrest.

The Supreme Court returns to a more normal arrangement for the November argument session.  For October, it is theoretically possible that there will be some 4-4 decisions, but it less likely that the splits will be clearly liberal vs. conservative (with Roberts or Gorsuch supplying the fourth vote on the liberal side).  All of the October cases (with the possible exception of the excessive force case) involve the type of issues in which conservatives and liberals may have a different way of approaching the issue but there is no clearly correct conservative (or liberal) answer to the clash.  (In other words, for most of the cases, both liberals and conservatives will see some arguments that favor the petitioner and some arguments that favor the respondents.  Of course, the pros for conservatives will be cons for the liberals.)

November starts slowly with arguments on the day before election day and election day that are only mildly hot button issues.  On Monday, there is a case in which the Sierra Club has filed a Freedom of Information Act for documents related to a regulatory decision and the government has asserted the “deliberative process” exception with the Supreme Court to decide what the test that governs that exception is.

On Tuesday, there is a case from Mississippi involving the punishment for murders committed by a juvenile (under eighteen year old) offenders.  In prior cases, the Supreme Court has held that states may not automatically sentence such offenders to life without parole (which in some states is the minimum penalty for adult offenders).  In making that ruling, the Supreme Court has discussed factors that sentencers (whether judges or juries) should consider.  The issue in this case is whether anything in those discussions require the sentencer to make any specific findings or, if those factors are merely things to be weighed by the sentencer.

Things heat up on the day after the election.  While many people will with bleary eyes by waiting to find how many absentee ballots remain to be counted in the swing states that are too close to call, the Supreme Court will be hearing a tough Free Exercise case.  Over thirty years ago, Justice Scalia wrote his worst opinion ever.  In that case (Smith), Scalia all but wrote the Free Exercise Clause out of the Constitution holding that there was nothing wrong with the government enforcing a neutral statute barring drug use to deny unemployment benefits to a person who used peyote in a religious ceremony.  That decision led to the passage of the Religious Freedom Restoration Act which went far beyond the pre-existing understanding of the Free Exercise Clause to allow people to assert religious beliefs to broadly opt out of complying with the law.  Now in Fulton, the question is whether a city (Philadelphia) can require religious-affiliated agencies who wish to provide services via a government program (here the placement of children in foster care) must comply with civil rights law barring discrimination (here discrimination against same sex couples).

The following week, both cases on Monday have some political aspects — one involving the rules governing immigration and what notice is required in connection with some parts of the deportation process and the other involving causes of action against federal employees for misconduct.  However, the Tuesday case is the big case for November — the continued viability of the Affordable Care Act.  This case should be a no brainer under traditional legal principles.  The repeal of the tax penalty for the individual mandate makes the individual mandate hollow with no enforcement provision.  However, the repeal of the tax penalty should not impact the validity of the rest of the Act, especially as the same Congress that repealed the tax declined to repeal the rest of the Affordable Care Act (thank you John McCain).  This case should be a 6-2 decision in favor of California and against Texas and the Trump Administration.  However, if the Trump Administration can replace Justice Ginsburg prior to the argument in this case, there is a real chance that there will be a 5-4 majority to set aside the normal rules and invalidate the Affordable Care Act, potentially reaching out and overruling the initial decision upholding the Affordable Care Act.

With the exception of the Affordable Care Act cases, I do not think that there is any individual case in November or December in which it will matter whether there is a replacement to Justice Ginsburg before January 3.  On the handful of cases in which there is likely to be a conservative-liberal split, I do not think that there is likely to be a 4-4 split.  Instead, I fully expect a 5-3 split.  The loss of Justice Ginsburg will certainly alter what is said by the dissenters in those cases, but I do not think that it will alter the ultimate outcome in those cases.

As we will see in Part II of the preview, it is not necessarily the cases set for the next two months but the cases likely to come to the Supreme Court later in the term and in the years to come in which the replacement of Justice Ginsburg by a believer in conservative judicial activism could make the difference and endanger the rights that so many have fought so long to protect.

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Pardon this Interruption

By tmess2 | Published August 19, 2020

Pardon this interruption to the viewing of tonight’s speeches from President Obama and Senator Harris, but the United States Supreme Court has, in its unintentional way, given us a reminder about what this election is about.

Today, the United States Supreme Court announced its November argument session.  That session begins on November 2, the day before the election, and continues until November 10.   (While the argument session usually has six argument days, the last day would fall on Veteran’s Day; so there will only be five argument days.)

While the United States Supreme Court normally tries to avoid doing anything overtly political on election day, this year’s docket brings political issues to the center more than some on the Court would probably like.  While one of the two cases being heard on election day is a typical federal criminal law statutory dispute of the type that puts non-lawyers to sleep, the other case (Jones vs. Mississippi) is a continuation of the Supreme Court’s examination of what sentences are appropriate for juveniles tried as an adult.

And, if that were not enough of a highlight for November, the significance goes up for the post-election day cases.  The day after the election, the Supreme Court will hear whether the First Amendment (Free Exercise Clause) bars a local government from requiring that all adoption-placement agencies comply with the local government’s policy of non-discrimination in placement.  In that case, Fulton vs. City of Philadelphia, Philadelphia requires placement agencies to not discriminate against gay and lesbian foster parents.  Certain religious-affiliated placement agencies think that they should not have to consider gay and lesbian foster parents because they believe that such persons are not appropriate placements for religious reasons.

And November wraps up with the big case of next term (at least of the cases already accepted) — the battle between red and blue states over whether Congress — by changing the penalty for violating the individual mandate to $0 — implicitly repealed the Affordable Care Act.

(I am a little shocked that any of these cases made it to the November argument session.  I would not have been surprised if the Supreme Court had postponed them until December.  Even though only Jones is on election day, the close proximity of the other two cases could well lead to their being discussed in the news in the run-up to the election.  The current October argument docket is mostly the relatively low interest cases that would have been argued in March and April if Covid had not thrown everything off.)

These three cases — whether taken individually or together — are a good summary of what this election is about.  Will Congress and the judiciary support providing adequate health care to all and protect the rights of ordinary people or do the only rights that matter are those of main stream groups that want the right to discriminate against minority groups.   It is clear that the interest groups that run the Republican Party wants a judicial system composed of people who take a very selective view of history to interpret the law in ways that protect the powerful from losing their advantaged position whenever the disadvantaged gain even the slightest bit of power.

One can always debate the precise place to draw the lines in any case, but the big picture view of the purpose of the justice system pushed by the far right is simply wrong, and it threatens the rights of the rest of us.  One of the things that this election will decide is who gets to appoint the judges and justices who will decide who gets a fair shake in the legal system and who does not.    But the ultra-conservative reactionaries long ago decided that controlling the courts matters to them (and in some cases is the only voting issue).   The question is whether moderates and progressives realize that we can’t afford to give Trump another four years to rubber stamp the unqualified candidates that Moscow Mitch and the Federalist Society want to foist upon us.

Now back to the more enjoyable events of the Democratic Convention.

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The Supreme Court and the Affordable Care Act

By tmess2 | Published May 2, 2020

A continuing story of the past decade has been the multiple rounds of litigation involving the Affordable Care Act.  While politicians have been discussing next steps (Medicare for All, Public Option, Repeal & Replace, etc.), businesses and states and other groups have been fighting out particular provisions in the courts.  Between this term and the next, there are three significant cases (or sets of cases to be more accurate) involving particular aspects of the Affordable Care Act.  One — decided this past week — involved the attempt of Congress to cut off the payments to insurance companies by not appropriating the money for those payments.  The second — to be argued in the May teleconference center — is the latest round of the fight over how to cover contraceptives for employees of those who object to contraceptives on moral grounds.  The final — probably to be argued after the election — concerns the impact of reducing the penalty for violating the individual mandate to $0.

When the Affordable Care Act passed, it included a provision intended to make participation in the exchanges less risky for insurance companies during a transition period.  It did this by creating a mechanism for making payments to insurance companies if the premiums that those companies charged were insufficient to cover claims.  This program was funded in part by requiring the insurance companies that overcharged to pay in part of the excess.  However, before the transition period ended, Congress — in its annual appropriations bills — expressly barred any tax dollars from being used to cover these payments.  The issue in the case was whether — due to the mandate in the Affordable Care Act — the government still owed the insurance companies the money promised by the statutory formula notwithstanding the refusal of Congress to appropriate the money.  In an 8-1 decision, the Supreme Court decided that the insurance companies had a legally enforceable claim against the government.  While this decision is a small defeat to the Republican attempt to frustrate the working of the Affordable Care Act, the reasoning in the decision may be useful in the much bigger case to be heard next term.

One part of the argument in the forthcoming case is that, by repealing the penalty on the individual mandate, Congress not only repealed the individual mandate but effectively repealed the entire Affordable Care Act.  Technically, the argument is that the individual mandate is now unconstitutional (because the Supreme Court upheld it under the taxing power and there is no tax now), and that the rest of the Affordable Care Act is not “severable” from the individual mandate.   One of the arguments in the case decided this week was that the language in the appropriations bills barring payments to insurance companies implicitly repealed the mandate for those payments in the Affordable Care Act.    In its discussion of that argument, the Supreme Court noted the general rule that courts rarely find that the language in one act constitutes an implied repeal of a different statute.  Under this rule, unless the two acts are so contradictory that one must prevail over the other, courts will find ways to give effect to both laws.

Now, of course, the eight justices who joined in this language could theoretically change their minds next term.  But assuming consistency, even assuming that Congress understood that repealing the tax penalty for the individual mandate would nullify the individual mandate, Congress did not repeal the remainder of the Affordable Care Act.  While, at the time of the original passage of the Affordable Care Act, there is room for speculation about what Congress would have done if it knew that there was no individual mandate, it is clear that the last Congress opted to leave the rest of the Affordable Care Act intact while neutering the individual mandate.  As such, assuming that the Supreme Court does not decide against reaching the severability question, it should be clear that the rest of the Affordable Care Act is still a valid and enforceable law.

Of course, the easy solution is to elect a Democratic President, a Democratic House, and a Democratic Senate to restore (and enhance) the penalty provisions for the individual mandate (as well as other beneficial adjustments to the Affordable Care Act).  But until such changes can be enacted, this week’s decision is a good omen on maintaining the status quo.

 

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Notes From Your Doctor: 2019-nCoV Update

By DocJess | Published January 29, 2020

As of 29 January, the number of infections in mainland China has now surpassed the total number of SARS infections, albeit with a death rate two-thirds lower. There are signs that this will soon be a pandemic, as the R0 number appears to be increasing.

The most disturbing thing I’ve seen comes from a study in The Lancet indicating some issues with the initial information from the Chinese government. Whereas China had said that all the initial infections were tied to the Wet Market in Wuhan, the Lancet article indicates that only 66% had visited the market, and that the onset of symptoms in the first patient was earlier than reported. With a two-week incubation, this sets onset back to November.

As an aside, I had never heard the term “wet market” until a few days ago. It turns out that it refers to any market that sells animals, dead animals or produce, as opposed to a “dry market” which sells only durable goods like clothing and electronics. Learning is life-long.

The most encouraging thing I’ve seen comes from Anthony Fauci, who spoke at the HHS/CDC press briefing yesterday. When asked about asymptomatic transmission, Robert Redfield, the head of the CDC, said that while China has said it’s possible, they have not shared any data, so we don’t know the veracity of that claim. Dr. Fauci pointed out that while asymptomatic transmission of certain viruses has occurred, in no case has this been a driving force in any epidemic or pandemic. I trust him (he’s one of my heroes) as his work speaks volumes (even though his team was cheated out of a Nobel Prize for their HIV work, but I digress.) Anyway, there’s no one better in this regard.

The political response to 2019-nCoV is interesting. In both China and Malaysia, they are shutting down social media accounts of people who put forth false information, and in one case, the perpetrator was arrested. Certain countries, like North Korea and Russia, are taking very strong stances to prevent epidemic spread in their countries, North Korea being the most extreme. Anyone entering North Korea (even diplomats and citizens) is being quarantined in a “high class” hotel, under medical supervision for a month. Russia has shut its abutting borders to China. Certain countries have ceased air travel to/from China, and as of last night, the US is considering doing so also. Many nations, including the US, have also arranged charter flights to repatriate citizens from Wuhan and the surrounding province, with attendant medical checks and quarantines.

Yesterday’s HHS/CDC press conference was led by Alex Azar. I’d never heard him speak before and while I hate his politics, he’s whip smart, and he said all the right things, answered questions appropriately. AND HE GOT THE MASK QUESTION CORRECT! I will spare you all of the drill down details into the sequencing of the 2019-nCoV genome, the rapid response testing protocols and the related medical information – but the upshot is that the US is doing everything that we should be doing from a public health perspective. One point of note from the press conference: all the cases in the US were contracted prior to the implementation of traveler screening.

I have received questions about whether or not it is safe to travel to other countries. The first point is that your chances of catching the seasonal flu are much higher than your chances of catching 2019-nCoV at this time, and if you are traveling, there are precautions you should take. In reality, airports and especially airplanes are breeding grounds for all sorts of germs so there are things you should do as a matter of course. First, hand-washing, as described in my last post. Second, because many airplane passengers are disgusting and do things like change diapers on tray tables…when you get on an airplane, use an alcohol wipe on the tray table, the arm rests, and any non-porous surface you’ll touch (like the air vent). Second, never use an airplane pillow or blanket, they get reused. Bring a small bottle of hand sanitizer, and use it after you touch things at an airport (door handles, touch screens when checking in, etc.)

So long as you are not traveling to China, your travel plans shouldn’t be impacted, at this time.

I have also received questions about touching things in public, like ballet barres and supermarket carts. In general, it’s flu season…wipe things down that others have touched. If you can’t, use your hand sanitizer before and after touching shared surfaces. If you work in an open office, the transmission of colds and flu on things like coffee makers, printers and other surfaces is very high, so follow the same safety protocols.

That’s it for today’s update. I will keep you apprised as the situation unfolds. Based on the R0 number, we can expect that there will be many more cases in the near future. Control of the epidemic, and stopping it from becoming a pandemic will depend on government response AND the actions we all take as individuals to stop the spread of germs.

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Supreme Court Term Preview: October 2019 (Part III)

By tmess2 | Published September 25, 2019

As noted in Part I and Part II of this series, there are some very big cases in the first two months of the upcoming Supreme Court term — the applicability of Title VII to sexual orientation and issues related to the board managing Puerto Rico’s debt in October and DACA in November.  Likewise, December has a big case — maybe.

That big case — New York State Rifle and Pistol Association vs. City of New York — is currently set on the first day of the December argument session.  At issue is a New York City ordinance which limits the transportation of firearms by gunowners.  The corporate gun lobby has pushed a Second Amendment challenge to this ordinance. Now, for the catch.  When the Supreme Court took this case, New York City and New York State saw the writing on the wall with this Court.  The original ordinance probably went too far even for those who want tighter restrictions on the sale of handguns.  So New York City repealed the original ordinance and passed a new less restrictive ordinance, and New York State passed legislation clarifying the powers of cities in this matter.  Because the ordinance being challenged no longer exists, the City wants the Supreme Court to dismiss the case as there is no longer a live “controversy” — and under the Constitution the Supreme Court can only hear “cases and controversies.”  There are exceptions which allow a court to review repealed statutes and, one of the issues at the October 1 term opening conference is whether to dismiss this case or keep it on the calendar for argument.

The second case on December 2 involves how copyright law applies to government documents.  Generally speaking, past decisions hold that governments are not allowed to copyright judicial opinions or statutes.  So, any person can go to the library (or an internet site) and copy a judicial opinion or a statute and then establish their own internet site (or publish and sell their own books) containing those opinions or statutes.  This limitation on government copyrights assure that the public has access to the decisions of their government.  One of the things that publishers do to enhance value is create “annotated” copies of statutes — a version in which each statute is followed by a series of notes setting forth the cases that have considered that statute and what those cases have held.  For the most part, these annotated versions are created by private companies.  Georgia, however, has an official copy of its annotated statutes.  The issue is — since a state can’t copyright its statutes or court cases — whether a state can copyright an annotated version of its statutes.  Many of the main legal publishing companies have filed briefs generally in support of Georgia (for fear that a holding in favor of the public interest groups in this case might eventually be used to attack their copyrights on their annotations as well).

There are two cases on December 3.  The first is a technical tax law case involving “consolidated” corporate returns (one return filed on behalf of the parent corporation and its subsidiaries) and which corporation “owns” what part of any refunds or owes any additional payments.  The other case involves environmental law, specifically whether the federal law governing cleanup at so-called “Superfund” sites preempts any state law claims seeking additional steps to restore those sites.

The two cases on December 4 both involve technical issues of law.  The first includes the “discovery” rule for statutes of limitations.  Generally speaking, the time limit for filing a case is calculated from the date when the plaintiff discovers the injury.  In this case, the corporation made disclosure of the relevant information to affected individuals.  Of course, not every person who is a beneficiary of a benefits plan (whether pension or health insurance or other) reads every notice sent to them by the plan management.  So the issue is whether plaintiffs should be deemed to be on notice of and have discovered their claim based on that disclosure.

The other case involves the rules governing appeals in federal cases, specifically in habeas cases.  Generally speaking, the losing party in a case has the ability to file a motion for a new trial (or to amend the judgment) under Federal Civil Rule 59(e).  If such a motion is filed, the time for filing an appeal begins to run when the motion is denied.  However, in habeas cases, prisoners are only allowed to file one petition for habeas relief barring unusual circumstances.   Sometimes, prisoners — rather than filing a proper motion for new trial challenging the trial court’s ruling on the claims that were raised in their petition — file a pleading that they label as a Rule 59 motion that actually asserts new claims for relief.  The issue in this case is whether the trial court should be required to give notice to the inmate that the motion is not proper and will not extend the time for filing an appeal (prior to that time expiring),  In this case, the trial court treated the motion as a proper motion (and it might have been) but the appellate court found that the motion was not a proper Rule 59 motion and used that finding to dismiss the appeal as untimely without addressing the merits of the denial of the claims raised in the original habeas petition.  While a lot of issues involving habeas petitions involve conflict between prosecutors (who want finality to convictions) and defendants (who oppose any limit on their ability to raise new challenges to their convictions), this case should not.  There are time limits on the filing of a Rule 59 motion and a defendant only gets one such motion.  If the motion fails to state any valid grounds for relief, it should not take the trial court long to issue a simple order finding that the motion is without merit.  (In this way, Rule 59 motions differ from Rule 60 motions which can be filed years later.  It makes sense for the Supreme Court to rule that a Rule 60 motion which seeks to raise new claims is not a proper Rule 60 motion and should be treated as a successive petition.)

The second week starts with a consolidated argument in two cases on December 9.  Both cases relate to immigration.  Like in some other categories of law, there are certain circumstances in which courts recognize “equitable tolling” that will extend the deadline for a party to take a certain action.   In these two cases, the issue is whether an appellate court can review a decision denying equitable tolling.  The other case on December 9 also involves the time limits for taking action but in the context of when a party can request (and the Patent Office can consider and grant) an administrative review of a decision granting a patent.

December 10 sees the second big argument of December.  In a consolidated argument, the Supreme Court is again considering the Affordable Care Act.  The issue in these cases involves the refusal of Congressional Republicans to appropriate the payment to insurers required under the Affordable Care Act (to compensate for claims exceeding premiums).   The basic issue is whether Congress can use restrictions on actually making payments in appropriations bills to implicitly amend a statute that creates an entitlement.

The other case on December 10 is a federal criminal case.  Like the December 4 habeas argument, this case involves a somewhat absurd ruling by a federal appellate court.  Typically, in a trial, a party needs to make an objection to raise an evidentiary or procedural issue and “preserve” it for appeal.  The reason for this rule is to give the trial court the opportunity to make the correct decision.  There are some exceptions to this rule.  At sentencing, the parties put forth their own calculations of the proper sentencing guidelines and make arguments for the appropriate sentencing.  The issue here is whether a party must — after the trial court rejects those arguments and imposes a sentence above that proposed by defendant (or below that proposed by the prosecution) — formally object to the sentencing decision to put the trial court on notice that the party disagrees with the sentencing decision.  The appellate court found that such a formal objection was necessary.  Even the government is not defending this decision, and the Supreme Court has had to appoint an attorney to make arguments in defense of the decision.  (Something that happens about ever other year.)

December 11 closes the fall arguments with two technical cases.  The first case involves two questions related to the international convention on child abduction cases.  The first question asks the appropriate standard for review in these cases.  (There are a variety of standards used by appellate courts to review the decision of the trial courts.  All of these standards make it difficult to win on appeal — generally because only trial courts hear witnesses and so appellate courts do not second guess the factual determinations of trial courts — but some make it more difficult than others.)  The second asks what facts must be found to establish which country is the “habitual residence” of the child.

The other case is a death penalty case.  Oversimplifying, for approximately 40 years, the law has required that states had to establish a list of “aggravating circumstances” that would distinguish “death eligible” murder cases from other cases.  And approximately 15 years ago, the U.S. Supreme Court held that juries had to make the decision of whether those circumstances had been proved by the prosecution.  However, that decision only applied to new cases and did not apply to cases in which the direct appeal was already over.  (In most capital cases, there are three rounds of review — direct appeal, state collateral review, and federal habeas collateral review.)  Arizona was one of those states which prior to that ruling allowed judges to find aggravating circumstances and then allowed its appellate courts to reweigh the evidence to determine if the sentence of death imposed by the trial court was appropriate.  In this case, which was final before the ruling mandating that juries find aggravating circumstances, the inmate ultimately had his original sentence set aside on federal habeas review for other errors — by the Arizona Supreme Court failing to consider certain mitigating evidence.   The Arizona courts found that, because his original sentence was final before he had a right to jury finding of aggravating circumstances, the inmate did not have a right to a jury hearing on aggravating circumstances as part of his re-sentencing and the Arizona Supreme Court could reweigh the evidence (taking into account the federal ruling that it had to consider all of the defendant’s mitigating evidence) to determine if the original sentence was still valid.  The issue is whether — since the original decision on direct appeal was set aside — the Arizona Supreme Court should have applied current law (including the right to jury findings on aggravated circumstances) rather than the law as it was at the time of the original direct appeal.

With the Affordable Care Act (and maybe the Second Amendment) joining DACA and LGBT issues on the Supreme Court docket, it is almost impossible that the Supreme Court’s decisions from this term will not create significant controversy that will become campaign issues in the fall (and maybe even in the primary if some of the opinions come quickly but it is highly unlikely that any of these big cases will be decided before Super Tuesday).  Democrats need to have a strong vision of what we expect from our justices and judges, particularly in light of the fact that the most extreme part of the Republican Party has used coded language that purports to want neutral justices while actually pushing for justices who will misinterpret the law and rewrite history to support those rulings.  We also need to recognize that many of this term’s controversial cases involve statutory issues that can be fixed by Congress.  (By my count, of the eleven cases most likely to create some degree of controversy, ten of the cases involve federal statutes that could be fixed by Congress in 2021.) So we not only need to get back the White House, but we need to win the Senate and House as well.

 

 

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