All Things SCOTUS

[drayer54]

These heartbeat bills are clearly unconstitutional but will give the right court a chance to perhaps narrow the Roe scope or take a shot at it.

I don't think Roberts is willing to go too far. We have to wait for Justice Barrett to get a real blow to Roe. I'm not sure this is the hill the GOP should decide they're willing to die on. I'm wondering if this is the play to hold small town America.

 

[Legacy]

These heartbeat bills are clearly unconstitutional but will give the right court a chance to perhaps narrow the Roe scope or take a shot at it.

I don't think Roberts is willing to go too far. We have to wait for Justice Barrett to get a real blow to Roe. I'm not sure this is the hill the GOP should decide they're willing to die on. I'm wondering if this is the play to hold small town America.

With a recent SCOTUS partial reversal of Indiana's abortion law, the people of Indiana can now pay for a burial or cremation of an aborted fetal remains for those low-income mothers who cannot afford the costs. I imagine that forcing a hospital or surgical center to assume the cost would be a tax arguably an illegal one. Certainly any John Doe who died in a hospital when unclaimed is buried by the state and Indiana limits abortions after the first trimester to a hospital or surgical center. Nationally, 75% of mothers who get abortions are low income with a preponderance of minorities and single mothers to be. Pro-life advocates should want health insurance coverage with access to physicians during pregnancy to control risks to the baby, provide adequate nutrition and for maternal health. Without those, maternal and fetal mortality increases. Indiana has the third worst maternal mortality rate in the nation and almost double the national average. So, Medicaid, Medicaid expansion loosing the requirements for single mothers, and CHIP (Childrens Health Insurance Program) and SNAP (Supplemental Nutritional Assistance Program) or Food Stamps as well as increasing adoption financial support I imagine would be on the agenda of any pro-life changes. For a state that does provide those types of safety net programs and then limit or ban to abortions, that's worth discussion.

What is a good idea are referendums determined by each state's voters. Arizona, when it last had a referendum to ban abortion (1992) turned it down 68% NOs. Current demographics indicate that 67% of Arizonans are Christian (Protestant, Catholic, smaller denominations). Referendums generally pit urban v rural voters in a state like Georgia and that democratic process may well not be reflective of recent legislation. That's worth considering when someone talks about a civil war over the issue. Perhaps an inner-state "war" is the first step.

 

[Legacy]

Neil Gorsuch and Stephen Breyer Butt Heads Over Judicial Deference to Federal Agencies
Understanding what's at stake in the important case of Kisor v. Wilkie

What is the proper role of a federal judge when it comes to reviewing the actions of a federal regulatory agency? Should the judge defer to the ostensible expertise of that agency and its staff, and therefore generally respect the agency's preferred interpretation of its own regulations? Or should the judge play a more active role, stepping in to prevent the agency from defining the scope of its own regulatory authority?

These are not academic questions. They are at the heart of a major case currently pending before the U.S. Supreme Court.

Waiving Chevron Deference

In a challenge to an agency action, what happens when the agency does not claim Chevron deference? Perhaps the agency has failed to realize that the statute is ambiguous. Or perhaps the agency fears political blowback from its policy choice and strategically takes the position that the statute unambiguously compelled its policy. Irrespective of the reason, what result? The Supreme Court has never squarely addressed the question. But the circuit courts have almost uniformly suggested that the answer is waiver. That is, when an agency fails to invoke Chevron deference during litigation, the reviewing court will assume that Chevron does not apply.

This Note argues that such a regime is contrary to both law and sensible policy.

This question has substantial stakes. Consider, for example, the Trump Administration’s ongoing effort to replace the Obama-era Clean Power Plan.

Because the Obama Administration promulgated the Clean Power Plan via notice-and-comment rulemaking, the process to replace it involves several important procedural and substantive hurdles under the Administrative Procedure Act

Most importantly, a replacement plan must also be promulgated via notice-and-comment rulemaking, which will likely take years.

The Trump EPA’s volte-face will also be reviewed for arbitrariness, which poses a problem under modern administrative law because the original plan was grounded in “a very elaborate set of findings in the record.”

The roots and limits of Gorsuch’s views on Chevron deference (Scotusblog)

Not too long before he was nominated to fill Justice Antonin Scalia’s seat on the Supreme Court, Judge Neil Gorsuch published two opinions – in the same case – staking out some genuinely heterodox positions on administrative law. In the now-relatively well-known case of Gutierrez-Brizuela v. Lynch, Gorsuch wrote both the majority decision for the U.S. Court of Appeals for the 10th Circuit and his own concurrence, using the latter as an opportunity to argue against what is known in the law as “Chevron deference.”

The court’s holding in the 1984 case Chevron U.S.A. v. Natural Resources Defense Council directs courts to defer to reasonable agency interpretations of ambiguous statutes; it is a foundational case in terms of the existing structure of American government, because it grants policymaking flexibility to the agencies that line Constitution and Independence Avenues, and reduces the relative role of courts (and the congressional statutes they are interpreting) in providing fixed stars for our core federal regulatory regimes. In a way, Chevron deference is responsible for making the views of the current head of the Environmental Protection Agency far more important than the content of the Clean Air Act in terms of setting national anti-pollution policy. Gorsuch’s opinion in Gutierrez-Brizuela points out that this result essentially inverts the conventional view of the separation of powers, under which Congress sets national policy through statutes, the courts interpret those statutes to “say what the law is,” and the executive branch carries the law into execution, rather than revising it from one administration to the next according to its policy whims. So we have the odd situation that Gorsuch is viewed as a revolutionary thinker – as taking up arms against a rule at the heart of modern administrative law – by advocating for an understanding of American government we all (should have) learned in high-school civics.

 

[Rogue219]

Gerrymandering stays.

Perfect transition to the Fourth of July BBQ I'm planning.

 

[Legacy]

When the courts become political, the legislature becomes weak, and the executive branch is mighty.... this is what happens.

I had meant to get back to this topic on the Administrative State after posting the recent decision in Kisor v. Wilkie on the Auer Deference. The Court's prior decisions in Auer and Chevron have contributed to increased powers to the executive.

John Roberts Throws the Administrative State a Lifeline
He mostly saved a doctrine that shields executive agencies from judicial review. (National Review)

While there are many cultural and political causes for the growth of the federal administrative leviathan, it could not have become so powerful without considerable assistance from the Supreme Court. The Court has created, often out of whole cloth, judicial doctrines that magnify the problem: Congress is allowed to pass laws delegating its legislative authority to the executive branch; the executive branch, in turn, is given great leeway to interpret those laws as it sees fit; similar leeway applies even when the executive branch interprets its own regulations.

The result is an interlocking system that grants the executive the powers of all three branches of government. It writes the laws, it interprets the laws, and it executes the law. One of the great projects of America’s originalist, classical-liberal judicial revolution has been to overturn this monstrously unconstitutional construct, and today was supposed to represent the first clear victory in the project — overturning the so-called Auer doctrine, the judge-made rule that requires courts to defer to agency interpretations of their own regulations.

Based on Auer, the courts must defer to any agency interpretation of ambiguous agency rules, no matter the nature of the ambiguity or the means or timing for a later interpretation.

The Chevron deference requires federal courts to defer to reasonable agency decisions implementing an agency’s statutory mandate when the particular statutory instruction from Congress that is being implemented is ambiguous.

Deference to Agency Rule Interpretations: Problems of Expanding Constitutionally Questionable Authority in the Administrative State
(The Federalist Society)

Together with the better-known Chevron deference rule, the doctrine articulated in Auer v. Robbins[1] two decades ago—which makes reasonable administrative constructions of ambiguous administrative rules binding on courts in most circumstances—has become a focal point for concerns about the expanding administrative state. For good reason. Auer deference, even more than Chevron deference, enlarges administrative authority in ways at odds with basic constitutional structures and due process requirements.

As with the recent decisions on Kisor, on gerrymandering, on the census question on ciitzenship, and others, Roberts was the deciding vote.

 

[Legacy]

Explaining Texas v. U.S.: A Guide to the 5th Circuit Appeal in the Case Challenging the ACA

On July 9, 2019, the U.S. Court of Appeals for the 5th Circuit will hear oral argument in Texas v. U.S., the next round of litigation challenging the Affordable Care Act (ACA). The appeals court is reviewing a federal trial court’s decision that the ACA’s minimum essential coverage provision (known as the individual mandate) is unconstitutional and, as a result, requires the entire ACA to be overturned. The individual mandate provides that most people must maintain a minimum level of health insurance coverage; those who do not do so must pay a financial penalty (known as the shared responsibility payment) to the IRS. The individual mandate was upheld as a constitutional exercise of Congress’ taxing power by a five member majority of the U.S. Supreme Court in NFIB v. Sebelius in 2012.

In the 2017 Tax Cuts and Jobs Act (TCJA), Congress set the shared responsibility payment at zero dollars as of January 1, 2019. According to the Texas trial court, this action “compels the conclusion” that the individual mandate ceases to be a constitutional exercise of Congress’ taxing power because the associated financial penalty no longer “produces at least some revenue” for the federal government.1 The trial court went on to find that, because Congress called the individual mandate “essential” when enacting the ACA in 2010, the entire law must be invalidated. The trial court’s decision has not yet been implemented. However, if the decision does take effect, it will have complex and far-reaching consequences for the nation’s health care system, affecting nearly everyone in some way. A host of ACA provisions would be eliminated, ncluding: protections for people with pre-existing conditions, subsidies to make individual health insurance more affordable, expanded eligibility for Medicaid, coverage of young adults up to age 26 under their parents’ insurance policies, coverage of preventive care with no patient cost-sharing, closing of the doughnut hole under Medicare’s drug benefit, and a series of tax increases to fund the new benefits.

This issue brief answers key questions about the case leading up to the oral argument on appeal.

 

[drayer54]

Explaining Texas v. U.S.: A Guide to the 5th Circuit Appeal in the Case Challenging the ACA

This has a chance. Health care is a commodity and is not immune to scarcity. Mandating it, while convenient to try and lower premiums, is genuinely unamerican. I'm not so sure about it requiring a complete flip of the entire ACA though. I'm skeptical that Roberts allows that.

 

[BGIF]

Retired Justice John Stevens has died. He was 90. He retired in 2010 and was replaced by Justice Kagan.

 

[Irish YJ]

Senate Dems deliver stunning warning to Supreme Court: ‘Heal’ or face restructuring
https://www.foxnews.com/politics/se...g-to-supreme-court-heal-or-face-restructuring

If you don't like the way they rule, just threaten to change the rules and restructure.....

The dems are F'ing shameful cry babies.

I'd love to see the Supreme Court issue a statement "Hello Congress, try passing good and moderate law for a change, instead of making us deal with all of your petty crap"

 

[BGIF]

Senate Dems deliver stunning warning to Supreme Court: ‘Heal’ or face restructuring
https://www.foxnews.com/politics/se...g-to-supreme-court-heal-or-face-restructuring

If you don't like the way they rule, just threaten to change the rules and restructure.....

The dems are F'ing shameful cry babies.

I'd love to see the Supreme Court issue a statement "Hello Congress, try passing good and moderate law for a change, instead of making us deal with all of your petty crap"

King Franklin Lives!

 

[BGIF]

https://www.reuters.com/article/us-usa-court-ginsburg/u-s-justice-ginsburg-treated-for-pancreatic-cancer-idUSKCN1VD278


AUGUST 23, 2019 / 1:45 PM / UPDATED 14 MINUTES AGO
U.S. Justice Ginsburg treated for pancreatic cancer
Lawrence Hurley Reuters


WASHINGTON (Reuters) - Liberal U.S. Supreme Court Justice Ruth Bader Ginsburg has completed a three-week course of radiation therapy to treat a cancerous tumor on her pancreas, a court spokeswoman said on Friday.

The 86-year old justice tolerated the therapy well and no further treatment is required, spokeswoman Kathy Arberg said in a statement.

An abnormality was first detected in July, and the tumor was identified following a biopsy performed on July 31 at Memorial Sloan Kettering Cancer Center in New York.

“She canceled her annual summer visit to Santa Fe, but has otherwise maintained an active schedule,” Arberg said.

“The tumor was treated definitively and there is no evidence of disease elsewhere in the body,” the spokeswoman added.

Ginsburg, who joined the court in 1993, had two cancerous nodules in her left lung removed in December.

She missed oral arguments in January for the first time in her lengthy career on the court, fueling speculation about her ability to continue in the job. As the oldest justice, she is closely watched for any signs of deteriorating health.

Ginsburg, appointed in 1993 by Democratic President Bill Clinton, broke three ribs in a fall in November. The nodules on her lung were found as part of the tests the justice underwent after that fall.

Ginsburg was previously treated for pancreatic cancer in 2009 and colon cancer in 1999.

If Ginsburg, one of the nine-member court’s four liberal justices, were unable to continue serving, Republican President Donald Trump could replace her with a conservative, further shifting the court to the right. Trump has added two justices since becoming president in January 2017, cementing its 5-4 conservative majority.

 

[ulukinatme]

You gotta give her this, she's persistent...like herpes.

In all seriousness, fuck cancer.

 

[Irish YJ]

You gotta give her this, she's persistent...like herpes.

In all seriousness, fuck cancer.

Tough old bird, I have to say...
Whatever treatment she's getting, it's sure in the hell isn't Obamacare....
Pancreatic Cancer x2, lung, and intestinal..... if only everyone had the same care...

 

[no.1IrishFan]

The Obama admin should have asked her to step down and replaced her with someone younger. They were banking on her making it to like 92 if there is a two term republican. They should have done a better job securing that seat. That’s assuming McConnel even allowed a vote.

 

[Sea Turtle]

Tough old bird, I have to say...
Whatever treatment she's getting, it's sure in the hell isn't Obamacare....
Pancreatic Cancer x2, lung, and intestinal..... if only everyone had the same care...

Yep. Patrick Swayze gets it and it's like 'nothing we can do'. She gets it multiple times as well as lung cancer and it's a couple weeks of treatment and it's full steam ahead. It's a death sentence for everyone not on the supreme court it seems.

 

[BGIF]

Tough old bird, I have to say...
Whatever treatment she's getting, it's sure in the hell isn't Obamacare....
Pancreatic Cancer x2, lung, and intestinal..... if only everyone had the same care...

Nor V.A.

 

[Irish YJ]

Yep. Patrick Swayze gets it and it's like 'nothing we can do'. She gets it multiple times as well as lung cancer and it's a couple weeks of treatment and it's full steam ahead. It's a death sentence for everyone not on the supreme court it seems.

Mom's neighbor got it, and it was pretty early stages. He was gone in 6ish months, and that was with good private insurance IIRC.

It's got to be her workout regimen.

 

[Irish YJ]

Nor V.A.

My father had private insurance, but always wanted to go to the VA. IMO, it's the reason he died.... It was a shit show. It took me 2+ years to get his medical records after he passed.

 

[NorthDakota]

The Obama admin should have asked her to step down and replaced her with someone younger. They were banking on her making it to like 92 if there is a two term republican. They should have done a better job securing that seat. That’s assuming McConnel even allowed a vote.

I believe she was under substantial pressure to retire and declined. I dont know what you mean by "they" were banking on anything. Federal judges, especially SCOTUS judges, are untouchable.

 

[BGIF]

The Obama admin should have asked her to step down and replaced her with someone younger. They were banking on her making it to like 92 if there is a two term republican. They should have done a better job securing that seat. That’s assuming McConnel even allowed a vote.

They were banking on her making it.

Only her majesty basking in her manifest destiny chose the bling, Beyonce, Springsteen, et al, concerts for her home stretch run instead of heeding the call of Blue Wall Democratic State Chairs beseeching her to come to their states to press the flesh in black churches, in union halls, and on college campuses. The things Democratic candidates have traditionally done.

Clinton's campaign was the worst run since G.H.W. Bush went from being the most popular president 6 months before the election to unemployed.

I believe she was under substantial pressure to retire and declined. I dont know what you mean by "they" were banking on anything. Federal judges, especially SCOTUS judges, are untouchable.

FDR didn't think so. Neither did J. Edgar Hoover.

 

[Irish#1]

Hate to see anyone with cancer. Even through they didn't see anything else, with a history of Pancreatic Cancer x2, lung, and intestinal cancer, it will be back. It's just a matter of time.

 

[BGIF]

Desperate Coup Attempt Stumbles ... AGAIN!

Desperate Coup Attempt Stumbles ... AGAIN!

https://www.irishenvy.com/forums/showpost.php?p=2122601&postcount=20020

 

[Irish#1]

These people trying to get the Dem nomination are making fools of themselves. Don't do any fact checking, just be the first to reply so you can tell everyone you were on top of this right from the beginning.

 

[Irish YJ]

Ruth Bader Ginsburg hospitalized for chills and fever, Supreme Court says
https://www.foxnews.com/politics/ruth-bader-ginsburg-hospitalized-chills-fever

 

[BGIF]

DECEMBER 1, 2019 / 6:08 AM / UPDATED 14 HOURS AGO
U.S. Supreme Court weighs challenge to New York gun transport limits
Andrew Chung

NEW YORK (Reuters) - The U.S. Supreme Court will hear its first major gun rights case in nearly a decade on Monday in a challenge backed by the National Rifle Association over a now-amended New York City handgun regulation that had prevented licensed owners from taking their handguns outside the city.

The nine justices will hear arguments in an appeal by three handgun owners and the New York state affiliate of the NRA - the gun rights group closely aligned with President Donald Trump and other Republicans - who say the regulation violates the U.S. Constitution’s Second Amendment right to keep and bear arms.

Gun control advocates have said that if the justices choose to issue a broad ruling expanding gun rights, it could jeopardize a variety of firearms restrictions passed in recent years by state and local governments across the country, including expanded background checks and confiscations of weapons from individuals who a court has deemed dangerous.

Gun control is a contentious issue in the United States, which has experienced numerous mass shootings. Since 2013, 45 states and the District of Columbia have adopted more than 300 gun control laws, according to the Giffords Law Center to Prevent Gun Violence. Republican opposition in Congress has been instrumental in thwarting passage of new federal laws.

“The future of life-saving gun safety laws across our country is very directly on the line with this case,” the center’s litigation director Hannah Shearer said.

The court has a 5-4 conservative majority. Its ruling is due by the end of June.

“I believe it will change the way the Second Amendment is applied to everyone who owns a gun in the country,” said Staten Island resident Romolo Colantone, one of the plaintiffs.

The dispute centers on New York’s handgun “premises” licenses that allowed holders to transport their firearm only to a handful of shooting ranges within the city, and to hunting areas elsewhere in the state during designated hunting seasons.

The transport rule was amended in July to specifically allow for a gun to be taken to a range or other residence outside the city. The city unsuccessfully asked the Supreme Court to cancel the arguments and drop the case because the amendment removed the provision being challenged.

The New York State Rifle and Pistol Association filed the lawsuit in 2013 along with three city residents who were told by authorities they could not participate in a shooting competition in New Jersey or bring their guns to a home elsewhere in the state.

The plaintiffs are appealing a 2018 ruling by the Manhattan-based 2nd U.S. Circuit Court of Appeals that the regulation did not violate the Second Amendment and advanced the city’s interest in protecting public safety.

The Supreme Court has avoided taking up a major firearms case since 2010, when it extended to state and local regulations a 2008 ruling that recognized for the first time that the Second Amendment protects a person’s right to keep a gun at home for self-defense.

That has left open questions such as whether that right extends outside the home. The challengers also are asking the Supreme Court to require lower courts to more strictly review gun curbs, with an eye toward striking them down.

 

[Irish#1]

Seems like a silly law to begin with. How would NY monitor this in the first place? Was this law aimed more at dealers?

 

[NorthDakota]

Seems like a silly law to begin with. How would NY monitor this in the first place? Was this law aimed more at dealers?

I saw tweets that made it look like pretty much every justice was getting in on dunking on them.

 

[wizards8507]

Fingers crossed that high capacity magazines are next.

 

[Irish YJ]

Not Supreme, but really "supreme"..

The Nutty Ninth is one nut less nuttier. Just an all around fantastic job with the appointee management.

Trump secures 50th appellate court appointment, with another 9th Circuit judge confirmed
https://www.foxnews.com/politics/tw...firmed-over-objections-of-california-senators

 

[Irish#1]

Not Supreme, but really "supreme"..

The Nutty Ninth is one nut less nuttier. Just an all around fantastic job with the appointee management.

Trump secures 50th appellate court appointment, with another 9th Circuit judge confirmed
https://www.foxnews.com/politics/tw...firmed-over-objections-of-california-senators

Dems opposing a gay judge? I guess they aren't ask "woke" as they thought.