Issues of health [and its insurance] seem pretty paradigmatically Trumpy. After all, Donald Trump's first presidency ended amidst a haze of charges and counter-charges about the Covid epidemic and his handling thereof. His second presidency began after a team-up with the craziest member of the Kennedy clan, who was elevated to the post of Secretary of Health. Also, there is the generally accepted fact that Trump's three nominees to the Supreme Court were generally chosen because they would advance the cause of reversing ROE v. WADE. And of course, they accomplished that mission.
Church-state disputes, classic "establishment clause" matters of the sort that once would have been handled under the three-part Lemon test, are also Trumpy, because this is an administration of a more-or-less avowed Christian nationalism.
Finally, the issue of due process within the ambit of deportation proceedings is the Trumpiest legal question imaginable. So in this post we will speak of each of those three points.
Health and health insurance
.
A. Medicine
I wrote up the case of Kennedy v. Braidwood extensively here in May, after a report that supplemental briefs on the subject had just arrived at the high court. This treatment will be less detailed.
This was the latest in a line of cases challenging the Affordable Care Act of 2010 (Obamacare) It is worth remembering that the repeal of Obamacare was one of the great failed causes of the first Trump term.
Specifically, though, this case involved the ACA's creation of the Preventive Services Task Force, a body that passes on which preventive medical services must be covered by compliant insurance plans.
Braidwood, a small Christian owned business in Texas, doesn't want to be required to pay so its employees can be protected from HIV infection. Braidwood says that the coverage mandates raise an issue under the appointments clause, Art. II, section 1, clause 2. This clause distinguishes between "officers of the United States" on the one hand and "inferior officers" on the other. Officers of the United States must be appointed by the President with the advice and consent of the Senate. Inferior officers act under the supervision of those Senate-approved full-fledged officers.
They said that the law blurs this distinction by creating officers who do not need Senate confirmation yet are not accountable to Senate-confirmed superiors, either.
This is characteristic of the sorts of arguments made these days by self-declared enemies of the "deep state". They prefer the superficial state of elected appointees and revile depth. It is good to see that this Supreme Court's patience for that sort of argument has reached a limit.
B. RICO and medical marijuana
The legalization of marijuana usage in a number of states in recent years is not a good excuse for lying. This, on one simple but accurate view, is the message of Medical Marijuana v. Horn, decided by a 5-4 vote in early April. Seeking relief from his accident-related chronic pain, Douglas Horn bought and used “Dixie X,” which its marketers descried as THC-free, mere pain-relieving CBD. A few
weeks later, however, Horn’s employer selected him for random drug
screening, and Horn tested positive for THC. After he refused to participate in a substance abuse program, his employer fired him. Horn
then sued Medical Marijuana under the Racketeer Influenced and Corrupt Organizations Act (RICO), which creates a cause of action for
“[a]ny person injured in his business or property” by reason of a criminal RICO violation. 18 U. S. C. §1964(c).
Lesson: THC can still cost people their jobs. There is no "strength in numbers" there --it is just the one smuck versus the employer of the one smuck. Also, anyone who markets the product, even if states where it is lawful, should have this fact in mind and should be accurate in the characterization of what does and does not entail such a risk.
In terms of the make-up of the court, the 5-justice majority that reached this decision included each of the three Democratic Party's presidents' appointees. It also included two Trump employees: Gorsuch and Barrett.
The other four Justices, Kavanaugh plus the three Bush family appointees, were swayed by a general distrust of RICO and a desire to narrow the range in which any business can be prosecuted under its umbrella.
C. Planned Parenthood
Finally, there is Medina v. Planned Parenthood. Conservatives, having achieved their long-sought goal of repealing ROE, have over the last three years pursued various follow-ups, with mixed results. There is the issue of going after the use of the pills, for example (and using a national wide injunction by a district court to do so -- something that is only a bad idea when it cuts the wrong way, I gather). This session nothing more was heard about mifepristone. But another front in the war is going after Planned Parenthood, as a historical institution that has long been nearly synonymous with the cause of reproductive choice.
And, there, the pro-life crowd has been all too successful. Medina certifies such successes. There is nothing more that needs to be said of it, so let us move on....
The establishment clause
The first amendment to the constitution reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peacefully to assemble, and to petition the government for a redress of grievances."
Without argument, I will take "Congress" to refer to the federal government generally, since the executive is simply supposed to execute the will of ... Congress. Furthermore, given some complicated history I will here avoid, "Congress" has come to refer to the state governments and their units as well.
What I especially ask you to note about the language above is how the different things Congress may not do (the different rights of individuals against whose interests it might otherwise act) are divided into several clauses, and those clauses are clumped into groups of two. We have the right to be free of the preachings of an established religion COMMA and from any bar to free exercise of our own. That is one group of two rights. A semicolon -- a stronger separator than a mere comma, separates them from the rest of the sentence. Likewise, speech and press are separated from each other by a mere comma, and separated from the clauses before or after them by a muscular semicolon.
A. The Golden Rule
We have a Christian nationalist crowd in office now. Russell Vought, for example, is a explicitly avowed Christian nationalist and is under Trump the head of the office of management and budget. The clear impression I get from the two conjoined religion clauses is that Christianity stands on the same footing in the United States as Judaism, or Islam, or Confucianism. The government cannot make any of them official, and of any one of them we can say that I can choose, freely, to follow and practice it.
If any applications of these related clauses seem confusing, ask yourself this question, drawn from the sacred works of a number of religions. Do onto others as you would have them do onto you. If you would not want taxpayers to support a "Imam of Tehran Charter School," do not expect taxpayers to support a St Isidore of Seville Charter School.
That noted, we can make fairly quick work of this session's establishment matters. Perhaps the most remarkable of them is Oklahoma School Board v. Drummond, decided on May 22.
The underlying dispute arose because at the outset, a non-profit religiously affiliated corporation, St. Isidore of Seville Virtual Charter
School, Inc., applied
to the Board to establish a state-created public charter
school. Those parties then created a contract creating not just Oklahoma's first but the first ever in the US, an explicitly Catholic public charter school.
Not only did this seem dubious in terms of the establishment clause quoted above it seemed and clearly was also dubious in terms of Oklahoma's own constitution, which promises the people of the state "a system of public schools ... free from sectarian control."
The Supreme Court of the state of Oklahoma, acting on that language, struck down the chartering of the St. Isidore School. The school petitioned for certiorari, that is, for the US high court to take its appeal, on the ground that the state and federal constitutional arguments are intertwined and that a prohibition on the participation of religious chartered schools from a broader school chartering program is a violation of the free exercise clause on the other side of that comma.
SCOTUS took the appeal, heard arguments, and in its own deliberations split down the middle, 4 to 4, with Justice Barrett excusing herself from deliberations. Barrett has a personal friendship with a Notre Dame law professor, Nicole Garnett, who advised the Catholic Archdiocese of Oklahoma City and Diocese of Tulsa in this matter.
So, with Barrett out, the Justices split 4 to 4. That means: no decision, and the decision of the court below stands. That in turn means: no St Isidore of Seville charter school.
One of the fascinating things about this story is: who split? One naturally begins with the assumption that the three "liberals," Sotomayor, Kagan, Jackson all voted together to apply the establishment clause here. To make a 4-4 split, one of the "conservatives" must have joined them. My guess would be Chief Justice Roberts.
But for now at least the taxpayers of Oklahoma are not paying for what would seem to be a quintessential establishment of religion. With a saint's name in the name of it and everything. But this may change if the proponents of such charter schools can produce an example that does NOT have an embarrassingly tight relationship with Justice Barrett.
B. Out on a limb
For an establishment clause case this term that produced unanimity among the Justices we can turn to Wisconsin, the Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission.
This time, the relevant state (Wisconsin) Supreme Court decision denied Catholic Charities Bureau a tax exemption available to religious entities under Wisconsin law on the grounds that they were not “operated primarily for religious purposes” because they neither engaged in proselytization nor limited their charitable services to Catholics. They were, one might say, not sectarian enough to get the tax break. In THIS case, the anti-establishment argument seemed weak and the Justices of the Supreme Court of the United States reversed the decision below.
Justice Sotomayor in a decision for the Court, did not argue that the court below had failed to interpret its state legislators language properly, Rather, she presumed the rightness of that interpretation and said that the statute as so interpreted "imposed a
denominational preference by differentiating between religions based on theological lines." Tellingly, Wisconsin was not able to cite any decisions interpreting any other federal or state laws that required proselytization or exclusively co-religionist service
for charitable organizations to qualify for the exemption.
Wisconsin went way out on a limb and got smacked back toward the jurisprudential trunk.
This case is important in large part because it illustrates the importance of which judges serve on the Wisconsin court. The Wisconsin off-the-reservation ruling was 4-3 in March 2024. Almost exactly a year later the people of the state voted for a regular person to take a MAGA judges' place, a vote that was widely seen as encouraged by Elon Musk's ham-handed efforts in the other direction. Since then, one can be reasonably confident such a ruling would go the other way, 3 to 4.
C. Opting out of (public) school lessons
One of the end-of-term cases. This session the Court said that public schools must allow parents who invoked their religious affiliation (and have children in the public schools) to opt their children out of school lessons involving LGBTQ+ themes. Here the court voted 6 to 3 along the predictable ideological lines -- Kagan, Sotomayor and Jackson dissenting.
It seems to me that the opinion by Alito and with the support of all the Bush and all the Trump nominees is a very bold extension of a line of precedent that goes back to YODER more than fifty years ago.
The case is Mahmoud v. Taylor.
Due process and deportation
Let us say for clarity that the A.A.R.P. in the heading for the important SCOTUS case on deportations does not at all involve the America Association of Retired Persons (AARP) to which your thoughts may now be turning. It is a designation for an otherwise anonymous potential deportee.
The President invoked the Alien Enemies Act (AEA) to remove Venezuelan nationals identified as members of the Tren de Aragua (TdA), a designated foreign terrorist organization. Two detainees, along with a putative class of similarly situated detainees in the Northern District of Texas, sought injunctive relief against their summary removal under the AEA. These two were being held in U.S. detention facilities and were notified of their imminent removal.
The Justices broke down 7 to 2. Everybody except Alito and Thomas agreed that the fifth circuit had been wrong in "dismissing the detainees’ appeal for lack of jurisdiction." They sent the case back to the fifth circuit with various instructions."
One key point, "Appellate courts have jurisdiction to review interlocutory orders that have 'the practical
effect of refusing an injunction.'"
The effect was at least temporarily to prevent removal of certain Venezuelan men under the Alien Enemies Act.
This seemed to be good news, back in April. It appeared for a moment that the Supreme Court, including three Justices nominated by Trump during his first term, were willing to stand up to him and require due process for all "persons," as the constitution requires, however they happen to come within the ken of US law enforcement.
But whatever karma points the Justices acquired that day they lost the following month. On June 23 they decided Department of Homeland Security v. D.V.D. [Initials again, not a reference to digital video disks, like those displayed in the photo above.] In that case, the Justices turned their bellies up in the face of Trump, begging for a belly rub and allowing deportations to third countries, I.e. designated dumping ground countries.
It still breaks my heart, so I'll end this post with a link to a fuller discussion. See you tomorrow: https://www.scotusblog.com/2025/07/court-allows-trump-administration-to-send-group-of-immigrants-to-south-sudan/
Comments
Post a Comment