The National Defense of Hamburgers

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Donald Trump likes to eat hamburgers while watching Fox news. When the nation’s meat packing plants started to shut down to avoid further spread of the novel coronavirus, he sprang into action. The President invoked the Defense Production Act (DPA) to keep the hamburgers coming. The DPA empowers the President to prioritize contracts that “he deems necessary or appropriate to promote the national defense.” The President can control the distribution of goods in civilian markets only after finding that (1) the material is “scarce” and “essential to the national defense” and (2) satisfying the defense needs for the material would “create appreciable hardship” for civilians. Trump minced words by stating merely that “meat and poultry in the food supply chain meet the criteria specified in” the DPA.

When the Secretary of Agriculture implements Trump’s Hamburger Order, he will (or at least would be well advised to) publish notice of his proposed policy, solicit and consider public input, and explain his decision fully so that it may survive judicial review. Those requirements are codified in the Administrative Procedure Act (APA) and have become part of the fabric of our government. We expect federal administrative agencies to comply with these fundamental precepts of thoughtfulness and fair play.

In contrast, the “Hamberder” President can act unilaterally and without consideration because the Supreme Court held in Franklin v. Massachusetts that the President isn’t an “agency” under the APA. Following Franklin, the President doesn’t have to comply with the APA even when acting solely under authority delegated from Congress in statutes, just like the Secretary of Agriculture. Thanks to Franklin, the President can take all sorts of actions that have enormous impacts on the nation—close the borders to immigrants, redirect billions of dollars to build a wall on our southern border, and keep the hamburger supply chain intact—without the notice, deliberation, explanation, or judicial oversight we usually demand from the federal government.

Franklin was wrong. The APA plainly includes the President in the definition of “agency,” but the Court declined to implement the text because it thought that doing so raised separation-of-powers concerns. The case involved the decennial census, so the litigation schedule was compressed; the Court had only two months to mull the issues. Had the Court taken the time this issue deserved, it might have realized that NOT subjecting the President to the APA is deeply problematic.

In the New Deal era, Congress created new administrative approaches to solving the nation’s problems. Eventually, the Supreme Court accepted congressional delegations of policymaking authority to Executive Branch agencies, but only on the conditions that the statutes provide procedural safeguards and the courts retain an oversight role. That inter-branch quid pro quo is embodied in the APA of 1946. The APA requires agency policymaking to proceed along a defined procedural course ending with the possibility of judicial review. Presidential exercises of policymaking power without those policymaking constraints undermine the APA’s fundamental bargain, raising significant separation-of-powers concerns.

The APA’s procedural requirements also reflect values that have become entrenched in U.S. law: public participation, political accountability, transparency, deliberation, and judicial review. To retain our commitment to those values, the President should be treated like any other officer when exercising congressionally delegated authority. Before making a pronouncement that is binding on the public, the President should publish notice of the proposed policy and accept and consider public comments, then publish the final policy with an explanation and face judicial oversight.

Since the Supreme Court decided Franklin in 1992, Presidents of both political parties have assumed increasing power. That power must be constrained.

One might object that subjecting the President to the APA would impose too much of a burden on the office. Nonsense. Interpreted correctly, the APA imposes only modest procedural requirements. The President’s minions would take care of the procedure, leaving the President with the reasonable obligations to deliberate and explain the final decision. Moreover, the APA provides plenty of wiggle room for any federal officer to act quickly when necessary. For example, in an emergency as dire as the potential interruption of the hamburger supply, the President could dispense with publishing notice of his proposed policy if he determines that doing so would be “impracticable, unnecessary, or contrary to the public interest.”

The time has come to rein in the President. When acting solely pursuant to statutory authority, the President should satisfy the same constraints as any other congressional delegate. Before deciding that hamburgers are essential for the national defense, closing the nation’s borders, or diverting billions of dollars to build a “wall” on the U.S.-Mexico border the President should be legally required to think.

 

Trump's New Immigration Ban Is Potentially More Dangerous, and More Legally Vulnerable, Than You Might Think

When faced with criticism for his responses to the coronavirus pandemic, President Trump has reacted almost reflexively by touting his administration’s immigration restrictions as the centerpiece of its efforts. But long before the pandemic, Trump had amassed a considerable record of manufacturing “bogus emergencies” to pursue longer-term immigration policy goals. His latest immigration order might be his most brazenly disingenuous, using a pretextual response to a genuine crisis to hack away at basic features of the immigration system that Congress established decades ago, and to impose his own policy preferences in their place by executive decree.

Last week, after officials scrambled to finalize the details, Trump signed a sweeping proclamation making good on his pledge on Twitter two days earlier to “temporarily suspend immigration into the United States” because of the pandemic. The order bans most noncitizens from entering the United States to become permanent residents—initially for sixty days, but potentially for longer.

In its stated rationale, its potential consequences, and its probable longevity, the new directive is different in kind from Trump’s other immigration-related measures during the outbreak. Those differences make it particularly dangerous—but also make it vulnerable to legal challenges.

Trump’s decree strikes at the heart of the immigration system

Trump’s new order does not, to be sure, ban every last noncitizen from entering the United States. However, it does aggressively and in large numbers target individuals at the core of the immigration system: those individuals legally eligible to become permanent residents. Many fewer people are admitted to the United States as permanent residents than on temporary, nonimmigrant visas for tourists, students, business visitors, temporary workers, and many others.

But despite being fewer in number, permanent residents are not a sideshow in the immigration system, as much of the reporting on Trump’s new order has implied when downplaying the reach of the decree. To the contrary, they are at the very heart of the immigration system, the individuals welcomed and integrated into American society most expansively under the immigration laws. Once admitted, they acquire many of the rights, benefits, and obligations held by U.S. citizens, including the ability to live and work in the United States indefinitely. Eventually, they may seek to become citizens themselves.

Trump’s decree imposes no new restrictions on temporary visas, reportedly due to pushback from the business community. Nor does it ban individuals already within the United States from becoming permanent residents—likely because the provision invoked as its legal basis only authorizes suspension of “entry” into the United States. (That said, officials nevertheless do appear to be creating other bureaucratic roadblocks to inhibit those individuals from becoming permanent residents, yet another brick in the “invisible wall” that the Trump presidency has quietly been erecting in the shadows of the immigration system.)

However, the order bans most individuals outside the United States from becoming permanent residents. These immigrants constitute almost half of all individuals granted permanent resident status and disproportionately come from Asia, Latin America, Africa, and Eastern Europe. In 2019, roughly 315,000 individuals were admitted as permanent residents in categories now banned by Trump’s decree. The directive strikes especially hard against individuals eligible to immigrate based on family ties, who comprise over 80 percent of permanent residents admitted from abroad. In 2019, roughly 140,000 parents of U.S. citizens became permanent residents. Nearly half would have been banned under Trump’s order. Individuals eligible for other family-sponsored visa categories are even more severely affected, with upwards of 90 percent now banned from immigrating.

The order also has a highly disproportionate effect on individuals eligible for permanent resident status under the diversity visa program, a program that Trump hates and about which he routinely lies. Under the diversity visa program, Congress has made 50,000 permanent resident visas available each year to qualifying individuals from countries from which there would otherwise be low immigrant admissions. Since almost all diversity-based immigrants are admitted from outside the United States, Trump’s order effectively suspends the diversity visa program in its entirety.

While the order includes some exemptions—for spouses and children of U.S. citizens, business investors, health care professionals, and others—they likely cover less than a third of individuals legally eligible to become permanent residents from abroad. Nor is it clear how those exemptions will be implemented. The proclamation also signals that its restrictions may be extended beyond sixty days, and eventually expanded to cover temporary visas.

The immigration ban’s rationale is not health-based—which makes it likely Trump will try to extend the ban beyond the public health crisis

From a public health perspective, it may be tempting to regard Trump’s emphasis on immigration as nothing more than a distraction, a deflection of attention from deeper failures in the Trump presidency’s responses to the crisis. The immediate effects of Trump’s directive may be limited, since in the short term, there likely will be very little immigration to restrict. Visa processing already has been mostly suspended during the pandemic, and migration and travel have been greatly curtailed.

However, Trump and his immigration restrictionist allies are candid about their longer-term designs. Indeed, the arguments that the Trump presidency makes to justify its immigration ban are not tied to the immediate crisis in any meaningful way. His other recent immigration directives in response to the pandemic have been justified exclusively as measures to contain and mitigate transmission of the coronavirus. Experts have disputed the effectiveness and legality of those orders, but as the pandemic is brought under greater global control, then the strength of justifications for broad restrictions on migration and travel will evolve and, in fits and starts, may subside over time.

By contrast, the rationale for Trump’s new order is more open-ended, malleable, and disingenuous. The order posits that because aggressive public health measures have reduced labor demand and increased unemployment, immigration restrictions are necessary to protect U.S. workers from competition for scarce jobs. But when will those claimed labor market effects—which, it must be emphasized, are sharply disputed by many experts—have sufficiently subsided for Trump to lift those restrictions? And based on what criteria?

For Trump, no changes in economic circumstances would likely ever be enough. For years, he and other immigration restrictionists have advanced exactly the same arguments about labor market competition—during non-crisis moments, with unemployment at record lows—to justify proposals to slash immigration levels and rewrite eligibility criteria for permanent residence. The pretextual rationale invoked in support of the new restrictions is a xenophobic evergreen, not a genuine response to the pandemic.

Trump’s order seeks to impose by executive decree the immigration policy preferences he has failed to persuade Congress to establish by legislation

The immigration system established by Congress fifty years ago, under the landmark Immigration Act of 1965, balances a variety of different priorities—including labor market concerns, but also family reunification, the needs of employers, the desire to encourage immigration from a variety of countries, humanitarian protection, and fundamental rights. However, Trump’s new directive upends that congressionally established balance and seeks to impose a different, more restrictive set of priorities by executive decree.

For some employment-based visa categories, the law already requires employers to obtain government certification verifying that hiring immigrants will not have negative labor market effects. However, instead of respecting that congressionally-mandated process, Trump’s order instead concludes that labor certification is categorically insufficient, essentially writing that process out of the statute altogether. For other visa categories—including some employment-based immigrants, all family-sponsored immigrants, and the diversity visa program—Trump’s decree requires consideration of labor market concerns where Congress has expressly chosen to let other policy priorities take precedence. For example, while the law does not require labor certification for immigrants deemed to have “extraordinary ability,” Trump’s order nevertheless bans those immigrants based on the same supposed labor market concerns that Congress has decided are not concerns at all.

The order’s effects on family-sponsored immigration perhaps most vividly illustrate the ways in which the order directly conflicts with congressional priorities. Family reunification policies are the “bedrock” of immigration law, permitting citizens and permanent residents to sponsor spouses, children, parents, adult sons and daughters, and siblings as immigrants. Trump and other restrictionists have long disagreed with these provisions, assailing Congress’s existing priorities for facilitating what they disparage as “chain migration” and proposing legislation to curtail and limit family-based immigration to “nuclear” family members.

While Trump’s order does exempt some family members, that exemption is narrowly drawn to include only the spouses and children of U.S. citizens—the same preference for “nuclear” family members that restrictionists have failed to achieve through legislation. The proclamation makes no attempt to justify its selective family-based exemption based on labor market concerns or any other considerations. Indeed, the proclamation makes no specific findings about the supposed labor market effects of any particular category of permanent resident visas at all.

Ultimately, the Trump presidency’s latest immigration ban reads pretty clearly as an attempt to impose its restrictionist vision for the legal immigration system—lower overall numbers, different categories of immigrants—by executive decree, rather than through legislation. In fact, when one considers the order’s restrictions together with its exemptions, the overall immigration patterns that it would create closely resemble the contours of Trump-backed legislative proposals, such as the RAISE Act, that Congress has decisively rejected. Trump may believe that the president has “total authority,” but he most certainly does not have authority to supersede and rewrite the immigration laws that Congress has enacted just because he dislikes them.

Trump’s latest immigration ban will face strong legal challenges

The Trump presidency’s lawyers undoubtedly believe that its new directive will be validated when it is inevitably challenged in the federal courts, which Trump and Senate Republican Leader Mitch McConnell have been rapidly filling with reliably conservative loyalists. The Supreme Court’s decision in Trump v. Hawaii, which gave a green light to the Trump presidency’s third executive decree banning immigration from several predominantly Muslim countries, provides them with an additional basis for that confidence. In that case, Chief Justice John Roberts rested his opinion validating Trump’s Muslim exclusion order on a remarkably broad interpretation of the same provision that is also invoked as legal authority for Trump’s new order, concluding that the provision “exudes deference to the President in every clause.”

However, there are substantial reasons to conclude that Trump’s new order exceeds his legal authority. Roberts’s opinion in Trump v. Hawaii itself suggests that even under his expansive interpretation of the statute, the president does not have authority to “countermand Congress’s considered policy judgments” or to “override particular provisions” of the immigration laws. By ordering his own contested claims about the labor market effects of immigration to categorically supersede all of the other immigration policy priorities that Congress has enacted into law, Trump appears to have done precisely that.

In the years since Trump v. Hawaii was decided, Trump and his administration have been emboldened to invoke that same statutory provision to impose even more immigration restrictions, including a ban on individuals applying for asylum and a sweeping requirement that immigrants prove that they can obtain adequate health insurance coverage within thirty days. But despite the Supreme Court’s decision, lower federal courts have continued to respond to these directives with some skepticism.

While courts might be reluctant to second-guess executive actions during a genuine public health crisis, Trump’s immigration ban will undoubtedly appear to some judges more as an opportunistic effort to capitalize on that crisis than as a genuine crisis response. Administration officials themselves have not exactly tried to conceal the true reasons for their directive, openly telling reporters that Trump decided to issue the order to “pleas[e] his political base” and because polls “show[] him sliding in some swing states.” The two officials spearheading Trump’s immigration agenda, Stephen Miller and Ken Cuccinelli, have been even more direct in communicating the administration’s true intentions, candidly telling Trump surrogates last Thursday that the order should be understood as designed to pursue longer-term immigration policy goals, not as a temporary crisis response.

In that context, the Supreme Court might very well prefer not to become enmeshed with and tied to the election-year politics of Trump’s immigration agenda at all. As with Trump’s Muslim exclusion orders, it may find itself unable or unwilling to avoid doing so.

 

The Narrowness of the Supreme Court’s Decision in NYSRPA

New York State Rifle & Pistol Association Inc. v. City of New York, the first Second Amendment case to receive a Supreme Court hearing in a decade, was supposed to be the Second Amendment decision of this generation.

In the briefing in that case (of which I participated as amicus on behalf of neither party) all the hopes and fears of ten years of waiting appear on full display. What methodological tools should courts use to decide a Second Amendment case? Should they use the two-part framework adopted by all the circuits, with historical/categorical reasoning in step one, and tailoring through strict or intermediate scrutiny in step two? Or should they abandon this framework as illegitimate “balancing” and apply something perhaps more originalist: a test focused solely on the text, history and tradition of the Second Amendment? Is the Second Amendment confined to the home – as some readings of District of Columbia v. Heller would suggest – or does the right extend to bearing firearms for personal protection outside of the home as well?

But the shoulders of NYSRPA were always too narrow to support the weight placed on them. First, the regulation was a strange outlier. New York City prohibited persons from transporting firearms locked and unloaded from a home in the city to most other places, including to another home in New York, or to firing ranges or pistol competitions outside city limits. It was the only regulation of its kind in the nation. Further, the major undecided issue after Heller – whether and to what extent a person can carry arms outside the home for self-defense – was governed by a different New York regulation, not at issue in NYSRPA.

Then came the procedural problems. While the case was pending in the Supreme Court, the city repealed the regulation. And for good measure, the State of New York preempted it. So any ruling on the merits would be on a regulation that no longer existed. Notwithstanding, the Court refused to dismiss the case as moot prior to oral argument. But the questions at oral argument signaled where the Court – and especially Chief Justice John Roberts’s – concerns lay, and they weren’t with the merits. Three quarters of oral argument focused on whether the Court should even decide the case; only one quarter addressed the substance.

So when the per curiam decision in NYSRPA came down Monday, holding the suit to be moot on appeal, few were surprised. Justice Brett Kavanaugh concurred in the mootness ruling but signaled (quite rightly) that there were several more vehicles for a Second Amendment case waiting in the cert pool. Justice Samuel Alito wrote an impassioned dissent, joined by Justice Neil Gorsuch, and Justice Clarence Thomas (in part). Alito disputed the majority’s reasoning on mootness, castigated the city and state for their actions, and took a swipe at five Democratic senators’ amicus brief for warning the Court away from ruling on the merits.

Given all the fireworks on mootness, you’d think the merits portion of Alito’s dissent would have been equally feisty. After all, gun rights advocates had leveraged then-Judge Kavanaugh’s opinion in the D.C. Circuit case District of Columbia v. Heller (Heller II) to push a text, history, and tradition-only approach to gun litigation, and Kavanaugh’s opinion in Heller II was a dissent. To be honest, I fully expected the NYSRPA dissent to be equally combative and to serve as grist for hundreds of legal briefs by movement conservatives and judicial opinions by Federalist Society-endorsed judges. Instead, the merits portion was strangely muted.

First, Alito’s dissent doesn’t reject tiers of scrutiny as part of the conventional two-step process. In fact, it uses some form of it as an alternative justification to hold New York City’s regulation unconstitutional. (Justice Thomas notably did not join this portion of the decision.) Second, and more significantly, the great prize of NYSRPA for gun rights advocates – a broad statement on the constitutionality of public carry – is nowhere to be found in the dissent.

As Justice Alito wrote:

We deal here with [a]  . . . core Second Amendment right, the right to keep a handgun in the home for self-defense. As the Second Circuit “assume[d],” a necessary concomitant of this right is the right to take a gun outside the home for certain purposes.

* * *

It is true that a lawful gun owner can sometimes practice at a range using a gun that is owned by and rented at the range. But the same model gun that the person owns may not be available at a range, and in any event each individual gun may have its own characteristics. . . . . Once it is recognized that the right at issue is a concomitant of the same right recognized in Heller, it became incumbent on the City to justify the restrictions its rule imposes, but the City has not done so. (Second alteration in original.)

At best, what the dissent does here is articulate a theory of incidental rights appurtenant to keeping arms, including some kind of transport. The NYSRPA dissent treats this litigation as a right to keep case, not a right to bear case.

In doing so, Justice Alito’s dissent echoed the initial position of one of the earliest academic champions of gun rights in America, the late Don Kates, who wrote in the Michigan Law Review:

Largely as a result of gun-owner organizations’ own legislative proposals, the laws of every state but Vermont prohibit at least the carrying of a concealed handgun off one’s own premises. A common proposal, already the law in many jurisdictions, is to prohibit even the open carrying of handguns (or all firearms), with limited exceptions for target shooting and the like, without a permit. . . . .

The constitutionality of such legislation under the [Second] amendment can be established on the same basis as the unconstitutionality of a ban on possession. (Emphasis and second alteration added.)

Kates wrote those words in 1983 (and slightly modified them shortly thereafter). Since that time things have changed dramatically. Today, every state in the United States permits some type of public carry. Some states allow individuals to carry firearms with no license and no training whatsoever.

The Court has distributed several Second Amendment cases for this Friday’s conference. Very soon, the Court may decide the extent to which the Second Amendment protects a right to bear arms unrelated to a right to keep them. That in forty years the debate has gone from rights incidental to keeping, to rights to nationwide public carry, shows just how far the gun rights movement has broadened its ambitions, and how successfully it has moved the center of the conversation.

The Constitution, COVID-19, and Growing Healthcare Disparities in U.S. Territories

COVID-19 has illuminated many unseemly cracks in the U.S. healthcare system. It’s shocking to hear some of the country’s premiere hospitals described as “war zones” and to see medical professionals begging for protective gear on Twitter. The challenge is even greater for the nearly four million Americans living in U.S. territories, whose invisibility and seeming expendability is reflected both on maps of the crisis that erase them from the United States and through federal healthcare policies that deny the equal value of their lives. This discrimination is clearly wrong. Whether it is constitutional will likely soon be decided by the Supreme Court, following the First Circuit’s historic ruling that denying federal assistance to aged, blind, and disabled people in Puerto Rico is unconstitutional.

Healthcare Funding Inequality Leaves Americans in Territories Behind

Disparities in federal Medicaid policy leave citizens in U.S. territories without the funding that ensures a basic level of healthcare sustainability to most American communities. Throughout the country, Medicaid enables providers to care for low-income Americans and to invest in equipment, infrastructure, and health-worker salaries. Congress allocates Medicaid funds to states based on residents’ per capita income. But it has historically allocated funds to U.S. territories at rates associated with the wealthiest states, like California, rather than the higher rates associated with states with similarly low per capita incomes. Congress also caps territories’ funds at an arbitrary dollar amount that falls well below actual need. Although Congress increased Medicaid funding to all territories in response to Hurricanes Irma and Maria, this funding bump expires in  2021—setting the stage for a Medicaid cliff that has life or death consequences.

The federal government’s unpredictable and discriminatory policy leaves territorial healthcare systems in a permanent state of uncertainty and inadequacy. In the U.S. Virgin Islands (USVI), for example, doctors and specialists that the islands need are unable to set up practices because they cannot count on a steady source of income from patients with Medicaid coverage. And USVI officials, like their counterparts in other territories, have hesitated to expand Medicaid eligibility, lest the federal government reduce funding in the next fiscal cycle.

None of the territories has an Affordable Care Act insurance exchange, and in smaller territories, individual healthcare plans are largely unavailable. This means that a disproportionate number of Americans in U.S. territories rely on the federal government for their healthcare needs. But the government has refused to provide the same levels of support to these Americans as it does to other vulnerable communities.

Even before the pandemic, the healthcare situation in the territories was bleak. Over the past three years, the USVI, Puerto Rico, Guam, and the Northern Mariana Islands have suffered devastating infrastructure damage from record-breaking hurricanes and typhoons fueled by climate change. In the wake of the storms, all of these territories report insufficient healthcare resources, including a shortage of doctors and nurses, difficulty providing services to low-income residents, and inadequate hospital space.

The hospital in St. Croix, USVI, has one working operating room to service a community of more than 50,000. USVI residents who can afford it purchase air ambulance insurance, enabling them to be transported off the islands for emergency procedures, while hospitals grapple with the cost of providing uncompensated care to those who can’t afford to pay. The need for mental health services is so critical that the USVI’s governor declared a state of emergency in the territory. And despite its aging population, the territory’s two publicly run nursing homes have long waiting lists for a vanishingly small number of beds.

It gets worse.

The federal government also prohibits residents of all but one territory—the Northern Mariana Islands—from receiving federal Supplemental Security Income (SSI). SSI is a lifeline for millions of Americans, providing a basic level of income to adults and children who have limited resources and are sixty-five and over, blind, or living with disabilities. Yet if you are a citizen living in California who receives SSI and you move to Guam, you’ll lose your SSI. (You also lose your right to vote for President, but that’s another story.)

Inequality in Territories Represents Failed Colonial Experiment

The experience of the USVI and other territories is not a bug: this systemic discrimination results directly from more than a century of America’s failed colonial experiment.

Following the Spanish-American War in 1898, the United States obtained Puerto Rico, Guam, and other overseas territories whose inhabitants it had no intention of treating equally to Americans on the mainland. These turn-of-the-century territorial acquisitions instigated contentious legal debates about the constitutional status of both the territories and territorial residents—who were (and are) overwhelmingly racial and ethnic minorities.

In a series of cases that first reached the Court in 1901 and have come to be known as the Insular Cases, the Supreme Court constitutionalized the acquisition and temporary congressional governance of  so-called “unincorporated” territories, where the rights and protections of the U.S. Constitution would not necessarily “follow the flag.” For residents of unincorporated territories, the Court questioned, or deemed inapplicable, many rights that most Americans take for granted: citizenship, the right to vote, and the right to a trial by jury.

Explicit racism undergirds the territorial incorporation doctrine. The Court that decided the Insular Cases also decided Plessy v. Ferguson, which constitutionalized the “separate but equal” doctrine in the mainland United States. Justice Henry Billings Brown, who authored Plessy, wrote in one of the Insular Cases that the “alien races, differing from us in religion, customs, laws, methods of taxation and modes of thought” who inhabited the territories made “the administration of government and justice, according to Anglo-Saxon principles . . . impossible.”

Despite their controversial history and subsequent Supreme Court decisions questioning their continuing application, the Insular Cases and their twisted doctrine of territorial incorporation remain on the books. As a result, the federal government continues to argue in court that the rights to birthright citizenship,  an independent territorial judiciary, and even a democratic territorial government are all “privileges” that exist by the grace of Congress. In its view, the Insular Cases, alongside the plenary power doctrine, empower Congress to retract the grant of these rights at any time.

Constitutional Challenge to Inequality Will Soon Reach Supreme Court

Efforts to challenge the unconstitutional and undemocratic status quo in the territories may soon reach the Supreme Court.

In 2016, the federal government sued José Luis Vaello-Madero to recover $28,000 in SSI benefits it had inadvertently paid him after he moved from New York to Puerto Rico. Vaello-Madero, who was only entitled to receive SSI in the first place because he had little to no income, was unable to pay. Instead, he argued that SSI discrimination against territorial residents violated the Constitution’s Equal Protection Clause. Last year, Chief Judge Gustavo Gelpí of the District of Puerto Rico agreed, writing that “United States citizens residing in Puerto Rico are deprived of receiving SSI benefits based solely on the fact that they live in a United States territory. Classifying a group of the Nation’s poor and medically neediest United States citizens as ‘second tier’ simply because they reside in Puerto Rico is by no means rational.”

Earlier this month, a unanimous First Circuit panel led by Judge Juan Torruella affirmed Vaello-Madero, observing that “the Fifth Amendment does not permit the arbitrary treatment of individuals who would otherwise qualify for SSI but for their residency in Puerto Rico.” This ruling should be dispositive to claims raised in Peña Martinez v. Azar, another ongoing case in the District of Puerto Rico that raises affirmative equal protection challenges to both Medicaid and SSI discrimination against residents of Puerto Rico. The First Circuit decision could also prove influential in Schaller v. U.S. Social Security Administration, a similar SSI discrimination suit brought by a resident of Guam in the Ninth Circuit. One or more of these cases will almost certainly be taken up by the Supreme Court in the coming months.

How the Court reacts to these healthcare discrimination cases may be foreshadowed by its forthcoming decision in Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC, a case that raises significant constitutional questions, concerns billions of dollars, and, perhaps most importantly, addresses Puerto Rico’s ability to govern itself democratically. In briefing before the Supreme Court, parties on both sides argued that the Court should take the opportunity to overrule the Insular Cases. But when pressed at oral argument, Chief Justice Roberts and Justice Breyer expressed reluctance to act. Until the Court overrules the Insular Cases, however, residents of U.S. territories cannot achieve meaningful equality.

Judicial and Congressional Action Needed Now

The federal reaction to COVID-19 and the government’s broader approach to healthcare in U.S. territories epitomize the Insular Cases’ suggestion that “separate and unequal” is all Americans in the territories  deserve.

The CARES Act—the stimulus bill recently passed by Congress—guarantees less funding for territories (and the District of Columbia) relative to states and provides a lump sum to be distributed among all U.S. territories according to their populations. Residents of U.S. territories had little say in this outcome: although territories elect delegates to Congress, territorial delegates lack voting power. Thus, the prospects for bipartisan legislation introduced this month that would create Medicaid parity for the territories remain uncertain, at best. Disenfranchisement in Congress is problematic at all times, but doubly so in the midst of a health crisis.

Too few Americans are aware of the legal status of the territories, the racist origins of that status, and America’s ongoing failed colonial experiment, which enables these disparate impacts to endure. As COVID-19 overwhelms the nation’s healthcare systems, it is imperative that the courts and Congress take action to ensure healthcare equity for every American, whether they call a state or territory home.

 

The Supreme Court Rejects a Narrow Reading of the Clean Water Act in County of Maui v. Hawaii Wildlife Fund

On April 23rd, the Supreme Court handed environmentalists a victory in County of Maui v. Hawaii Wildlife Fund, holding that the Clean Water Act (CWA) regulates discharges of pollution into groundwater that emerge in surface water if “functionally equivalent” to direct surface water discharges. Justice Breyer wrote the six to three majority opinion, joined by the Chief Justice, Justice Kavanaugh and the liberal wing of the court.

The case arose from a dispute over a wastewater treatment plant in Maui that pumps millions of gallons of treated sewage into the ground, which then emerge in the Pacific Ocean a half mile away damaging a coral reef. Environmental groups sued arguing that the plant violated a CWA provision requiring a permit for “any addition” of “any pollutant” “from any point source” to jurisdictional waters, which are described in the statute as “waters of the United States.” The County, supported by the United States as amicus curiae, argued that the CWA does not apply to groundwater discharges.

While the current Supreme Court can fairly be characterized as inhospitable to environmental plaintiffs, the result is not entirely a surprise. In his plurality opinion in Rapanos v. United States, Justice Scalia rejected a narrow interpretation of the CWA as only covering direct discharges into jurisdictional waters. As Justice Kavanaugh’s concurrence identifies, in so doing, “Justice Scalia. . . explained why Maui’s interpretation . . . is incorrect.”

The decision is, nonetheless, a big win for the efficacy of the CWA. While the Court articulated a test that is narrower than the one relied upon by the lower court, functional equivalence would appear to provide the EPA with significant latitude to regulate groundwater discharges that are causing serious harm to surface waters.

More importantly, however, is what the Court didn’t do. Had the Court narrowed the CWA to direct discharges into jurisdictional waters the result would have been profound and disastrous.  Consider my home state of Arizona. Most of our waterways flow only during the rainy season. Under the Trump Administration’s new “waters of the United States rule,” those are not jurisdictional waterways. Put aside the legal challenges that are bound to come, even under the Trump rule the EPA can regulate discharges into non-jurisdictional waters if pollutants eventually flow downstream and enter jurisdictional waters. Put differently, the Court could have restricted the scope of the CWA in a manner far more extreme than even the current EPA has proposed.

As Professor Lisa Heinzerling explains over at SCOTUSblog, the decision is also a victory for those of us who believe that statutes should be read in light of their purposes, rather than based on a myopic focus on grammar and a recitation of the dictionary definitions of statutory terms. Justice Breyer’s opinion is steeped in the basic purposes of the Act—to protect America’s waterways—and the Chief Justice and Justice Kavanaugh sign on in full.

The case also provides another example of the folly of deregulating at break-neck speed. For many years, the EPA had interpreted the CWA to regulate groundwater discharges so long as they had a direct hydrologic connection to surface water. That interpretation proved manageable and effective, and I suspect the Court would have deferred to it.

During the litigation, the EPA announced a new, radically different, interpretation that all groundwater discharges are categorically beyond the reach of the CWA. The Court rightly declined to defer to that newly minted and untenable interpretation. But since the EPA’s older, long-standing view is no more, there is no obvious doctrinal mechanism for the Court to resuscitate it, rather than articulate a test of the justices’ own devise.

The extent to which the EPA’s old hydrologic-connection test and the Court’s new functional-equivalence test diverge remains to be seen. What we do know, however, is that the lower courts, the EPA, and regulated parties will have to sort that out in the years ahead. In other words, rather than relieving industry of regulatory obligations, the Trump Administration has simply created uncertainty that will imposes costs on all concerned.

The mode of analysis of much of the majority and dissenting opinions also demonstrates to my eye the reasons that agencies, rather than judges, are better equipped to interpret technical statutes. The justices engage in a spirited battle over grammar based on flights of linguistic fancy that have nothing to do with the way that water systems work.

For example, the majority offers:

"When John comes to the hotel, John might have come from the train station, from Baltimore, from Europe, from any two of those three places, or from all three. A sign that asks all persons who arrive from Baltimore to speak to the desk clerk includes those who took a taxi from the train station. There is nothing unnatural about such a construction."

Justice Alito rejoins:

"The traveler who flies from Europe to Baltimore—illustrates the problem. If we apply the Court’s interpretation of §1362 to this traveler’s journey, he would be “from” Europe for the first part of the flight, but at some point he might cease to be “from” Europe and would then be from someplace else, maybe Greenland or geographical coordinates in the middle of the Atlantic. This is a very strange notion . . . ."

Separately, the majority turns to the culinary realm to understand what the word “addition” might mean, offering that “A recipe might instruct to ‘add the drippings from the meat to the gravy’; that instruction does not become incomprehensible, or even peculiar, simply because the drippings will have first collected in a pan or on a cutting board.” Justice Thomas rejoins “if the drippings from the meat collect in the pan before the chef adds them to the gravy, the drippings are added to the gravy from the pan, not from the meat.”

This deep dive into linguistics makes for good reading. But is this really the best way to interpret the CWA? Wouldn’t it make more sense to interpret the text based on the realities of hydrology—the technical field providing the backdrop for the Act’s operation? And isn’t the EPA best suited to that task? Of course, the EPA has fallen down on the job. Still, this is an opinion that has me yearning for scientific expertise, rather than clever prose.

Finally, I think it’s worth returning for a moment to the short Kavanaugh concurrence because it takes such great pains to invoke Justice Scalia. During his career, Justice Scalia handed environmentalists a number of surprising and significant victories when he believed textualism demanded it. Perhaps a commitment to textualism will, at least sometimes, overcome ideology for Justice Kavanaugh too.

Justin Pidot is a Professor of Law and the Co-Director of the Environmental Law Program at the University of Arizona James E. Rogers College of Law

The First Amendment and the Protests Over COVID-19 Shutdowns

Photo credit: City Pulse/Kyle Kaminski

Governors across the country are facing protests by those who want executive orders closing non-essential businesses and ordering people to stay at home on account of the COVID-19 pandemic lifted. Would enforcing these restrictions run afoul of the First Amendment?

Assuming that the restrictions apply across the board and are directed neither at expressive activity generally, nor at the communication of any particular messages -- as seems clearly to be the case, then the First Amendment argument is a difficult one. These are restrictions that have only an incidental effect on speech and on these particular protesters. As a general rule, laws having only an incidental effect on speech -- meaning that they are directed neither at expressive conduct nor at any particular message -- come with a very strong presumption of constitutionality.

As a general rule, courts do not want to get into the business of figuring out when laws having only an incidental effect on speech violate the First Amendment. For example, in United States v. O'Brien (1968), the Supreme Court held that a law prohibiting anyone knowingly to destroy a draft card was not unconstitutional as applied to someone who burned a draft card for expressive purposes because the law had only an "incidental" effect on speech. Similarly, if someone is arrested for speeding and claims the conviction violates the First Amendment because he was speeding to protest speed limits, he would lose because the anti-speeding law was not directed at speech.

There are a few Supreme Court decisions, though, where the Court has held laws unconstitutional even though they had only an incidental effect on speech. In NAACP v. Alabama (1958), for example, the Court invalidated an Alabama law, similar to laws in many other states, that required all out-of-state organizations (including businesses) that operate in the state to disclose the names of all Alabama residents who are members of the organization. The Court held the law unconstitutional as applied to the NAACP, even though the law had only an incidental effect on First Amendment rights, because disclosure of one's affiliation with the NAACP in Alabama at that time would have led to a serious chilling effect on the willingness of Alabama residents to affiliate with the NAACP. And in Boy Scouts v. Dale (2000), the Court invalidated a law prohibiting discrimination on the basis of sexual orientation as applied to the Boy Scouts because the law had an incidental effect on the First Amendment rights of the Boy Scouts effectively to express its hostility to gays.

Thus, although First Amendment doctrine is very reluctant to invalidate laws having only an incidental effect on speech, the Court has made exceptions in a few cases where the incidental effect seriously interfered with the First Amendment right to express one's views and where the incidental effect was especially significant on certain points of view.  Assuming that's a reasonable understanding of the existing First Amendment doctrine, how does it apply to the current situation?

Frankly, it all depends on three primary considerations: First, how substantial is the state's interest in incidentally restricting the expressive activity at issue. Second, are there alternative ways in which individuals can make their views known without violating the incidental restriction. Third, are there ways in which the state can reasonably accommodate the speakers while still serving its goals.

These aren't open-and-shut questions. With respect to the first one, it's clear that in the current extraordinary situation the state has an extremely important justification for prohibiting significant gatherings of people. With respect to the second factor, there are certainly alternative ways the protesters can make their views known without having public protests that significantly undermine the state's extremely important interest in preventing the spread of the pandemic. Social media, for example, is a powerful means of communication that could serve the protesters’ expressive interests without creating a serious risk of illness. With respect to the third factor, the state can probably find ways to accommodate the protests on public property by insisting that the participants keep their distance from one another. That's clearly challenging, but it might be a reasonable solution if the protest takes place, for example, in a large public park or perhaps in a large stadium. If I were a lawyer for the protesters, I would try to work out a deal along those lines. Whether that’s realistic depends on whether it’s . . . realistic.