Court rejects GOP redistricting plans in North Carolina, Pennsylvania
In a victory for Democrats, the Supreme Court has turned away efforts from Republicans in North Carolina and Pennsylvania to block state court-ordered congressional districting plans. In separate orders late Monday, the justices are allowing maps selected by each state’s Supreme Court to be in effect for the 2022 elections. Those maps are more favorable to Democrats than the ones drawn by the states’ legislatures. In North Carolina, the map most likely will give Democrats an additional House seat in 2023. The Pennsylvania map also probably will lead to the election of more Democrats, the Republicans say, as the two parties battle for control of the U.S. House of Representatives in the midterm elections in November. The justices provided no explanation for their actions, as is common in emergency applications on what is known as the “shadow docket.” While the high court did not stop the state court-ordered plans from being used in this year’s elections, four conservative justices indicated they want it to confront the issue that could dramatically limit the power of state courts over federal elections in the future. The Republicans argued that state courts lack the authority to second-guess legislatures’ decisions about the conduct of elections for Congress and the presidency. “We will have to resolve this question sooner or later, and the sooner we do so, the better. This case presented a good opportunity to consider the issue, but unfortunately, the court has again found the occasion inopportune,” Justice Samuel Alito wrote in a dissent from the Supreme Court’s order, joined by Justices Neil Gorsuch and Clarence Thomas. Justice Brett Kavanaugh made a similar point but said he didn’t want to interfere in this year’s electoral process, which already is underway. The filing deadline in North Carolina was Friday. The state courts were involved because of partisan wrangling and lawsuits over congressional redistricting in both states, where the legislatures are controlled by Republicans, the governors are Democrats, and the state Supreme Courts have Democratic majorities. In Pennsylvania, Democratic Gov. Tom Wolf vetoed the plan the Republican-controlled Legislature approved, saying it was the result of a “partisan political process.” The state, with a delegation of nine Democrats and nine Republicans, is losing a seat in the House following the 2020 Census. Republicans said the map they came up with would elect nine Democrats and eight Republicans. State courts eventually stepped in and approved a map that probably will elect 10 Democrats, the GOP argued. North Carolina is picking up a seat in the House because of population gains. Republican majorities in the Legislature produced an initial plan most likely to result in 10 seats for Republicans and four for Democrats. The governor does not have veto power over redistricting plans in North Carolina. After Democrats sued, the state’s high court selected a map that likely will elect at least six Democrats. Lawsuits are continuing in both states, but the Supreme Court signaled in Monday’s orders that this year’s elections for Congress in North Carolina and Pennsylvania would take place under the maps approved by the states’ top courts. Republished with the permission of the Associated Press.
Justices seem to favor docs convicted in pain pill schemes
In a case stemming from the opioid addiction crisis, the Supreme Court on Tuesday appeared ready to side with two imprisoned doctors who wrote thousands of prescriptions for pain medication in short periods. The justices signaled they would rule that the doctors’ trials were unfair because they were prevented from mounting a “good faith” defense that they did not intend any harm to patients. Justice Brett Kavanaugh said that prosecutors must prove that doctors knew they were illegally prescribing powerful pain drugs in violation of the federal Controlled Substances Act because the stakes are so high. Juries sometimes make close calls in criminal cases, Kavanaugh said, and if a doctor is on the losing end of a close call, “you go to prison for 20 years.” The court is weighing appeals from Xiulu Ruan of Mobile, Alabama, and Shakeel Kahn, who practiced medicine in Ft. Mohave, Arizona, and Casper, Wyoming. Ruan is serving a 21-year federal prison term. Kahn is in prison for up to 25 years. A favorable ruling could lead to new trials or the dismissals of charges against them. The case comes to the court amid record numbers of drug overdose deaths, many from the highly lethal opioid fentanyl. Members of both parties in Congress also are calling for a nimble, new national plan to reduce overdose deaths that include reducing the supply of illicit drugs and increasing treatment for addiction. As is often true of Supreme Court cases, which focus on legal principles rather than the facts, the justices were less interested in the details of the doctors’ actions than they were in the fairness of the criminal cases against them. Ruan and a partner, James Couch, were convicted of overprescribing medications at their Physicians Pain Specialists of Alabama clinic and a pharmacy. The two doctors wrote 66,892 prescriptions in 2014, investigators said. They grossed $20 million between 2012 and a raid in 2015, prosecutors said. Kahn was convicted of conspiracy to unlawfully distribute and dispense controlled substances resulting in death, including oxycodone, an opioid pain reliever, and fentanyl, a synthetic opioid. Jessica Burch, of Lake Havasu City, Arizona, was a patient of Kahn’s who died from an overdose in 2015. He wrote nearly 15,000 prescriptions for controlled substances between 2011 and the end of 2016, totaling nearly 2.2 million pills and of which nearly half were oxycodone, prosecutors said. Justice Samuel Alito, a former federal prosecutor, appeared to be the only member of the court who was clearly on the government’s side. Justice Department lawyer Eric Feigin said the court shouldn’t buy the doctors’ arguments. “They want to be free of any obligation even to undertake any minimal effort to act like doctors when they prescribe dangerous, highly addictive, and, in one case, lethal dosages of drugs to trusting and vulnerable patients,” Feigin said. Lawrence Robbins, representing Ruan, said the law should give doctors and their patients enough room to “make the best choices for the individual care of what is often invisible and yet real and intractable pain.” A decision is expected by late June. Republished with the permission of the Associated Press.
High court’s Alabama ruling sparks alarm over voting rights
The Supreme Court’s decision to halt efforts to create a second mostly Black congressional district in Alabama for the 2022 election sparked fresh warnings Tuesday that the court is becoming too politicized, eroding the Voting Rights Act and reviving the need for Congress to intervene. The Supreme Court’s conservative majority put on hold a lower court ruling that Alabama must draw new congressional districts to increase Black voting power. Civil rights groups had argued that the state, with its “sordid record” of racial discrimination, drew new maps by “packing” Black voters into one single district and “cracking” Black voters from other districts in ways that dilute their electoral power. Black voters are 26% of Alabama’s electorate. In its 5-4 decision late Monday, the Supreme Court said it would review the case in full, a future legal showdown in the months to come that voting advocates fear could further gut the protections in the landmark Civil Rights-era law. It’s “the latest example of the Supreme Court hacking away at the protections of the voting rights act of 1965,” said Sen. Dick Durbin, D-Ill., chairman of the Judiciary Committee. “Congress must act. We must restore the Voting Rights Act.” The outcome all but ensures Alabama will continue to send mostly white Republicans to Washington after this fall’s midterm elections and applies new pressure on Congress to shore up voter protections after a broader elections bill collapsed last month. And the decision shows the growing power of the high court’s conservative majority as President Joe Biden is under his own pressures to name a liberal nominee to replace retiring Justice Stephen Breyer. Rep. Terri Sewell, the only Black representative from Alabama, said the court’s decision underscores the need for Congress to pass her bill, the John R. Lewis Voting Rights Advancement Act, to update and ensure the law’s historic protections. “Black Alabamians deserve nothing less,” Sewell said in a statement. The case out of Alabama is one of the most important legal tests of the new congressional maps stemming from the 2020 census count. It comes in the aftermath of court decisions that have widely been viewed as chiseling away at race-based protections of the Voting Rights Act. Alabama and other states with a known history of voting rights violations were no longer under federal oversight, or “preclearance,” from the Justice Department for changes to their election practices after the court, in its 2013 Shelby v. Holder decision, struck down the bill’s formula as outdated. As states nationwide adjust their congressional districts to fit population and demographic data, Alabama’s Republican-led Legislature drew up new maps last fall that were immediately challenged by civil rights groups on behalf of Black voters in the state. Late last month, a three-judge lower court, which includes two judges appointed by former President Donald Trump, had ruled that the state had probably violated the federal Voting Rights Act by diluting the political power of Black voters. This finding was rooted, in part, in the fact that the state did not create a second district in which Black voters made up a majority or close to it. Given that more than one person in four in Alabama is Black, the plaintiffs had argued the single Black district is far less than one person, one vote. “Black voters have less opportunity than other Alabamians to elect candidates of their choice to Congress,” the three-judge panel wrote in the 225-page ruling. The lower court gave the Alabama legislature until Friday to come up with a remedial plan. Late Monday, the Supreme Court, after an appeal from Alabama, issued a stay. Justices Brett Kavanaugh and Samuel Alito, part of the conservative majority, said the lower court’s order for a new map came too close to the 2022 election. Chief Justice John Roberts joined his three more liberal colleagues in dissent. “It’s just a really disturbing ruling,” said Sen. Cory Booker, D-N.J., a member of the Judiciary Committee, who called the Supreme Court’s decision “a setback to racial equity, to ideals of one person, one vote.” Rep. Joyce Beatty, D-Ohio, and the chair of the Congressional Black Caucus said the decision “hits at the guts of voting rights.” She told The Associated Press: “We’re afraid of what will happen from Alabama to Texas to Florida and even to the great state of Ohio.” White House Press Secretary Jen Psaki said the court decision exposes the need for Congress to legislate to protect voting rights. The erosion of those rights is “exactly what the Voting Rights Act is in place to prevent.” Critics went beyond assailing the decision at hand to assert that the court has become political. “I know the court likes to say it’s not partisan, that it’s apolitical, but this seems to be a very political decision,” said Democratic Sen. Chris Van Hollen of Maryland. Rep. Hakeem Jeffries, D-N.Y., tweeted that the court majority has “zero legitimacy.” Rep. Barbara Lee, D-Calif., tweeted that the court’s action was “Jim Crow 2.0.” Alabama Republicans welcomed the court’s decision. “It is great news,” said Rep. Mo Brooks, who is running for the GOP nomination for Senate. He called the lower court ruling an effort to “usurp” the decisions made by the state’s legislature. The justices will, at some later date, decide whether the map produced by the state violates the voting rights law, a case that could call into question “decades of this Court’s precedent” about Section 2 of the act, Justice Elena Kagan wrote in dissent. Section 2 prohibits racial and other discrimination in voting procedures. Voting advocates see the arguments ahead as a showdown over voting rights they say are being slowly but methodically altered by the Roberts court. The Supreme Court in the Shelby decision did away with the preclearance formula under Section 5 of the Voting Rights Act. And last summer, the conservative majority in Bronvich vs. the Democratic National Committee upheld voting limits in an Arizona case concerning early ballots that a lower court had found discriminatory under Section 2. With the Alabama case, the court
Supreme Court sides with GOP in Alabama election map case
The Supreme Court on Monday put on hold a lower court ruling that Alabama must draw new congressional districts before the 2022 elections to increase Black voting power. The high court order boosts Republican chances to hold six of the state’s seven seats in the House of Representatives. The court’s action, by a 5-4 vote, means the upcoming elections will be conducted under a map drawn by Alabama’s Republican-controlled legislature that contains one majority-Black district, represented by a Black Democrat, in a state in which more than a quarter of the population is Black. A three-judge lower court, including two judges appointed by former President Donald Trump, had ruled that the state had likely violated the federal Voting Rights Act by diluting the political power of Black voters by not creating a second district in which they made up a majority, or close to it. Justices Brett Kavanaugh and Samuel Alito, part of the conservative majority, said the lower court acted too close to the 2022 election cycle. Chief Justice John Roberts joined his three more liberal colleagues in dissent. The justices will, at some later date, decide whether the map produced by the state violates the landmark voting rights law, a case that could call into question “decades of this Court’s precedent about Section 2 of the VRA,” Justice Elena Kagan wrote in dissent. That decision presumably will govern elections in 2024 through the end of the decade in Alabama and could affect minority political representation elsewhere in the country, too. Alabama lawmakers redrew the state’s congressional districts following the results of the 2020 census. Several groups of voters sued, arguing that the new maps diluted the voting power of Black residents. In a unanimous ruling in late January, the three judges said that the groups were likely to succeed in showing that the state had violated the Voting Rights Act. As a result, the panel ordered lawmakers to redraw the districts so Black voters would be a majority, or close to it, in two districts, not one. The ruling ran more than 200 pages. The panel wrote that “we do not regard the question … as a close one.” Alabama asked the Supreme Court to put the ruling on hold while it appeals, and the justices agreed. The state argued that it drew the new map guided by race-neutral principles and that the new map is similar to past maps. More than a dozen mostly Republican-led states had filed a brief urging the justices to side with Alabama and allow it to use the maps it originally drew. Deuel Ross, a lawyer for Alabamians who sued, called the state’s congressional districts “a textbook case of a Voting Rights Act violation” and said the high court’s decision to intervene is disheartening. But the facts are clear, Ross, a lawyer with the NAACP Legal Defense and Educational Fund, wrote in an email to The Associated Press. “Alabama’s current congressional map violates the Voting Rights Act,” he said. “The litigation will continue, and we are confident that Black Alabamians will eventually have the congressional map they deserve — one that fairly represents all voters.” Roberts, who typically votes against consideration of race, wrote that he shares some of Alabama’s concerns but still would have let the redrawn districts govern the 2022 election and have future elections governed by the ultimate outcome in the case. Kavanaugh, writing to explain his vote, stressed that the court has repeatedly declined in the past to change the rules close to an election. “When an election is close at hand, the rules of the road must be clear and settled. Late judicial tinkering with election laws can lead to disruption and to unanticipated and unfair consequences for candidates, political parties, and voters, among others. It is one thing for a State on its own to toy with its election laws close to a State’s elections. But it is quite another thing for a federal court to swoop in and re-do a State’s election laws in the period close to an election,” he wrote in an opinion Alito joined. Taking issue with Kavanaugh, Kagan noted that the lower court ruled months before any votes will be cast. She criticized the conservatives for using the emergency application process known as the shadow docket “to signal or make changes in the law, without anything approaching full briefing and argument.” Republished with the permission of the Associated Press.
Supreme Court halts COVID-19 vaccine rule for U.S. businesses
The Supreme Court has stopped a major push by the Biden administration to boost the nation’s COVID-19 vaccination rate, a requirement that employees at large businesses get a vaccine or test regularly and wear a mask on the job. At the same time, the court is allowing the administration to proceed with a vaccine mandate for most health care workers in the U.S. The court’s orders Thursday came during a spike in coronavirus cases caused by the omicron variant. The court’s conservative majority concluded the administration overstepped its authority by seeking to impose the Occupational Safety and Health Administration’s vaccine-or-test rule on U.S. businesses with at least 100 employees. More than 80 million people would have been affected, and OSHA had estimated that the rule would save 6,500 lives and prevent 250,000 hospitalizations over six months. “OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here,” the conservatives wrote in an unsigned opinion. In dissent, the court’s three liberals argued that it was the court that was overreaching by substituting its judgment for that of health experts. “Acting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies,” Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor wrote in a joint dissent. President Joe Biden said he was “disappointed that the Supreme Court has chosen to block common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law.” Biden called on businesses to institute their own vaccination requirements, noting that a third of Fortune 100 companies already have done so. When crafting the OSHA rule, White House officials always anticipated legal challenges — and privately, some harbored doubts that it could withstand them. The administration nonetheless still views the rule as a success at already driving millions of people to get vaccinated and encouraging private businesses to implement their own requirements that are unaffected by the legal challenge. The OSHA regulation had initially been blocked by a federal appeals court in New Orleans, then allowed to take effect by a federal appellate panel in Cincinnati. Both rules had been challenged by Republican-led states. In addition, business groups attacked the OSHA emergency regulation as too expensive and likely to cause workers to leave their jobs at a time when finding new employees already is difficult. The National Retail Federation, the nation’s largest retail trade group, called the Supreme Court’s decision “a significant victory for employers.” The vaccine mandate that the court will allow to be enforced nationwide scraped by on a 5-4 vote, with Chief Justice John Roberts and Justice Brett Kavanaugh joining the liberals to form a majority. The mandate covers virtually all health care workers in the country, applying to providers that receive federal Medicare or Medicaid funding. It affects 10.4 million workers at 76,000 health care facilities as well as home health care providers. The rule has medical and religious exemptions. Biden said that decision by the court “will save lives.” In an unsigned opinion, the court wrote: “The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.” It said the “latter principle governs” in the healthcare arena. Justice Clarence Thomas wrote in dissent that the case was about whether the administration has the authority “to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo.” He said the administration hadn’t shown convincingly that Congress gave it that authority. Justices Samuel Alito, Neil Gorsuch, and Amy Coney Barrett signed onto Thomas’ opinion. Alito wrote a separate dissent that the other three conservatives also joined. Decisions by federal appeals courts in New Orleans and St. Louis had blocked the mandate in about half the states. The administration already was taking steps to enforce it elsewhere. More than 208 million Americans, 62.7% of the population, are fully vaccinated, and more than a third of those have received booster shots, according to the federal Centers for Disease Control and Prevention. All nine justices have gotten booster shots. The courthouse remains closed to the public, and lawyers and reporters are asked for negative test results before being allowed inside the courtroom for arguments, though vaccinations are not required. The justices heard arguments on the challenges last week. Their questions then hinted at the split verdict that they issued Thursday. A separate vaccine mandate for federal contractors, on hold after lower courts blocked it, has not been considered by the Supreme Court. Republished with the permission of the Associated Press.
Supreme Court orders ‘Remain in Mexico’ policy reinstated
The Supreme Court on Tuesday said the Biden administration likely violated federal law in trying to end a Trump-era program that forces people to wait in Mexico while seeking asylum in the U.S. With three liberal justices in dissent, the high court refused to block a lower court ruling ordering the administration to reinstate the program informally known as Remain in Mexico. It’s not clear how many people will be affected and how quickly. Under the lower court ruling, the administration must make a “good faith effort” to restart the program. There also is nothing preventing the administration from trying again to end the program, formally called Migrant Protection Protocols. A federal judge in Texas had previously ordered that the program be reinstated last week. Both he and the 5th U.S. Circuit Court of Appeals refused the administration’s request to put the ruling on hold. Justice Samuel Alito ordered a brief delay to allow the full court time to consider the administration’s appeal to keep the ruling on hold while the case continues to make its way through the courts. The 5th Circuit ordered expedited consideration of the administration’s appeal. The court offered little explanation for its action, although it cited its opinion from last year rejecting the Trump administration’s effort to end another immigration program, Deferred Action for Childhood Arrivals. In that case, the court held that the decision to end DACA was “arbitrary and capricious,” in violation of federal law. The administration has “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious,” the court wrote Tuesday in an unsigned order. The three dissenting justices, Stephen Breyer, Elena Kagan, and Sonia Sotomayor, did not write an opinion expressing their views of the case. In a statement, the Department of Homeland Security said it regrets that the high court declined to issue a stay. The department said it would continue to challenge the district court’s order. The American Civil Liberties Union called on the administration to present a fuller rationale for ending Remain in Mexico that could withstand court scrutiny. “The government must take all steps available to fully end this illegal program, including by re-terminating it with a fuller explanation. What it must not do is use this decision as cover for abandoning its commitment to restore a fair asylum system,” said Omar Jadwat, director of the ACLU’s immigrant rights project. During Donald Trump’s presidency, the policy required tens of thousands of migrants seeking asylum in the U.S. to turn back to Mexico. It was meant to discourage asylum seekers, but critics said it denied people the legal right to seek protection in the U.S. and forced them to wait in dangerous Mexican border cities. The judge, U.S. District Judge Matthew J. Kacsmaryk in Amarillo, Texas, ordered that the program be reinstated in response to a lawsuit filed by the states of Texas and Missouri, whose governors have been seeking to reinstate some of the hard-line anti-immigration policies of the Trump administration. The Biden administration argued in briefs that the president has “clear authority to determine immigration policy” and that Homeland Security Secretary Alejandro Mayorkas had discretion in deciding whether to return asylum seekers to Mexico. The policy has been dormant for more than a year, and the administration argued that abruptly reinstating it “would prejudice the United States’ relations with vital regional partners, severely disrupt its operations at the southern border, and threaten to create a diplomatic and humanitarian crisis.” The Trump administration largely stopped using the “Remain in Mexico” policy at the start of the pandemic, at which point it began turning back virtually everyone crossing the Southwest border under a different protocol — a public health order that remains in effect. President Joe Biden suspended the program on his first day of office, and the Homeland Security Department ended it in June. Kacsmaryk was nominated to the federal bench by Trump. The 5th Circuit panel that ruled Thursday night included two Trump appointees, Andrew Oldham and Cory Wilson, along with Jennifer Walker Elrod, nominated to the appeals court by President George W. Bush. At the high court, at least five of the six conservative justices, including three Trump appointees, voted for the restart of the program. Under the court’s opaque treatment of emergency appeals, the justices don’t always say publicly how they voted. Republished with the permission of the Associated Press.
‘Obamacare’ survives: Supreme Court dismisses big challenge
The Supreme Court, though increasingly conservative in makeup, rejected the latest major Republican-led effort to kill the national health care law known as “Obamacare” on Thursday, preserving insurance coverage for millions of Americans. The justices, by a 7-2 vote, left the entire Affordable Care Act intact in ruling that Texas, other GOP-led states, and two individuals had no right to bring their lawsuit in federal court. The Biden administration says 31 million people have health insurance because of the law, which also survived two earlier challenges in the Supreme Court. The law’s major provisions include protections for people with existing health conditions, a range of no-cost preventive services, expansion of the Medicaid program that insures lower-income people, and access to health insurance markets offering subsidized plans. “The Affordable Care Act remains the law of the land,” President Joe Biden, said, celebrating the ruling. He called for building further on the law that was enacted in 2010 when he was vice president. Also left in place is the law’s now-toothless requirement that people have health insurance or pay a penalty. Congress rendered that provision irrelevant in 2017 when it reduced the penalty to zero. The elimination of the penalty had become the hook that Texas and other GOP-led states, as well as the Trump administration, used to attack the entire law. They argued that without the mandate, a pillar of the law when it was passed, the rest of the law should fall, too. And with a Supreme Court that includes three appointees of former President Donald Trump, opponents of “Obamacare” hoped a majority of the justices would finally kill the law they have been fighting for more than a decade. But the third major attack on the law at the Supreme Court ended the way the first two did, with a majority of the court rebuffing efforts to gut the law or get rid of it altogether. Trump’s appointees — Justices Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh — split their votes. Kavanaugh and Barrett joined the majority. Gorsuch was in dissent, signing on to an opinion from Justice Samuel Alito. Justice Stephen Breyer wrote for the court that the states and people who filed a federal lawsuit “have failed to show that they have standing to attack as unconstitutional the Act’s minimum essential coverage provision.” In dissent, Alito wrote, “Today’s decision is the third installment in our epic Affordable Care Act trilogy, and it follows the same pattern as installments one and two. In all three episodes, with the Affordable Care Act facing a serious threat, the Court has pulled off an improbable rescue.” Alito was a dissenter in the two earlier cases in 2012 and 2015, as well. Like Alito, Justice Clarence Thomas was in dissent in the two earlier cases, but he joined Thursday’s majority, writing, “Although this Court has erred twice before in cases involving the Affordable Care Act, it does not err today.” Because it dismissed the case for the plaintiff’s lack of legal standing — the ability to sue — the court didn’t actually rule on whether the individual mandate is unconstitutional now that there is no penalty for forgoing insurance. Lower courts had struck down the mandate, in rulings that were wiped away by the Supreme Court decision. With the latest ruling, the Supreme Court reaffirmed that “the Affordable Care Act is here to stay,” former President Barack Obama said, adding his support to Biden’s call to expand the law. Texas Attorney General Ken Paxton pledged to continue the fight against “Obamacare,” which he called a “massive government takeover of health care.” But it’s not clear what Republicans can do, said Larry Levitt, an executive vice president for the nonprofit Kaiser Family Foundation, which studies health care. “Democrats are in charge and they have made reinvigorating and building on the ACA a key priority,” Levitt said. “Republicans don’t seem to have much enthusiasm for continuing to try to overturn the law.” Republicans have pressed their argument to invalidate the whole law even though congressional efforts to rip out the entire law “root and branch,” in Senate GOP leader Mitch McConnell’s words, have failed. The closest they came was in July 2017 when Arizona Sen. John McCain, who died the following year, delivered a dramatic thumbs-down vote to a repeal effort by fellow Republicans. Chief Justice John Roberts said during arguments in November that it seemed the law’s foes were asking the court to do work best left to the political branches of government. The court’s decision preserves benefits that have become part of the fabric of the nation’s health care system. Polls show that the law has grown in popularity as it has endured the heaviest assault. In December 2016, just before Obama left office and Trump swept in calling the ACA a “disaster,” 46% of Americans had an unfavorable view of the law, while 43% approved, according to the Kaiser Family Foundation tracking poll. Those ratings flipped, and by February of this year, 54% had a favorable view, while disapproval had fallen to 39% in the same ongoing poll. The health law is now undergoing an expansion under Biden, who sees it as the foundation for moving the U.S. to coverage for all. His giant COVID-19 relief bill significantly increased subsidies for private health plans offered through the ACA’s insurance markets, while also dangling higher federal payments before the dozen states that have declined the law’s Medicaid expansion. About 1.2 million people have signed up with HealthCare.gov since Biden reopened enrollment amid high levels of COVID cases earlier this year. Most of the people with insurance because of the law have it through Medicaid expansion or the health insurance markets that offer subsidized private plans. But its most popular benefit is protection for people with preexisting medical conditions. They cannot be turned down for coverage on account of health problems or charged a higher premium. While those covered under employer plans already had such protections, “Obamacare” guaranteed them for people buying
Religion and the death penalty collide at the Supreme Court
The Supreme Court is sending a message to states that want to continue to carry out the death penalty: Inmates must be allowed to have a spiritual adviser by their side as they are executed. The high court around midnight Thursday declined to let Alabama proceed with the lethal injection of Willie B. Smith III. Smith had objected to Alabama’s policy that his pastor would have had to observe his execution from an adjacent room rather than the death chamber itself. The order from the high court follows two years in which inmates saw some rare success in bringing challenges based on the issue of chaplains in the death chamber. This time, liberal and conservative members of the court normally in disagreement over death penalty issues found common ground not on the death penalty itself but on the issue of religious freedom and how the death penalty is carried out. Justice Brett Kavanaugh, one of three justices who said they would have let Smith’s execution go forward, said Alabama’s policy applies equally to all inmates and serves a state interest in ensuring safety and security. But he said it was apparent that his colleagues who disagreed were providing a path for states to follow. States that want to avoid months or years of litigation over the presence of spiritual advisers “should figure out a way to allow spiritual advisors into the execution room, as other States and the Federal Government have done,” he wrote in a dissent joined by Chief Justice John Roberts. Justice Clarence Thomas also would have allowed the execution of Smith, who was sentenced to die for the 1991 murder of 22-year-old Sharma Ruth Johnson in Birmingham. Alabama had up until 2019 allowed a Christian prison chaplain employed by the state to be physically present in the execution chamber if requested by the inmate, but the state changed its policy in response to two earlier Supreme Court cases. Robert Dunham, the executive director of the Death Penalty Information Center, says the court’s order will most clearly affect states in the Deep South that have active execution chambers. Dunham said most state execution protocols, which set who is present in the death chamber, do not mention spiritual advisers. For most of the modern history of the U.S. death penalty since the 1970s, spiritual advisers have not been present in execution chambers, he said. The federal government, which under President Donald Trump resumed federal executions following a 17-year hiatus and carried out 13 executions, allowed a spiritual adviser to be present in the death chamber. The Biden administration is still weighing how it will proceed in death penalty cases. The court’s order in Smith’s case contained only statements from Kavanaugh and Justice Elena Kagan. “Willie Smith is sentenced to death, and his last wish is to have his pastor with him as he dies,” Kagan wrote for herself and liberal justices Sonia Sotomayor and Stephen Breyer, as well as conservative Amy Coney Barrett. Kagan added: “Alabama has not carried its burden of showing that the exclusion of all clergy members from the execution chamber is necessary to ensure prison security.” Justice Neil Gorsuch and Justice Samuel Alito did not make public their views, but at least one or perhaps both of them must have voted with their liberal colleagues to keep Smith’s execution on hold. The court’s yearslong wrestling with the issue of chaplains in the death chamber began in 2019, when the justices declined to halt the execution of Alabama inmate Domineque Ray. Ray had objected that a Christian chaplain employed by the prison typically remained in the execution chamber during a lethal injection, but the state would not let his imam be present. The next month, however, the justices halted the execution of a Texas inmate, Patrick Murphy, who objected after Texas officials wouldn’t allow his Buddhist spiritual adviser in the death chamber. Kavanaugh wrote at the time that states have two choices: Allow all inmates to have a religious adviser of their choice in the execution room or allow that person only in an adjacent viewing room. In response, the Texas prison system changed its policy, allowing only prison security staff into the execution chamber. But in June, the high court kept Texas from executing Ruben Gutierrez after he objected to the new policy. Diana Verm, a lawyer at the Becket Fund for Religious Liberty, which had submitted briefs in two of the spiritual adviser cases, said it was unusual for the court with its conservative majority to halt executions. “You can tell from some of the opinions that the justices don’t like the last-minute nature of execution litigation, but this is an area where they are saying: ’Listen … religious liberty has to be a part of the process if it’s going to happen,” Verm said. Republished with the permission of the Associated Press.
Dan Sutter: In case of emergency
Governments have taken numerous extraordinary actions to contain COVID-19. Once the pandemic is over, we can and should revisit the emergency powers laws guiding these policy decisions. How extraordinary have the activities been? Supreme Court Justice Samuel Alito described them as “previously unimaginable restrictions on individual liberty.” Confinement of the non-sick through stay-at-home orders and open-ended “nonessential” business closures are unprecedented. A recent scholarly paper contends that COVID has set off an “authoritarian pandemic”. America was founded on the belief that government serves citizens, not the other way around. Our founders created a limited government with the Constitution delegating only specifically enumerated powers to the Federal government. Washington was prohibited from doing anything not specifically authorized. The exercise of new powers without specific authorization should consequently concern proponents of freedom. One concern arises because we do not know precisely when a government may become too strong to remain limited. Beyond this, emergencies have provided the rationale (or excuse) for many expansions of power, as economic historian Robert Higgs documented in Crisis and Leviathan. Liberty-minded scholars acutely fear the threat posed by crises. One of the 20th Century’s greatest economists was Friedrich Hayek. In Law, Legislation, and Liberty he discusses how markets and the common law enable peaceful cooperation and the role for government in a free society. Hayek also proposed protecting freedom by separating the declaration of an emergency from the exercise of these powers. Separation would thwart limit a would-be tyrant wanting to rule by emergency decree. States’ emergency powers laws differ, but Alabama’s illustrates the typical lack of separation. While the governor and state legislature can both declare an emergency, the governor exercises the emergency powers. The law allows a state of emergency for only 60 days, but the governor can just issue a new declaration. I believe Governor Kay Ivey has exercised these powers responsibly, but some governors have abused this dual power. How might we separate these powers? If the governor is going to exercise emergency power, then someone else must declare the emergency. Within the current structure of government, the state legislature and Supreme Court are options. But we could also create a new board to declare public health emergencies. A new board could incorporate relevant expertise. Legislators come from all walks of life and judges are trained in law. A board without independent experts as members would likely be dependent on the state’s experts. Yet since the Alabama Department of Public Health would likely formulate pandemic policies, we would not have full separation. Expertise should not be exclusively from the field of public health. Vanderbilt economist Kip Viscusi has extensively studied risk regulation and observes that government agencies charged with managing one type of risk exhibit excessive focus on “their” risk. The Environmental Protection Agency, for instance, minimizes environmental risks, resulting in enormous expenditures on trivial risks. Tunnel vision becomes worse when regulatory agencies overlap with academic disciplines, as with public health. The vastness of accumulated human knowledge requires that scholarly expertise be extremely narrow. This provides perspective, I think, on COVID-19 policy mistakes. We have focused excessively on the virus, with the CDC even preventing evictions to stem COVID-19. Even other elements of healthcare have been sacrificed, with cancer screenings down over 20 percent and childhood vaccination programs disrupted. And this is before weighing the enormous mental health, economic and educational impacts of pandemic policies. Expertise from other areas of health as well as business and economics should help declare an emergency. COVID-19 is not the last pandemic humanity will face. And because (as I have discussed previously) health and safety are luxury goods, the old ways, namely letting pandemics run their course, will never seem appropriate again. We need a better governance structure for public health emergencies to safeguard our health and freedom in the future. Daniel Sutter is the Charles G. Koch Professor of Economics with the Manuel H. Johnson Center for Political Economy at Troy University and host of Econversations on TrojanVision. The opinions expressed in this column are the author’s and do not necessarily reflect the views of Troy University.
Supreme Court Justices return for season of big decisions, amid campaign
There is a bumper crop of hot issues on the court’s agenda.
Justice Samuel Alito rallies conservatives in tribute to Antonin Scalia
Supreme Court Justice Samuel Alito issued a rallying cry to conservatives Thursday in the wake of newfound strength following Donald Trump‘s election. Alito told the Federalist Society conference of conservative lawyers, judges and legal thinkers that religious freedom and gun rights are among “constitutional fault lines,” important issues at stake in the federal courts. He did not mention the election or the vacancy that was created by the death last February of Justice Antonin Scalia – an opening Trump will now fill. Alito paid tribute to Scalia, a longtime colleague and conservative ally in high court battles on hot-button social and political issues. Scalia, an early adviser to the Federalist Society and a hero to many of its 40,000 members, is sorely missed on the court, Alito said at the group’s meeting in Washington. “We are left to ask ourselves WWSD,” what would Scalia do, Alito said. The lettering is a play on the phrase “WWJD,” for what would Jesus do. The court has been operating with eight justices since Scalia’s death because Senate Republicans blocked action on President Barack Obama’s nomination of Judge Merrick Garland. Alito, Justice Clarence Thomas and nine judges on Trump’s list of potential high court picks were on the schedule at the conference, which has turned into an impromptu job fair for spots in the new administration. “The mood has changed. Everyone is going to be thinking, ‘Maybe someone here is going to be filling Justice Scalia’s shoes,’” said Abbe Gluck, a Yale Law professor who is not a member of the group but will participate in the conference. The Federalist Society got its start on college campuses when Ronald Reagan was in the White House. It was conceived as a way to counter what its members saw as liberal domination of the nation’s law-school faculties. Its influence was pronounced during the presidency of George W. Bush, when its leaders helped rally support for Senate confirmation of Alito and Chief Justice John Roberts. The group was so successful that it spawned copycat liberal organizations. Speaking at a Federalist Society event in the Bush years was akin to an out-of-town preview of a Broadway show for conservative lawyers looking for administration jobs or judgeships, author Mark Tushnet has written. Over the past eight years, the group provided a forum for opponents of President Barack Obama‘s court choices and policies, although the Federalist Society itself does not endorse candidates or take policy positions. Some of its leaders backed Senate Majority Leader Mitch McConnell‘s refusal to act on Garland’s nomination. That political strategy paid unexpected and huge dividends for conservatives with Trump’s election. The society’s star again appears to be on the rise. “Anytime there’s a major shift in the power of government, it’s an enormous opportunity for what is probably the collection of the smartest, most talented and most publicly minded lawyers in the country to roll up their sleeves and help advance the cause of constitutional government,” said Leonard Leo, the group’s executive vice president. Leo met with Trump in New York on Wednesday and said afterward that Trump has yet to pare down his long list of names of Supreme Court hopefuls. Among those candidates are nine who will take part in panel discussions in the next few days: state Supreme Court Justices Allison Eid of Colorado, Joan Larsen of Michigan, David Stras of Minnesota and Don Willett of Texas, and federal appellate judges Steven Colloton, Thomas Hardiman, Raymond Kethledge, William Pryor and Diane Sykes. The group says 90 percent of its money comes from individuals and foundations, the rest from corporations. Charles and David Koch, Google and Microsoft are among donors who gave $100,000 or more, according to the society’s annual report for 2015. Trump campaign manager Kellyanne Conway and her husband, George, gave between $50,000 and $100,000. George Conway is a New York lawyer and Federalist Society member. When Scalia and Thomas were criticized for speaking at private dinners hosted by Charles Koch, the court said that travel and lodging expenses were paid not by Koch but by the Federalist Society. The close ties between the group and federal judges have frustrated Democratic officials and liberal interest groups. During the Bush years, Democratic Sen. Dick Durbin of Illinois complained that membership in the Federalist Society was “the secret handshake” of Bush court nominees. Nan Aron, the president of Alliance for Justice, said the Federalist Society “promotes a way of looking at the law which upholds the rights of the powerful and the wealthy.” Aron said it is “regrettable that so many nominees on Trump’s list are going to attend Federalist Society events.” Yet a conservative legal scholar who has been critical of Trump said the group’s involvement in identifying candidates for judgeships and other jobs in the new administration is not something to fear. “In fact, if the Federalist Society does play a role in identifying the president-elect’s nominees, that could be comforting to some who have reservations about Donald Trump’s administration, because such a role would suggest, at least in this area, continuity with longstanding, mainstream Republican practice,” University of Notre Dame law professor Richard Garnett said in an email. Republished with permission of the Associated Press.
Supreme Court strikes down Texas abortion clinic regulations
The Supreme Court struck down Texas’ widely replicated regulation of abortion clinics Monday in the court’s biggest abortion case in nearly a quarter century. The justices voted 5-3 in favor of Texas clinics that had argued the regulations were only a veiled attempt to make it harder for women to get abortions in the nation’s second-most populous state. Justice Stephen Breyer‘s majority opinion for the court held that the regulations are medically unnecessary and unconstitutionally limit a woman’s right to an abortion. Texas had argued that its 2013 law and subsequent regulations were needed to protect women’s health. The rules required doctors who perform abortions to have admitting privileges at nearby hospitals and forced clinics to meet hospital-like standards for outpatient surgery. Breyer wrote that “the surgical-center requirement, like the admitting privileges requirement, provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions and constitutes an ‘undue burden’ on their constitutional right to do so.” Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Breyer. Ginsburg wrote a short opinion noting that laws like Texas’ “that do little or nothing for health, but rather strew impediments to abortion, cannot survive judicial inspection” under the court’s earlier abortion-rights decisions. She pointed specifically to Roe v. Wade in 1973 and Planned Parenthood v. Casey in 1992. Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas dissented. Thomas wrote that the decision “exemplifies the court’s troubling tendency ‘to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.’” Thomas was quoting an earlier abortion dissent from Justice Antonin Scalia, who died in February. Scalia has not yet been replaced, so only eight justices voted. Alito, reading a summary of his dissent in court, said the clinics should have lost on technical, procedural grounds. Alito said the court was adopting a rule of, “If at first you don’t succeed, sue, sue again.” Abortion providers said the rules would have cut the number of abortion clinics in Texas by three-fourths if they had been allowed to take full effect. When then-Gov. Rick Perry signed the law in 2013, there were about 40 clinics throughout the state. That number dropped to under 20 and would have been cut in half again if the law had taken full effect, the clinics said. Texas Attorney General Ken Paxton said the law “was an effort to improve minimum safety standards and ensure capable care for Texas women. It’s exceedingly unfortunate that the court has taken the ability to protect women’s health out of the hands of Texas citizens and their duly elected representatives.” Nancy Northup, president of the Center for Reproductive Rights, which represented the clinics, said, “The Supreme Court sent a loud and clear message that politicians cannot use deceptive means to shut down abortion clinics.” Democratic presidential candidate Hillary Clinton called the decision “a victory for women in Texas and across America.” Texas is among 10 states with similar admitting-privileges requirements, according to the Center for Reproductive Rights. The requirement is in effect in most of Texas, Missouri, North Dakota and Tennessee. It is on hold in Alabama, Kansas, Louisiana, Mississippi, Oklahoma and Wisconsin. The hospital-like outpatient surgery standards are in place in Michigan, Missouri, Pennsylvania and Virginia, and it is blocked in Tennessee and Texas, according to the center. Texas passed a broad bill imposing several abortion restrictions in 2013. Texas clinics sued immediately to block it, contending it impermissibly interfered with a woman’s constitutional right to an abortion. The clinics won several favorable rulings in a federal district court in Texas. But each time, the New Orleans-based 5th U.S. Circuit Court of Appeals sided with the state, at first allowing challenged provisions to take effect and then upholding the law with only slight exceptions. The Supreme Court had allowed the admitting-privileges requirement to take effect in most of the state, but put the surgical center provision on hold pending the court’s resolution of the case. The justices split largely along liberal-conservative lines in their emergency orders, with the court’s conservative justices voting repeatedly to let the law be enforced. Separate lawsuits are pending over admitting-privileges laws in Louisiana and Mississippi, the other states covered by the 5th circuit. The laws are on hold in both states, and a panel of federal appellate judges has concluded the Mississippi law probably is unconstitutional because it would force the only abortion clinic in the state to close. A separate appeal is pending at the Supreme Court from Wisconsin, where federal judges have struck down that state’s admitting-privileges law. Republished with permission of The Associated Press.
