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It's interesting how the court is increasingly reacting to potential hot button issues by just saying nah, the plaintiffs don't have standing not our problem. Seems to be their preemptive defense as to why court packing is unnecessary. Not like there's any new laws for them to overturn anyway. fake edit: snipe. Using a different tweet on the same story for the new page- https://twitter.com/SCOTUSblog/status/1405527425660817412?s=19
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Jun 17, 2021 15:41
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More on Fulton: https://twitter.com/mjs_dc/status/1405531371548807182?s=21 Alito also wrote an almost 80 page concurrence talking about revisiting Employment Div. v. Smith aware of dog fucked around with this message at 15:47 on Jun 17, 2021 |
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Jun 17, 2021 15:42
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Groovelord Neato posted:Gorsuch joined the dumbest justice in dissent. Surprised it went 7-2. Not the least bit surprised by this ruling. The idea this SCOTUS would rule against corporations on this topic is beyond a pipe dream even though Nestle execs need to be nailed to a wall.
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Jun 17, 2021 16:25
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 Opinions! Catching up to June 10, with June 14 and June 17 to follow.SANCHEZ ET UX. v. MAYORKAS, SECRETARY OF HOMELAND SECURITY, ET AL. TLDR: Entering the US unlawfully means you can’t get lawful permanent resident status, even if you have Temporary Protected Status letting you stay and work in the US while your home country is unsafe. Holding / Majority Opinion (Kagan) Petitioner Jose Santos Sanchez entered this country unlawfully from El Salvador. Years later, because of unsafe living conditions in that country, the Government granted him Temporary Protected Status (TPS), entitling him to stay and work in the United States for as long as those conditions persist. Sanchez now wishes to become a lawful permanent resident (LPR) of the United States. The question here is whether the conferral of TPS enables him to obtain LPR status despite his unlawful entry. We hold that it does not. Section 1255 of the immigration laws provides a way for a “nonimmigrant”—a foreign national lawfully present in this country on a designated, temporary basis—to obtain an “[a]djustment of status” making him an LPR. Under that section, a nonimmigrant’s eligibility for such an adjustment to permanent status depends (with exceptions not relevant here) on an “admission” into this country. And an “admission” is defined as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” … A separate provision of immigration law establishes the TPS program, which provides humanitarian relief to foreign nationals in the United States who come from specified countries. The Government may designate a country for the program when it is beset by especially bad or dangerous conditions, such as arise from natural disasters or armed conflicts. The country’s citizens, if already present in the United States, may then obtain TPS. That status protects them from removal and authorizes them to work here for as long as the TPS designation lasts. A person’s unlawful entry into the United States will usually not preclude granting him TPS. And relevant here, the TPS provision states: “[F]or purposes of adjustment of status under section 1255,” a person given TPS “shall be considered as being in, and maintaining, lawful status as a nonimmigrant.” Jose Santos Sanchez is a citizen of El Salvador who has lived in the United States for more than two decades. He entered this country unlawfully in 1997—without “inspection and authorization by an immigration officer.” Once here, he worked without legal authorization. In 2001, the Government designated El Salvador under the TPS program after a series of devastating earthquakes. Sanchez obtained TPS that year, and has held it ever since. In 2014, he applied under §1255 for an adjustment to LPR status2 The United States Citizenship and Immigration Services denied Sanchez’s LPR application. Under §1255, the agency stated, Sanchez was ineligible for LPR status because he had not been lawfully admitted to the United States. … Section 1255, applied according to its plain terms, prevents Sanchez from becoming an LPR. There is no dispute that Sanchez “entered the United States in the late 1990s unlawfully, without inspection.” But as earlier described, §1255 requires an LPR applicant like Sanchez to have entered the country “lawful[ly],” with “inspection”—that is, to have been admitted.Indeed, §1255 imposes an admission requirement twice over. Its principal provision states that an applicant for LPR status must have been “inspected and admitted or paroled into the United States. And another provision says that a person who has worked without authorization in the country—as Sanchez did for several years—may become an LPR only if his presence in the United States is “pursuant to a lawful admission.”Sanchez has never claimed that he can, without aid from the TPS provision, satisfy those demands for admission. A straightforward application of §1255 thus supports the Government’s decision to deny him LPR status. And nothing in the conferral of TPS changes that result. As noted earlier, a TPS recipient is “considered as being in, and maintaining, lawful status as a nonimmigrant” for the purpose of becoming an LPR. That provision ensures that, in applying for permanent residency, a TPS recipient will be treated as having nonimmigrant status—even if, like Sanchez, he really does not. … Sanchez resists this conclusion by asserting an “indissoluble relationship between admission and nonimmigrant status.” While conceding that some forms of status (e.g., asylum) do not require admission, Sanchez contends that nonimmigrant status always does: “One cannot obtain lawful nonimmigrant status without admission.” Ibid. In support of that claim, Sanchez points to §1184 of the immigration laws, entitled “[a]dmission of nonimmigrants.” And he asserts that it is impossible to “identif[y] any category of individuals who are lawful nonimmigrants but are not admitted—because no such category exists.” … In fact, individuals in two immigration categories have what Sanchez says does not exist: nonimmigrant status without admission. The first category is for “alien crewmen”—foreign nationals who serve on board a vessel or aircraft. They receive nonimmigrant status when their vessel or aircraft “land[s]” in the United States. But still the law provides that they are not “considered to have been admitted.” The second category is for foreign nationals who have been the victim of a serious crime in the United States and can assist with the investigation. Those individuals may receive nonimmigrant status even if they entered the country unlawfully—so even if they were not admitted. … Sanchez objects that if the TPS provision confers only nonimmigrant status for §1255, it accomplishes precious little. Less than he would like, of course: It would not make him, or other TPS recipients who entered the country unlawfully, LPR-eligible. But some TPS recipients will benefit from the TPS provision’s conferral of nonimmigrant status for purposes of §1255….Congress, of course, could have gone further, by deeming TPS recipients to have not only nonimmigrant status but also a lawful admission. Legislation pending in Congress would do just that. ... Section 1255 generally requires a lawful admission before a person can obtain LPR status. Sanchez was not lawfully admitted, and his TPS does not alter that fact. He therefore cannot become a permanent resident of this country. We affirm the judgment below. It is so ordered. Lineup: Kagan, unanimous. https://www.supremecourt.gov/opinions/20pdf/20-315_q713.pdf BORDEN v. UNITED STATES TLDR: A crime that only requires you to be “reckless” in acting cannot be a “violent felony” for purposes of the 15 year add-on sentence of the Armed Career Criminal Act. Holding / Majority Opinion (Kagan) The Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e), mandates a 15-year minimum sentence for persons found guilty of illegally possessing a gun who have three or more prior convictions for a “violent felony.” The question here is whether a criminal offense can count as a “violent felony” if it requires only a mens rea of recklessness—a less culpable mental state than purpose or knowledge. We hold that a reckless offense cannot so qualify. Congress enacted ACCA, as its full name makes clear, to address the “special danger” associated with “armed career criminals.” A “small percentage of repeat offenders,” Congress found, commit a “large percentage” of all violent crimes. And when such a habitual violent offender carries a gun, he poses a serious risk of wreaking harm. As his prior convictions reveal, he is “the kind of person who,” when armed, “might deliberately point the gun and pull the trigger.” To allay that danger, ACCA enhances the sentence of anyone convicted under 18 U. S. C. §922(g) of being a felon in possession of a firearm if he has three or more prior convictions (whether state or federal) for a “violent felony.” The increase in penalty is severe: A 10-year maximum sentence turns into a 15-year minimum one...An offense qualifies as a violent felony under that clause if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” To decide whether an offense satisfies the elements clause, courts use the categorical approach. Under that by-now-familiar method, applicable in several statutory contexts, the facts of a given case are irrelevant. The focus is instead on whether the elements of the statute of conviction meet the federal standard. Here, that means asking whether a state offense necessarily involves the defendant’s “use, attempted use, or threatened use of physical force against the person of another.” If any—even the least culpable—of the acts criminalized do not entail that kind of force, the statute of conviction does not categorically match the federal standard, and so cannot serve as an ACCA predicate. In this case, petitioner Charles Borden, Jr., pleaded guilty to a felon-in-possession charge, and the Government sought an enhanced sentence under ACCA. One of the three convictions alleged as predicates was for reckless aggravated assault in violation of Tennessee law. The relevant statute defines that crime as “[r]ecklessly commit[ting] an assault” and either “caus[ing] serious bodily injury to another” or “us[ing] or display[ing] a deadly weapon.” Borden argued that this offense is not a violent felony under ACCA’s elements clause because a mental state of recklessness suffices for conviction. In his view, only purposeful or knowing conduct satisfies the clause’s demand for the use of force “against the person of another.” ... The circuit courts have indeed differed in addressing the question Borden raises. Some have held, as in this case, that a statute covering reckless conduct qualifies as a violent felony under ACCA. Others have concluded that only a statute confined to purposeful or knowing conduct can count as such a felony. The dispute turns on the definition of “violent felony” in ACCA’s elements clause—more specifically, on how different mental states map onto the clause’s demand that an offense entail the “use . . . of physical force against the person of another.” ... Two pieces of background should ease the way. We begin by setting out four states of mind, as described in modern statutes and cases, that may give rise to criminal liability. Those mental states are, in descending order of culpability: purpose, knowledge, recklessness, and negligence. We then discuss two prior decisions of this Court addressing questions similar to the one here. In each, the Court considered how a certain mental state relates to a statutory definition marking out a category of crimes. One of those definitions is almost identical to the elements clause; the other appropriates only the clause’s first half. The Court’s analyses— about both the statute more like and the statute less like the elements clause—help frame today’s decision. Purpose and knowledge are the most culpable levels in the criminal law’s mental-state “hierarchy.” A person acts purposefully when he “consciously desires” a particular result. He acts knowingly when “he is aware that [a] result is practically certain to follow from his conduct,” whatever his affirmative desire. We have characterized the distinction between the two as “limited,” explaining that it “has not been considered important” for many crimes. Recklessness and negligence are less culpable mental states because they instead involve insufficient concern with a risk of injury. A person acts recklessly, in the most common formulation, when he “consciously disregards a substantial and unjustifiable risk” attached to his conduct, in “gross deviation” from accepted standards. That risk need not come anywhere close to a likelihood. Speeding through a crowded area may count as reckless even though the motorist’s “chances of hitting anyone are far less [than] 50%.” Similarly (though one more step down the mental-state hierarchy), a person acts negligently if he is not but “should be aware” of such a “substantial and unjustifiable risk,” again in “gross deviation” from the norm. There, the fault lies in the person’s simple “failure to perceive” the possible consequence of his behavior. In Leocal v. Ashcroft, 543 U. S. 1 (2004), this Court held that offenses requiring only a negligent mens rea fall outside a statutory definition relevantly identical to ACCA’s elements clause. That definition, codified at 18 U. S. C. §16(a), is for the term “crime of violence,” which appears in many federal criminal and immigration laws. Section 16(a) states, in language that should by now sound familiar, that a “crime of violence” means “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” The question presented was whether that definition covers DUI offenses—for driving under the influence of alcohol and causing serious bodily injury—that require only a negligent mental state. In addressing that issue, the parties had debated whether “the word ‘use’ alone supplies a mens rea element.” But the Court thought the focus on that one word “too narrow.” Rather, we said, the “critical aspect” of §16(a) is its demand that the perpetrator use physical force “against the person or property of another.” As a matter of “ordinary or natural meaning,” we explained, that “key phrase . . . most naturally suggests a higher degree of intent than negligent” conduct. … More recently, the Court held that reckless offenses fall within a different statutory definition—this one lacking the “against another” phrase Leocal deemed “critical.” The law at issue in Voisine v. United States bars persons convicted of a “misdemeanor crime of domestic violence” from possessing firearms. That phrase is defined to mean a misdemeanor, committed by a person in a specified domestic relationship with the victim, that “has, as an element, the use or attempted use of physical force.” In that truncated definition, the only language anyone could “think[] relevant” was the word “use” (the word Leocal, in construing a longer definition, deemed not the right focus). The Court understood “use” as demanding volition—the “active employment” of force. But we thought that lone word “indifferent” to whether an actor choosing to employ force had a mental state of recklessness, knowledge, or purpose. And that reading of “use,” we continued, is the only one consistent with the statute’s history and purpose. Congress enacted §922(g)(9), we explained, to prevent domestic abusers convicted of “garden-variety [misdemeanor] assault” from owning guns—and most such misdemeanors cover reckless conduct. At each step of the analysis, then, our decision was statute-specific. We made clear that other statutory definitions— whether the one in Leocal or the near-identical one in ACCA’s elements clause—might exclude reckless offenses. Today, we reach the question we reserved in both Leocal and Voisine. We must decide whether the elements clause’s definition of “violent felony”—an offense requiring the “use of physical force against the person of another”—includes offenses criminalizing reckless conduct. We hold that it does not. The phrase “against another,” when modifying the “use of force,” demands that the perpetrator direct his action at, or target, another individual. Reckless conduct is not aimed in that prescribed manner. Our reading of the relevant text finds support in its context and purpose. The treatment of reckless offenses as “violent felonies” would impose large sentencing enhancements on individuals (for example, reckless drivers) far afield from the “armed career criminals” ACCA addresses—the kind of offenders who, when armed, could well “use [the] gun deliberately to harm a victim.” And contra the Government (and dissent), Voisine says nothing to the contrary. The parties here dispute the meaning of the phrase “use of physical force against the person of another.” They start in the same place, as they must: The “use of physical force,” as Voisine held, means the “volitional” or “active” employment of force. The fight begins with the word “against.” According to Borden, that word means “in opposition to,” and so “introduces the target of the preceding action.”...The Government responds that “against” instead means “mak[ing] contact with,” and so introduces the mere recipient of force rather than its “intended target.” … Borden’s view of “against,” as introducing the conscious object (not the mere recipient) of the force, is the right one given the rest of the elements clause. Dictionaries offer definitions of “against” consistent with both parties’ view: The word can mean either “[i]n opposition to” or “in contact with,” depending on the context. The critical context here is the language that “against another” modifies—the “use of physical force.” As just explained, “use of force” denotes volitional conduct. And the pairing of volitional action with the word “against” supports that word’s oppositional, or targeted, definition. … On that understanding, the clause covers purposeful and knowing acts, but excludes reckless conduct (as, once again, the Government concedes). Purposeful conduct is obvious. Suppose a person drives his car straight at a reviled neighbor, desiring to hit him. The driver has, in the statute’s words, “use[d] . . . physical force against the person of another.” The same holds true for knowing behavior. Say a getaway driver sees a pedestrian in his path but plows ahead anyway, knowing the car will run him over. That driver, too, fits within the statute: Although he would prefer a clear road, he too drives his car straight at a known victim. Or said otherwise, both drivers (even though for different reasons) have consciously deployed the full force of an automobile at another person. Imagine a commuter who, late to work, decides to run a red light, and hits a pedestrian whom he did not see. The commuter has consciously disregarded a real risk, thus endangering others. And he has ended up making contact with another person, as the Government emphasizes. But as the Government just as readily acknowledges, the reckless driver has not directed force at another: He has not trained his car at the pedestrian understanding he will run him over. To the contrary, his fault is to pay insufficient attention to the potential application of force. Because that is so—because his conduct is not opposed to or directed at another—he does not come within the elements clause. He has not used force “against” another person in the targeted way that clause requires. Leocal confirms our conclusion. Although the Court reserved the question we decide today, its reasoning all but precludes the Government’s answer. Recall that Leocal held that negligent conduct falls outside a statutory definition much like the elements clause—one requiring the use of physical force “against the person or property of another.” In thus excluding crimes with a negligent mens rea, the Court reasoned just as we have today. When read against the words “use of force,” the “against” phrase—the definition’s “critical aspect”—“suggests a higher degree of intent” than (at least) negligence. That view of §16(a)’s “against” phrase—as incorporating a mens rea requirement—contradicts the Government’s (and dissent’s) view here that a materially identical phrase is “not a roundabout way” of . . . incorporating a mens rea requirement. The Government thus asks us to read ACCA’s elements clause—specifically, its “against” phrase, modifying the “use of force”—contrary to how we have read near-identical words before. … The dissent offers up two “alternative”—really, mutually inconsistent—counter-arguments about the elements clause’s text. In the first, the dissent claims to find a “term of art” in the clause—implicitly admitting that the language, as ordinarily understood, excludes reckless conduct. Here, the dissent is all on its own: Neither the Government nor any of the many courts that have looked at this issue has advanced this term-of-art theory. In the second, the dissent goes more conventional, essentially repeating what the Government says, though with a distinctively question-begging quality. The term-of-art claim fails because the dissent’s proposed term does not appear in—and indeed differs in critical ways from—the elements clause’s text. The ordinary-meaning claim fails for reasons already familiar. … Were there any doubt about the elements clause’s meaning, context and purpose would remove it. The elements clause defines a “violent felony,” and that term’s ordinary meaning informs our construction. Leocal well expressed this idea: In interpreting §16(a), “we cannot forget that we ultimately are determining the meaning of the term ‘crime of violence.’” … Congress enacted ACCA, as noted earlier, to address “the special danger created when a particular type of offender—a violent criminal[]—possesses a gun.” In keeping with that concern, ACCA sets out to identify, for sentencing purposes, the eponymous “armed career criminal”—the sort of offender who, when armed, “might deliberately point the gun and pull the trigger.” The Act discharges that goal by looking to a person’s criminal history. An offender who has repeatedly committed “purposeful, violent, and aggressive” crimes, we have explained, poses an uncommon danger of “us[ing a] gun deliberately to harm a victim.” But that is not so—as this Court has recognized—of someone convicted of a crime, like a DUI offense, revealing only a “degree of callousness toward risk.” However blameworthy, the reckless (or negligent) conduct involved in such a crime is “far removed” from the “deliberate kind of behavior associated with violent criminal use of firearms.” So there is no reason, consistent with ACCA’s focus on armed career criminals, for reckless offenses to precipitate the statute’s enhanced sentences. … Offenses with a mens rea of recklessness do not qualify as violent felonies under ACCA. They do not require, as ACCA does, the active employment of force against another person. And they are not the stuff of armed career criminals. The judgment below is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Kagan, joined by Breyer, Sotomayor, and Gorsuch. Concurrence in the judgment by Thomas. Dissent by Kavanaugh, joined by Roberts, Alito, and Barrett. Concurrence in the judgment (Thomas): This case forces us to choose between aggravating a past error and committing a new one. I must choose the former. Although I am “reluctant to magnify the burdens that our [erroneous] jurisprudence imposes,” I conclude that the particular provision at issue here does not encompass petitioner’s conviction for reckless aggravated assault, even though the consequences of today’s judgment are at odds with the larger statutory scheme. The need to make this choice is yet another consequence of the Court’s vagueness-doctrine cases like Johnson v. United States, 576 U. S. 591 (2015). … The question presented here is whether the elements clause encompasses petitioner’s conviction under Tennessee law for reckless aggravated assault. It does not. The plurality focuses on the latter part of the operative language: “against the person of another.” I rest my analysis instead on a separate phrase: “use of physical force.” As I have explained before, a crime that can be committed through mere recklessness does not have as an element the “use of physical force” because that phrase “has a well-understood meaning applying only to intentional acts designed to cause harm.” The elements clause does not encompass petitioner’s conviction because the statute under which he was convicted could be violated through mere recklessness. But although the Court’s conclusion that petitioner’s conviction does not satisfy the elements clause is sound, the implication that he is something other than an “armed career criminal” is not. The state law here prohibits “[r]ecklessly . . . [c]aus[ing] serious bodily injury to another.” That offense would satisfy the residual clause because it “involves conduct that presents a serious potential risk of physical injury to another.” So although the elements clause does not make petitioner an armed career criminal, the residual clause would. The problem is that Johnson held that the residual clause is “unconstitutionally vague” and thus unenforceable. ... There is a straightforward solution to this dilemma— overrule Johnson. … I hesitate to give petitioner the benefit of Johnson, because his crime is a “violent felony” as Congress defined the term. Indeed, in other contexts, I have resisted exacerbating similar errors. Yet I reluctantly conclude that I must accept Johnson in this case because to do otherwise would create further confusion and division about whether state laws prohibiting reckless assault satisfy the elements clause. I therefore concur in the judgment. Dissent (Kavanaugh, joined by Roberts, Alito, and Barrett): In this case, Charles Borden was convicted in 2018 for unlawfully possessing a firearm in violation of §922(g)(1). The District Court concluded that Borden was subject to ACCA because of his three prior convictions in 2002, 2003, and 2007 for aggravated assault under Tennessee law. Borden does not dispute that his 2002 and 2003 Tennessee felony convictions—which were for intentional or knowing aggravated assault—constituted violent felonies for purposes of ACCA. But he challenges the classification of his 2007 Tennessee felony conviction—which was for reckless aggravated assault. Borden argues that reckless felonies do not qualify as predicate offenses under ACCA. According to Borden, a crime committed recklessly, such as reckless assault or reckless homicide, does not entail the “use of physical force against the person of another.” Instead, Borden contends, only intentional or knowing felonies satisfy that statutory definition. Most States criminalize reckless assault and reckless homicide. And the Model Penal Code and most States provide that recklessness as to the consequences of one’s actions generally suffices for criminal liability. Importantly, moreover, Borden does not dispute that ACCA’s phrase “use of physical force” on its own would include reckless offenses, such as reckless assault or reckless homicide. But Borden nonetheless contends that ACCA’s phrase “use of physical force against the person of another” somehow excludes those same reckless offenses, including reckless assault and reckless homicide. To put Borden’s argument in real-world terms, suppose that an individual drives a car 80 miles per hour through a neighborhood, runs over a child, and paralyzes her. He did not intend to run over and injure the child. He did not know to a practical certainty that he would run over and injure the child. But he consciously disregarded a substantial and unjustifiable risk that he would harm another person, and he is later convicted in state court of reckless assault. Or suppose that an individual is in a dispute with someone in the neighborhood and begins firing gunshots at the neighbor’s house to scare him. One shot goes through the window and hits the neighbor, killing him. The shooter may not have intended to kill the neighbor or known to a practical certainty that he would do so. But again, he consciously disregarded a substantial and unjustifiable risk that he would harm someone, and he is later convicted in state court of reckless homicide. Surprisingly, the Court today holds that those kinds of reckless offenses such as reckless assault and reckless homicide do not qualify as ACCA predicates under the use-of-force clause. The plurality does not dispute that those offenses involve the “use of physical force,” but concludes that those offenses do not involve the “use of physical force against the person of another.” The plurality reaches that rather mystifying conclusion even though someone who acts recklessly, as those examples show, has made a “deliberate decision to endanger another,” and even though an individual who commits a reckless assault or a reckless homicide generally inflicts injury or death on another person. The plurality reaches that conclusion even though most States (both as of 1986 and today) criminalize reckless assault and reckless homicide as offenses against the person, and even though Congress enacted ACCA’s useof-force clause in 1986 to cover the prototypical violent crimes, such as assault and homicide, that can be committed with a mens rea of recklessness. And the plurality reaches that conclusion even though the Court concluded just five years ago (when interpreting a similarly worded domestic violence statute) that reckless offenses such as reckless assault and reckless homicide do entail the use of physical force against another person—there, “against a domestic relation” or “victim.” In my view, the Court’s decision disregards bedrock principles and longstanding terminology of criminal law, misconstrues ACCA’s text, and waves away the Court’s own recent precedent. The Court’s decision overrides Congress’s judgment about the danger posed by recidivist violent felons who unlawfully possess firearms and threaten further violence. I respectfully dissent. … First, and most fundamentally, the phrase “against the person of another” in ACCA has zero to do with the required mens rea for predicate violent felonies. That phrase simply incorporates established nomenclature for classifying crimes and reflects a longstanding criminal-law term of art that distinguishes offenses against the person from offenses against property. As the Government explains, that phrase simply “limits the scope” of the use-of-force clause to “crimes involving force applied to another person, thereby excluding many property crimes, like arson.” … To sum up: The plurality does not dispute that reckless offenses entail the “use of physical force.” The plurality argues, however, that reckless offenses do not entail the “use of physical force against the person of another.” But the phrase “against the person of another” reflects longstanding criminal-law nomenclature—a term of art—that specifies the category of covered predicate offenses that involve the use of force, such as assault, homicide, rape, and robbery. That language has zero to do with the mens rea required for predicate offenses under ACCA. That conclusion should end this case given that the plurality acknowledges that the phrase “use of physical force” otherwise encompasses reckless offenses such as reckless assault and reckless homicide. Second, in the alternative, even if we divorce the phrase “against the person of another” from its term-of-art usage in criminal law, as the plurality mistakenly does, that phrase as a matter of ordinary meaning still does not speak to mens rea and cannot reasonably be read to exclude reckless offenses such as reckless assault and reckless homicide. Instead, as the Court recognized in Voisine v. United States in interpreting a “similarly worded” statute covering the “use of physical force,” ACCA’s use-of-force clause is “indifferent as to whether the actor has the mental state of intention, knowledge, or recklessness” with respect to the consequences of using force. … The plurality today simply shrugs off the language from Voisine. But the plurality cannot rewrite ordinary meaning. And as Voisine’s choice of language demonstrates, the ordinary meaning of the phrase “use of physical force against the person of another,” such as against a domestic relation, easily encompasses reckless offenses, including reckless assault and reckless homicide. … To sum up, the plurality’s reading of the statutory phrase “against the person of another” fails for two alternative and independent reasons. First, that phrase is a term of art that limits the category of offenses covered by ACCA’s useof-force clause to those involving force against the person rather than against property. It does not serve as a roundabout way of heightening the mens rea requirement for violent felonies to intent or knowledge. Second, and in the alternative, even if the phrase “against the person of another” is not a term of art, the ordinary meaning of that phrase encompasses reckless offenses such as reckless assault and reckless homicide. … All of that is more than enough to resolve this case. But in addition to all of that, the Court’s recent precedent in Voisine v. United States convincingly demonstrates that ACCA covers reckless offenses such as reckless assault and reckless homicide. As noted above, the Court in Voisine concluded that the phrase “use of physical force” in a similarly worded statutory provision encompasses reckless offenses, as well as intentional or knowing offenses.}Voisine established two key points. First, Voisine confirmed that reckless offenses such as reckless assault and reckless homicide entail the use of physical force against another person—there, against a domestic relation or victim. Second, contrary to the plurality’s analysis today, Voisine explained that the Court’s prior decision in Leocal v. Ashcroft, 543 U. S. 1 (2004), meant simply that negligent offenses do not involve the use of physical force for purposes of statutes such as ACCA. … In sum, the text of ACCA’s use-of-force clause encompasses reckless offenses, such as reckless assault and reckless homicide. Contrary to the plurality’s conclusion today, the phrase “against the person of another” reflects a centuriesold term of art for classifying crimes and has zero to do with mens rea. Even setting aside that longstanding usage, the plurality’s interpretation of the phrase “use of physical force against the person of another” fails as a matter of ordinary meaning and precedent. I respectfully dissent. https://www.supremecourt.gov/opinions/20pdf/19-5410_8nj9.pdf
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Jun 17, 2021 16:36
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ulmont posted:Lineup: Well I don’t know if this lineup is as hosed, but it’s up there. ulmont posted:CHIKE UZUEGBUNAM, ET AL., PETITIONERS v. STANLEY C. PRECZEWSKI, ET AL
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Jun 17, 2021 16:59
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Platystemon posted:Well I don’t know if this lineup is as hosed, but it’s up there. The best part on that one is Thomas saying "this case should come out the other way, but you guys hosed up the prior case (Johnson), and if we don't overrule the other case this is how this one has to come out." Opinions! Catching up to June 14, with June 17 to follow.TERRY v. UNITED STATES TLDR: You only get a retroactive reduced sentence for crack cocaine offenses if you got a mandatory minimum sentence for the crack cocaine. If you got a lower sentence then, you can’t get the reduced sentence now. Holding / Majority Opinion (Thomas) In 1986, Congress established mandatory-minimum penalties for cocaine offenses. If the quantity of cocaine involved in an offense exceeded a minimum threshold, then courts were required to impose a heightened sentence. Congress set the quantity thresholds far lower for crack offenses than for powder offenses. But it has since narrowed the gap by increasing the thresholds for crack offenses more than fivefold. The First Step Act of 2018, Pub. L. 115–391, 132 Stat. 5194, makes those changes retroactive and gives certain crack offenders an opportunity to receive a reduced sentence. The question here is whether crack offenders who did not trigger a mandatory minimum qualify. They do not. … In response to [panic about the crack epidemic], Congress quickly passed a bill with near unanimity. The new law created mandatory-minimum penalties for various drug offenses, and it set much lower trigger thresholds for crack offenses. The Act included two base penalties that depended on drug quantity: a 5-year mandatory minimum (triggered by 5 grams of crack or 500 grams of powder) and a 10-year mandatory minimum (triggered by 50 grams of crack or 5 kilograms of powder). The Act also created a third penalty—possession with intent to distribute an unspecified amount of a schedule I or II drug—that did not treat crack and powder offenses differently, did not depend on drug quantity, and did not include a mandatory minimum. Petitioner was convicted under this Act and subjected to the third penalty. In exchange for the Government dropping two firearm charges, petitioner pleaded guilty in 2008 to possession with intent to distribute an unspecified amount of crack. At sentencing, the District Court determined that his offense involved about 4 grams of crack, a schedule II drug. It also determined that petitioner was a career offender under the Sentencing Guidelines. United States Sentencing Commission, Guidelines Manual §4B1.1(b) (Nov. 2008) (USSG). The career-offender Guidelines controlled because they recommended a higher sentence than the drug-quantity Guidelines. The District Court sentenced petitioner to 188 months, the bottom of the career-offender Guidelines range. All this occurred while Congress was considering whether to change the quantity thresholds for crack penalties. In 1995, the Sentencing Commission issued a report to Congress stating that it thought the 100-to-1 ratio was too high. In particular, it stressed that the then-mandatory Guidelines helped make the ratio excessive because the Guidelines, which were not yet in effect when Congress created the ratio, addressed some of Congress’ concerns about crack. Addressing those concerns through both the ratio and the Guidelines, the Commission said, “doubly punished” offenders. Separately, although the Commission thought that it was reasonable to conclude that “crack cocaine poses greater harms to society than does powder cocaine,” it determined that the ratio overstated the difference in harm. Finally, the Commission noted that persons convicted of crack offenses were disproportionately black, so a ratio that was too high created a “perception of unfairness” even though there was no reason to believe “that racial bias or animus undergirded the initiation of this federal sentencing law.” … In the Fair Sentencing Act of 2010, 124 Stat. 2372, note following 21 U. S. C. 801, Congress reaffirmed its view that the triggering thresholds should be lower for crack offenses, but it reduced the 100- to-1 ratio to about 18 to 1. It did so by increasing the crack quantity thresholds from 5 grams to 28 for the 5-year mandatory minimum and from 50 grams to 280 for the 10-year mandatory minimum. These changes did not apply to those who had been sentenced before 2010. The Sentencing Commission then altered the drug quantity table used to calculate Guidelines ranges. The Commission decreased the recommended sentence for crack offenders to track the statutory change Congress made. It then made the change retroactive, giving previous offenders an opportunity for resentencing. Courts were still constrained, however, by the statutory minimums in place before 2010. Many offenders thus remained sentenced to terms above what the Guidelines recommended. Congress addressed this issue in 2018 by enacting the First Step Act. This law made the 2010 statutory changes retroactive and gave courts authority to reduce the sentences of certain crack offenders. … An offender is eligible for a sentence reduction under the First Step Act only if he previously received “a sentence for a covered offense.” The Act defines “‘covered offense’” as “a violation of a Federal criminal statute, the statutory penalties for which were modified by” certain provisions in the Fair Sentencing Act. Here, “statutory penalties” references the entire, integrated phrase “a violation of a Federal criminal statute.” And that phrase means “offense.” We thus ask whether the Fair Sentencing Act modified the statutory penalties for petitioner’s offense. It did not. The elements of petitioner’s offense are presented by two subsections of 21 U. S. C. §841. Subsection (a) makes it unlawful to knowingly or intentionally possess with intent to distribute any controlled substance. Subsection (b) lists additional facts that, if proved, trigger penalties. Before 2010, §§841(a) and (b) together defined three crack offenses relevant here...the elements of the third offense were (1) knowing or intentional possession with intent to distribute, (2) some unspecified amount of a schedule I or II drug. §§841(a), (b)(1)(C). Petitioner was convicted of the third offense—subparagraph (C). Before 2010, the statutory penalties for that offense were 0-to-20 years, up to a $1 million fine, or both, and a period of supervised release. After 2010, these statutory penalties remain exactly the same. The Fair Sentencing Act thus did not modify the statutory penalties for petitioner’s offense. … To avoid this straightforward result, petitioner and the United States offer a sleight of hand. Petitioner says that the phrase “statutory penalties” in fact means “penalty statute.” The United States similarly asserts that petitioner is eligible for a sentence reduction if the Fair Sentencing Act changed the “penalty scheme.” But we will not convert nouns to adjectives and vice versa. As stated above, “statutory penalties” references the entire phrase “a violation of a Federal criminal statute.” It thus directs our focus to the statutory penalties for petitioner’s offense, not the statute or statutory scheme. Even if the “penalty statute” or “penalty scheme” were the proper focus, neither was modified for subparagraph (C) offenders...The Fair Sentencing Act changed nothing in subparagraph (C). … In light of the clear text, we hold that §2(a) of the Fair Sentencing Act modified the statutory penalties only for subparagraph (A) and (B) crack offenses—that is, the offenses that triggered mandatory-minimum penalties. The judgment of the Court of Appeals is affirmed. It is so ordered. Lineup: Thomas, joined by Roberts, Breyer, Alito, Kagan, Gorsuch, Kavanaugh, and Barrett. Concurrence in part and concurrence in the judgment by Sotomayor. Concurrence in part and concurrence in the judgment (Sotomayor): I agree with the Court’s interpretation of the First Step Act, join Part II of its opinion, and concur in the judgment. I write separately to clarify the consequences of today’s decision. While the Fair Sentencing Act of 2010 and First Step Act of 2018 brought us a long way toward eradicating the vestiges of the 100-to-1 crack-to-powder disparity, some people have been left behind. Among them are people like petitioner Tarahrick Terry, who was convicted under 21 U. S. C. §841(b)(1)(C) for possessing with intent to distribute a small amount of crack cocaine and was sentenced as a career offender. If Terry had been convicted under §841(b)(1)(A) or §841(b)(1)(B), which require larger quantities of drugs, he would be eligible for resentencing under the First Step Act (even if sentenced as a career offender). Similarly, despite being convicted under subparagraph (C), if Terry’s Sentencing Guidelines range had been calculated like that of a non-career offender, he would have been eligible for a sentence reduction when the United States Sentencing Commission retroactively reduced the amount of crack cocaine necessary to trigger higher Guidelines ranges. But because Terry was both convicted under subparagraph (C) and sentenced as a career offender, he has never had a chance to ask for a sentence that reflects today’s understanding of the lesser severity of his crime. Absent action from the political branches, he never will. … There is no apparent reason that career offenders sentenced under subparagraph (C) should be left to serve out sentences that were unduly influenced by the 100-to-1 ratio. Indeed, the bipartisan lead sponsors of the First Step Act have urged this Court to hold that the Act “makes retroactive relief broadly available to all individuals sentenced for crack-cocaine offenses before the Fair Sentencing Act.” Unfortunately, the text will not bear that reading. Fortunately, Congress has numerous tools to right this injustice. https://www.supremecourt.gov/opinions/20pdf/20-5904_i4dk.pdf GREER v. UNITED STATES TLDR: After the case Rehaif v. United States, the government has to prove that a felon knew they were a felon when they possessed a firearm to prove a violation of the “felon-in-possession” statute. However, a felon convicted before Rehaif where the government didn’t prove they were a felon does not have a plain error claim to make unless they can seriously provide argument that they had evidence showing they didn’t know they were a felon. Felons usually know they are felons. Holding / Majority Opinion (Kavanaugh) Federal law prohibits the possession of firearms by certain categories of individuals, including by those who have been convicted of a crime punishable by more than one year in prison. In Rehaif v. United States, 588 U. S. ___ (2019), this Court clarified the mens rea requirement for firearms-possession offenses, including the felon-in-possession offense. In felon-in-possession cases after Rehaif, the Government must prove not only that the defendant knew he possessed a firearm, but also that he knew he was a felon when he possessed the firearm. As many courts have recognized and as common sense suggests, individuals who are convicted felons ordinarily know that they are convicted felons. That simple point turns out to be important in the two cases before us. Before this Court decided Rehaif, Gregory Greer and Michael Gary were separately convicted of felon-in-possession offenses. … After Greer’s trial and Gary’s plea, this Court decided Rehaif. Based on Rehaif, both Greer and Gary raised new mens rea arguments on appeal. Greer argued that he was entitled to a new trial because the District Court failed to instruct the jury that he had to know he was a felon. Gary similarly argued that his guilty plea must be vacated because the District Court failed to advise him during the plea colloquy that, if he went to trial, a jury would have to find that he knew he was a felon. … The question for this Court is whether Greer and Gary are entitled to plain-error relief for their unpreserved Rehaif claims. We conclude that they are not. … Here, both defendants forfeited their mens rea claims by failing to properly preserve them under Rule 51(b). We therefore conduct plain-error review under Rule 52(b). Rule 52(b) provides: “A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” “Rule 52(b) is permissive, not mandatory.” To establish eligibility for plain-error relief, a defendant must satisfy three threshold requirements. . First, there must be an error. Second, the error must be plain. Third, the error must affect “substantial rights,” which generally means that there must be “a reasonable probability that, but for the error, the outcome of the proceeding would have been different.” … In the two cases before us, all agree that Rehaif errors occurred during both defendants’ district court proceedings and that the errors were plain, thus satisfying the first two prongs of the plain-error test. We address the third prong: whether the Rehaif errors affected the defendants’ “substantial rights.” Greer has the burden of showing that, if the District Court had correctly instructed the jury on the mens rea element of a felon-in-possession offense, there is a “reasonable probability” that he would have been acquitted. And Gary has the burden of showing that, if the District Court had correctly advised him of the mens rea element of the offense, there is a “reasonable probability” that he would not have pled guilty. In a felon-in-possession case where the defendant was in fact a felon when he possessed firearms, the defendant faces an uphill climb in trying to satisfy the substantial-rights prong of the plain-error test based on an argument that he did not know he was a felon. The reason is simple: If a person is a felon, he ordinarily knows he is a felon. “Felony status is simply not the kind of thing that one forgets.” That simple truth is not lost upon juries. Thus, absent a reason to conclude otherwise, a jury will usually find that a defendant knew he was a felon based on the fact that he was a felon. A defendant considering whether to plead guilty would recognize as much and would likely factor that reality into the decision to plead guilty. In short, if a defendant was in fact a felon, it will be difficult for him to carry the burden on plain-error review of showing a “reasonable probability” that, but for the Rehaif error, the outcome of the district court proceedings would have been different. Of course, there may be cases in which a defendant who is a felon can make an adequate showing on appeal that he would have presented evidence in the district court that he did not in fact know he was a felon when he possessed firearms. Indeed, at oral argument, the Government conceded that there are circumstances in which a defendant might make such a showing. But if a defendant does not make such an argument or representation on appeal, the appellate court will have no reason to believe that the defendant would have presented such evidence to a jury, and thus no basis to conclude that there is a “reasonable probability” that the outcome would have been different absent the Rehaif error. Here, Greer and Gary have not carried the burden of showing that the Rehaif errors in their respective cases affected their substantial rights. Before their respective felon-in-possession offenses, both Greer and Gary had been convicted of multiple felonies. Those prior convictions are substantial evidence that they knew they were felons. Neither defendant has ever disputed the fact of their prior convictions. At trial, Greer stipulated to the fact that he was a felon. And Gary admitted that he was a felon when he pled guilty. Importantly, on appeal, neither Greer nor Gary has argued or made a representation that they would have presented evidence at trial that they did not in fact know they were felons when they possessed firearms. Therefore, Greer cannot show that, but for the Rehaif error in the jury instructions, there is a reasonable probability that a jury would have acquitted him. And Gary likewise cannot show that, but for the Rehaif error during the plea colloquy, there is a reasonable probability that he would have gone to trial rather than plead guilty. … When a defendant advances such an argument or representation on appeal, the court must determine whether the defendant has carried the burden of showing a “reasonable probability” that the outcome of the district court proceeding would have been different. Because Greer and Gary did not make any such argument or representation on appeal in these cases, they have not satisfied the plain-error test. We affirm the judgment of the U. S. Court of Appeals for the Eleventh Circuit, and we reverse the judgment of the U. S. Court of Appeals for the Fourth Circuit. It is so ordered. Lineup: Kavanaugh, joined by Roberts, Thomas, Breyer, Alito, Kagan, Gorsuch, and Barrett. Concurrence in part and dissent in part by Sotomayor. Concurrence in part and dissent in part (Sotomayor): For years, all 12 Courts of Appeals with criminal jurisdiction agreed that a defendant need not know he is a felon to be guilty of being a felon in possession of a firearm under 18 U. S. C. §§922(g)(1) and 924(a)(2). This Court came to the opposite conclusion in Rehaif v. United States, 588 U. S. ___ (2019). Gregory Greer’s and Michael Gary’s felon-in-possession convictions were not yet final when Rehaif was decided. The District Court did not inform Gary of the knowledge-of-status element at his plea colloquy, and Greer’s District Court did not instruct the jury that it had to make a knowledge-of-status finding to convict. Neither Greer nor Gary objected to those omissions. The question now is whether they have shown that their convictions should be vacated under plain-error review. I agree with the Court that Greer is not entitled to such relief because he cannot show that the trial error affected his substantial rights. I write separately to highlight two limits on today’s decision. First, the Court’s analysis in Greer’s case does not extend to the distinct context of harmless-error review, which applies when defendants contemporaneously object at trial. Second, the knowledge-of-status element is an element just like any other. The Government must prove it beyond a reasonable doubt, and defendants seeking relief based on Rehaif errors bear only the usual burden on plain-error review. With that understanding, I join the portions of the Court’s opinion addressing Greer’s case and affirming the judgment of the Court of Appeals for the Eleventh Circuit. As to Gary, I agree with the Court that the Court of Appeals for the Fourth Circuit erred in holding that the District Court’s failure to inform Gary of the knowledge-of-status element automatically entitled him to relief on plain-error review. Unlike this Court, I would not decide in the first instance whether Gary can make a case-specific showing that the error affected his substantial rights. I would instead vacate the judgment below and remand for the Fourth Circuit to address that question. I therefore respectfully dissent from the judgment as to Gary. https://www.supremecourt.gov/opinions/20pdf/19-8709_n7io.pdf
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Jun 17, 2021 17:30
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haveblue posted:I’m finding it really hard to think of a situation which requires the US to very suddenly and quickly grow the military which will not be settled within thirty minutes by a nuclear exchange The reason is the logic of the poster being pro draft is that of an edgy 5 grader saying “but why?” In other words it’s just stupid. And a waste of everyone’s time.
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Jun 17, 2021 17:50
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Once again immigrants living in the US for decades with legal protection get shafted because the INA et al are stupid terrible hosed up unwieldy mess 
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Jun 17, 2021 17:53
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What are the remaining big cases SCOTUS is supposed to rule on for this term? Stuff like voting rights, abortion, gay marriage?
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Jun 17, 2021 18:00
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Platystemon posted:Well I don’t know if this lineup is as hosed, but it’s up there. Thats the first time I've heard of Roberts writing a lone dissent Crows Turn Off posted:What are the remaining big cases SCOTUS is supposed to rule on for this term? Stuff like voting rights, abortion, gay marriage? On a quick glance, there's a few minor cases, some Arizona election law poo poo, and that big NCAA case. Nothing I can see about explosive social issues, but maybe I overlooked something. Rigel fucked around with this message at 18:21 on Jun 17, 2021 |
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Jun 17, 2021 18:11
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Rigel posted:Thats the first time I've heard of Roberts writing a lone dissent The Arizona election law one is a pretty big social issue because it ties directly in to all the new Jim Crow laws that red states are passing in response to Trump's loss and the Dems closely winning in Georgia thanks to people actually being able to vote for a change.
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Jun 17, 2021 18:32
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Opinions! 1 of 3 for June 17, which has just page after page of opinions. FULTON ET AL. v. CITY OF PHILADELPHIA, PENNSYLVANIA, ET AL. TLDR: Catholic Social Services can contract with Philadelphia to provide foster care services without certifying same-sex couples as foster parents under the Free Exercise Clause of the First Amendment. [The Court didn’t overrule Smith, holding that laws incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are neutral and generally applicable, which is a big dog that didn’t bark in the nighttime.] Holding / Majority Opinion (Roberts) Catholic Social Services is a foster care agency in Philadelphia. The City stopped referring children to CSS upon discovering that the agency would not certify same-sex couples to be foster parents due to its religious beliefs about marriage. The City will renew its foster care contract with CSS only if the agency agrees to certify same-sex couples. The question presented is whether the actions of Philadelphia violate the First Amendment. … The Philadelphia foster care system depends on cooperation between the City and private foster agencies like CSS. When children cannot remain in their homes, the City’s Department of Human Services assumes custody of them. The Department enters standard annual contracts with private foster agencies to place some of those children with foster families. … CSS believes that “marriage is a sacred bond between a man and a woman.” Because the agency understands the certification of prospective foster families to be an endorsement of their relationships, it will not certify unmarried couples—regardless of their sexual orientation—or same-sex married couples. CSS does not object to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children. No same-sex couple has ever sought certification from CSS. If one did, CSS would direct the couple to one of the more than 20 other agencies in the City, all of which currently certify same-sex couples. For over 50 years, CSS successfully contracted with the City to provide foster care services while holding to these beliefs. [In 2018 the City said they wouldn’t refer to CSS unless CSS agreed to certify same-sex couples, and CSS sued.] The Free Exercise Clause of the First Amendment, applicable to the States under the Fourteenth Amendment, provides that “Congress shall make no law . . . prohibiting the free exercise” of religion. As an initial matter, it is plain that the City’s actions have burdened CSS’s religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs. The City disagrees. In its view, certification reflects only that foster parents satisfy the statutory criteria, not that the agency endorses their relationships. But CSS believes that certification is tantamount to endorsement. And “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Our task is to decide whether the burden the City has placed on the religious exercise of CSS is constitutionally permissible. Smith held that laws incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are neutral and generally applicable. CSS urges us to overrule Smith, and the concurrences in the judgment argue in favor of doing so. But we need not revisit that decision here. This case falls outside Smith because the City has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable. Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature. CSS points to evidence in the record that it believes demonstrates that the City has transgressed this neutrality standard, but we find it more straightforward to resolve this case under the rubric of general applicability. A law is not generally applicable if it “invite[s]” the government to consider the particular reasons for a person’s conduct by providing “‘a mechanism for individualized exemptions.’” For example, in Sherbert v. Verner, 374 U. S. 398 (1963), a Seventh-day Adventist was fired because she would not work on Saturdays. Unable to find a job that would allow her to keep the Sabbath as her faith required, she applied for unemployment benefits. The State denied her application under a law prohibiting eligibility to claimants who had “failed, without good cause . . . to accept available suitable work.” We held that the denial infringed her free exercise rights and could be justified only by a compelling interest. Smith later explained that the unemployment benefits law in Sherbert was not generally applicable because the “good cause” standard permitted the government to grant exemptions based on the circumstances underlying each application. Smith went on to hold that “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.” A law also lacks general applicability if it prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way. In Church of Lukumi Babalu Aye, Inc. v. Hialeah, for instance, the City of Hialeah adopted several ordinances prohibiting animal sacrifice, a practice of the Santeria faith. The City claimed that the ordinances were necessary in part to protect public health, which was “threatened by the disposal of animal carcasses in open public places.” But the ordinances did not regulate hunters’ disposal of their kills or improper garbage disposal by restaurants, both of which posed a similar hazard. The Court concluded that this and other forms of underinclusiveness meant that the ordinances were not generally applicable. The City initially argued that CSS’s practice violated section 3.21 of its standard foster care contract. We conclude, however, that this provision is not generally applicable as required by Smith. The current version of section 3.21 specifies in pertinent part: “Rejection of Referral. Provider shall not reject a child or family including, but not limited to, . . . prospective foster or adoptive parents, for Services based upon . . . their . . . sexual orientation . . . unless an exception is granted by the Commissioner or the Commissioner’s designee, in his/her sole discretion.” This provision requires an agency to provide “Services,” defined as “the work to be performed under this Contract,” App. 560, to prospective foster parents regardless of their sexual orientation. Like the good cause provision in Sherbert, section 3.21 incorporates a system of individual exemptions, made available in this case at the “sole discretion” of the Commissioner. The City has made clear that the Commissioner “has no intention of granting an exception” to CSS. But the City “may not refuse to extend that [exemption] system to cases of ‘religious hardship’ without compelling reason.” The City and intervenor-respondents resist this conclusion on several grounds. They first argue that governments should enjoy greater leeway under the Free Exercise Clause when setting rules for contractors than when regulating the general public. The government, they observe, commands heightened powers when managing its internal operations. And when individuals enter into government employment or contracts, they accept certain restrictions on their freedom as part of the deal. Given this context, the City and intervenor-respondents contend, the government should have a freer hand when dealing with contractors like CSS. These considerations cannot save the City here. As Philadelphia rightly acknowledges, “principles of neutrality and general applicability still constrain the government in its capacity as manager.” We have never suggested that the government may discriminate against religion when acting in its managerial role. Finally, the City and intervenor-respondents contend that the availability of exceptions under section 3.21 is irrelevant because the Commissioner has never granted one. That misapprehends the issue. The creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless whether any exceptions have been given, because it “invite[s]” the government to decide which reasons for not complying with the policy are worthy of solicitude—here, at the Commissioner’s “sole discretion.” In addition to relying on the contract, the City argues that CSS’s refusal to certify same-sex couples constitutes an “Unlawful Public Accommodations Practice[]” in violation of the Fair Practices Ordinance. That ordinance forbids “deny[ing] or interfer[ing] with the public accommodations opportunities of an individual or otherwise discriminat[ing] based on his or her race, ethnicity, color, sex, sexual orientation, . . . disability, marital status, familial status,” or several other protected categories. The City contends that foster care agencies are public accommodations and therefore forbidden from discriminating on the basis of sexual orientation when certifying foster parents. CSS counters that “foster care has never been treated as a ‘public accommodation’ in Philadelphia.” In any event, CSS adds, the ordinance cannot qualify as generally applicable because the City allows exceptions to it for secular reasons despite denying one for CSS’s religious exercise. But that constitutional issue arises only if the ordinance applies to CSS in the first place. We conclude that it does not because foster care agencies do not act as public accommodations in performing certifications. The ordinance defines a public accommodation in relevant part as “[a]ny place, provider or public conveyance, whether licensed or not, which solicits or accepts the patronage or trade of the public or whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public.” Certification is not “made available to the public” in the usual sense of the words. To make a service “available” means to make it “accessible, obtainable.” Related state law illustrates the same point. A Pennsylvania antidiscrimination statute similarly defines a public accommodation as an accommodation that is “open to, accepts or solicits the patronage of the general public.” It fleshes out that definition with examples like hotels, restaurants, drug stores, swimming pools, barbershops, and public conveyances. The “common theme” is that a public accommodation must “provide a benefit to the general public allowing individual members of the general public to avail themselves of that benefit if they so desire.” Certification as a foster parent, by contrast, is not readily accessible to the public. It involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus. The process takes three to six months. The contractual non-discrimination requirement imposes a burden on CSS’s religious exercise and does not qualify as generally applicable. The concurrence protests that the “Court granted certiorari to decide whether to overrule [Smith],” and chides the Court for seeking to “sidestep the question.” But the Court also granted review to decide whether Philadelphia’s actions were permissible under our precedents. CSS has demonstrated that the City’s actions are subject to “the most rigorous of scrutiny” under those precedents. Because the City’s actions are therefore examined under the strictest scrutiny regardless of Smith, we have no occasion to reconsider that decision here. A government policy can survive strict scrutiny only if it advances “interests of the highest order” and is narrowly tailored to achieve those interests. Put another way, so long as the government can achieve its interests in a manner that does not burden religion, it must do so. ... That leaves the interest of the City in the equal treatment of prospective foster parents and foster children. We do not doubt that this interest is a weighty one, for “[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.” On the facts of this case, however, this interest cannot justify denying CSS an exception for its religious exercise. The creation of a system of exceptions under the contract undermines the City’s contention that its nondiscrimination policies can brook no departures. The City offers no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others. As Philadelphia acknowledges, CSS has “long been a point of light in the City’s foster-care system.” CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else. The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment. In view of our conclusion that the actions of the City violate the Free Exercise Clause, we need not consider whether they also violate the Free Speech Clause. The judgment of the United States Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered Lineup: Roberts, joined by Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett. Concurrence by Barrett, joined by Kavanaugh and joined by Breyer as to all but the first paragraph. Concurrence in the judgment by Alito, joined by Thomas and Gorsuch. Concurrence in the judgment by Gorsuch, joined by Thomas and Alito. Concurrence (Barrett, joined by Kavanaugh and joined by Breyer as to all but the first paragraph): [Breyer doesn’t think Smith should be overruled and so doesn’t join this paragraph] In Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), this Court held that a neutral and generally applicable law typically does not violate the Free Exercise Clause—no matter how severely that law burdens religious exercise....In my view, the textual and structural arguments against Smith are more compelling. As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination. Yet what should replace Smith? The prevailing assumption seems to be that strict scrutiny would apply whenever a neutral and generally applicable law burdens religious exercise. But I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced. There would be a number of issues to work through if Smith were overruled. To name a few: Should entities like Catholic Social Services— which is an arm of the Catholic Church—be treated differently than individuals? Should there be a distinction between indirect and direct burdens on religious exercise? What forms of scrutiny should apply? And if the answer is strict scrutiny, would pre-Smith cases rejecting free exercise challenges to garden-variety laws come out the same way? We need not wrestle with these questions in this case, though, because the same standard applies regardless whether Smith stays or goes. A longstanding tenet of our free exercise jurisprudence—one that both pre-dates and survives Smith—is that a law burdening religious exercise must satisfy strict scrutiny if it gives government officials discretion to grant individualized exemptions. … And all nine Justices agree that the City cannot satisfy strict scrutiny. I therefore see no reason to decide in this case whether Smith should be overruled, much less what should replace it. I join the Court’s opinion in full. Concurrence in the judgment (Alito, joined by Thomas and Gorsuch): This case presents an important constitutional question that urgently calls out for review: whether this Court’s governing interpretation of a bedrock constitutional right, the right to the free exercise of religion, is fundamentally wrong and should be corrected. In Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), the Court abruptly pushed aside nearly 40 years of precedent and held that the First Amendment’s Free Exercise Clause tolerates any rule that categorically prohibits or commands specified conduct so long as it does not target religious practice. Even if a rule serves no important purpose and has a devastating effect on religious freedom, the Constitution, according to Smith, provides no protection. This severe holding is ripe for reexamination. There is no question that Smith’s interpretation can have startling consequences. Here are a few examples. Suppose that the Volstead Act, which implemented the Prohibition Amendment, had not contained an exception for sacramental wine. The Act would have been consistent with Smith even though it would have prevented the celebration of a Catholic Mass anywhere in the United States. Or suppose that a State, following the example of several European countries, made it unlawful to slaughter an animal that had not first been rendered unconscious. That law would be fine under Smith even though it would outlaw kosher and halal slaughter. Or suppose that a jurisdiction in this country, following the recommendations of medical associations in Europe, banned the circumcision of infants. A San Francisco ballot initiative in 2010 proposed just that. A categorical ban would be allowed by Smith even though it would prohibit an ancient and important Jewish and Muslim practice. Or suppose that this Court or some other court enforced a rigid rule prohibiting attorneys from wearing any form of head covering in court. The rule would satisfy Smith even though it would prevent Orthodox Jewish men, Sikh men, and many Muslim women from appearing. Many other examples could be added. We may hope that legislators and others with rulemaking authority will not go as far as Smith allows, but the present case shows that the dangers posed by Smith are not hypothetical. … To fully appreciate what the Court did in Smith, it is necessary to recall the substantial body of precedent that it displaced. Our seminal decision on the question of religious exemptions from generally applicable laws was Sherbert v. Verner, 374 U. S. 398 (1963), which had been in place for nearly four decades when Smith was decided. In that earlier case, Adell Sherbert, a Seventh-day Adventist, was fired because she refused to work on Saturday, her Sabbath Day. Unable to find other employment that did not require Saturday work, she applied for unemployment compensation but was rejected because state law disqualified claimants who “failed, without good cause . . . to accept available suitable work when offered.” The State Supreme Court held that this denial of benefits did not violate Sherbert’s free-exercise right, but this Court reversed. … The test distilled from Sherbert—that a law that imposes a substantial burden on the exercise of religion must be narrowly tailored to serve a compelling interest—was the governing rule for the next 37 years. … This is where our case law stood when Smith reached the Court. The underlying situation in Smith was very similar to that in Sherbert. Just as Adell Sherbert had been denied unemployment benefits due to conduct mandated by her religion (refraining from work on Saturday), Alfred Smith and Galen Black were denied unemployment benefits because of a religious practice (ingesting peyote as part of a worship service of the Native American Church). … The State defended the denial of benefits under the Sherbert framework. It argued that it had a compelling interest in combating the use of dangerous drugs and that accommodating their use for religious purposes would upset its enforcement scheme. The State never suggested that Sherbert should be overruled. Instead, the crux of its disagreement with Smith and Black and the State Supreme Court was whether its interest in preventing drug use could be served by a more narrowly tailored rule that made an exception for religious use by members of the Native American Church. … without briefing or argument on whether Sherbert should be cast aside, the Court adopted what it seems to have thought was a clear-cut test that would be easy to apply: A “generally applicable and otherwise valid” rule does not violate the Free Exercise Clause “if prohibiting the exercise of religion . . . is not [its] object . . . but merely the incidental effect of ” its operation. Other than cases involving rules that target religious conduct, the Sherbert test was held to apply to only two narrow categories of cases: (1) those involving the award of unemployment benefits or other schemes allowing individualized exemptions and (2) so-called “hybrid rights” cases. ... the ordinary meaning of “prohibiting the free exercise of religion” was [in the 1790s] (and still is) forbidding or hindering unrestrained religious practices or worship. That straightforward understanding is a far cry from the interpretation adopted in Smith. It certainly does not suggest a distinction between laws that are generally applicable and laws that are targeted. As interpreted in Smith, the Clause is essentially an antidiscrimination provision: It means that the Federal Government and the States cannot restrict conduct that constitutes a religious practice for some people unless it imposes the same restriction on everyone else who engages in the same conduct. Smith made no real attempt to square that equal-treatment interpretation with the ordinary meaning of the Free Exercise Clause’s language, and it is hard to see how that could be done. The key point for present purposes is that the text of the Free Exercise Clause gives a specific group of people (those who wish to engage in the “exercise of religion”) the right to do so without hindrance. The language of the Clause does not tie this right to the treatment of persons not in this group. The oddity of Smith’s interpretation can be illustrated by considering what the same sort of interpretation would mean if applied to other provisions of the Bill of Rights. Take the Sixth Amendment, which gives a specified group of people (the “accused” in criminal cases) a particular right (the right to the “Assistance of Counsel for [their] defence”). Suppose that Congress or a state legislature adopted a law banning counsel in all litigation, civil and criminal. Would anyone doubt that this law would violate the Sixth Amendment rights of criminal defendants? … Not only is it difficult to square Smith’s interpretation with the terms of the Free Exercise Clause, the absence of any language referring to equal treatment is striking. If equal treatment was the objective, why didn’t Congress say that? And since it would have been simple to cast the Free Exercise Clause in equal-treatment terms, why would the state legislators who voted for ratification have read the Clause that way? … That the free-exercise right included the right to certain religious exemptions is strongly supported by the practice of the Colonies and States. When there were important clashes between generally applicable laws and the religious practices of particular groups, colonial and state legislatures were willing to grant exemptions—even when the generally applicable laws served critical state interests. Oath exemptions are illustrative. Oath requirements were considered “indispensable” to civil society because they were thought to ensure that individuals gave truthful testimony and fulfilled commitments. Quakers and members of some other religious groups refused to take oaths, and therefore a categorical oath requirement would have resulted in the complete exclusion of these Americans from important civic activities, such as testifying in court and voting. Tellingly, that is not what happened. In the 1600s, Carolina allowed Quakers to enter a pledge rather than swearing an oath. In 1691, New York permitted Quakers to give testimony after giving an affirmation. Massachusetts did the same in 1743. In 1734, New York also allowed Quakers to qualify to vote by making an affirmation, and in 1740, Georgia granted an exemption to Jews, allowing them to omit the phrase “‘on the faith of a Christian’” from the State’s naturalization oath. By 1789, almost all States had passed oath exemptions. … Defenders of Smith have advanced historical arguments of their own, but they are unconvincing, and in any event, plainly insufficient to overcome the ordinary meaning of the constitutional text. … Smith was wrongly decided. As long as it remains on the books, it threatens a fundamental freedom. And while precedent should not lightly be cast aside, the Court’s error in Smith should now be corrected. If Smith is overruled, what legal standard should be applied in this case? The answer that comes most readily to mind is the standard that Smith replaced: A law that imposes a substantial burden on religious exercise can be sustained only if it is narrowly tailored to serve a compelling government interest. Whether this test should be rephrased or supplemented with specific rules is a question that need not be resolved here because Philadelphia’s ouster of CSS from foster care work simply does not further any interest that can properly be protected in this case. … For all these reasons, I would overrule Smith and reverse the decision below. Philadelphia’s exclusion of CSS from foster care work violates the Free Exercise Clause, and CSS is therefore entitled to an injunction barring Philadelphia from taking such action. After receiving more than 2,500 pages of briefing and after more than a half-year of post-argument cogitation, the Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this Court to stand up for the First Amendment have every right to be disappointed—as am I Concurrence in the judgment (Gorsuch, joined by Thomas and Alito): The Court granted certiorari to decide whether to overrule Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). As JUSTICE ALITO’s opinion demonstrates, Smith failed to respect this Court’s precedents, was mistaken as a matter of the Constitution’s original public meaning, and has proven unworkable in practice. A majority of our colleagues, however, seek to sidestep the question. They agree that the City of Philadelphia’s treatment of Catholic Social Services (CSS) violates the Free Exercise Clause. But, they say, there’s no “need” or “reason” to address the error of Smith today. On the surface it may seem a nice move, but dig an inch deep and problems emerge. Smith exempts “neutral” and “generally applicable” laws from First Amendment scrutiny. The City argues that its challenged rules qualify for that exemption because they require all foster-care agencies—religious and non-religious alike—to recruit and certify same-sex couples interested in serving as foster parents. For its part, the majority assumes (without deciding) that Philadelphia’s rule is indeed “neutral” toward religion. So to avoid Smith’s exemption and subject the City’s policy to First Amendment scrutiny, the majority must carry the burden of showing that the policy isn’t “generally applicable.” That path turns out to be a long and lonely one. … It’s not as if we don’t know the right answer. Smith has been criticized since the day it was decided. No fewer than ten Justices—including six sitting Justices—have questioned its fidelity to the Constitution. The Court granted certiorari in this case to resolve its fate. The parties and amici responded with over 80 thoughtful briefs addressing every angle of the problem. JUSTICE ALITO has offered a comprehensive opinion explaining why Smith should be overruled. And not a single Justice has lifted a pen to defend the decision. So what are we waiting for? We hardly need to “wrestle” today with every conceivable question that might follow from recognizing Smith was wrong. To be sure, any time this Court turns from misguided precedent back toward the Constitution’s original public meaning, challenging questions may arise across a large field of cases and controversies. But that’s no excuse for refusing to apply the original public meaning in the dispute actually before us. Rather than adhere to Smith until we settle on some “grand unified theory” of the Free Exercise Clause for all future cases until the end of time, see American Legion v. American Humanist Assn., the Court should overrule it now, set us back on the correct course, and address each case as it comes. What possible benefit does the majority see in its studious indecision about Smith when the costs are so many? The particular appeal before us arises at the intersection of public accommodations laws and the First Amendment; it involves same-sex couples and the Catholic Church. Perhaps our colleagues believe today’s circuitous path will at least steer the Court around the controversial subject matter and avoid “picking a side.” But refusing to give CSS the benefit of what we know to be the correct interpretation of the Constitution is picking a side. Smith committed a constitutional error. Only we can fix it. Dodging the question today guarantees it will recur tomorrow. These cases will keep coming until the Court musters the fortitude to supply an answer. Respectfully, it should have done so today. https://www.supremecourt.gov/opinions/20pdf/19-123_g3bi.pdf
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Jun 17, 2021 20:15
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Opinions! 2 of 3 for June 17, which has just page after page of opinions. NESTLE USA, INC. v. DOE ET AL. TLDR: The Alien Tort Statute (allowing federal courts to hear certain civil actions filed by aliens) does not apply outside the US, and even if the defendant “made major operational decisions” in the US that’s not enough US contact to let Malians allegedly trafficked into Ivory Coast to produce cocoa ultimately for Nestlé sue Nestlé USA in the US. Holding / Majority Opinion (Thomas) The Alien Tort Statute (ATS) gives federal courts jurisdiction to hear certain civil actions filed by aliens. Although this jurisdictional statute does not create a cause of action, our precedents have stated that courts may exercise common-law authority under this statute to create private rights of action in very limited circumstances. Respondents here seek a judicially created cause of action to recover damages from American corporations that allegedly aided and abetted slavery abroad. Although respondents’ injuries occurred entirely overseas, the Ninth Circuit held that respondents could sue in federal court because the defendant corporations allegedly made “major operational decisions” in the United States. The Ninth Circuit erred by allowing this suit to proceed. According to the operative complaint, Ivory Coast—a West-African country also known as Côte d’Ivoire—is responsible for the majority of the global cocoa supply. Respondents are six individuals from Mali who allege that they were trafficked into Ivory Coast as child slaves to produce cocoa. Petitioners Nestlé USA and Cargill are U. S.-based companies that purchase, process, and sell cocoa. They did not own or operate farms in Ivory Coast. But they did buy cocoa from farms located there. They also provided those farms with technical and financial resources—such as training, fertilizer, tools, and cash—in exchange for the exclusive right to purchase cocoa. Respondents allege that they were enslaved on some of those farms. Respondents sued Nestlé, Cargill, and other entities, contending that this arrangement aided and abetted child slavery. Respondents argue that petitioners “knew or should have known” that the farms were exploiting enslaved children yet continued to provide those farms with resources. They further contend that petitioners had economic leverage over the farms but failed to exercise it to eliminate child slavery. And although the resource distribution and respondents’ injuries occurred outside the United States, respondents contend that they can sue in federal court because petitioners allegedly made all major operational decisions from within the United States. … Petitioners and the United States argue that respondents improperly seek extraterritorial application of the ATS. We agree. Our precedents “reflect a two-step framework for analyzing extraterritoriality issues.” First, we presume that a statute applies only domestically, and we ask “whether the statute gives a clear, affirmative indication” that rebuts this presumption. For the ATS, Kiobel answered that question in the negative. Although we have interpreted its purely jurisdictional text to implicitly enable courts to create causes of action, the ATS does not expressly “regulate conduct” at all, much less “evince a ‘clear indication of extraterritoriality.’ ” Courts thus cannot give “extraterritorial reach” to any cause of action judicially created under the ATS. Second, where the statute, as here, does not apply extraterritorially, plaintiffs must establish that “the conduct relevant to the statute’s focus occurred in the United States.” “[T]hen the case involves a permissible domestic application even if other conduct occurred abroad.” The parties dispute what conduct is relevant to the “focus” of the ATS. Respondents seek a judicially created cause of action to sue petitioners for aiding and abetting forced labor overseas. Arguing that aiding and abetting is not even a tort, but merely secondary liability for a tort, petitioners and the United States contend that “the conduct relevant to the [ATS’s] focus” is the conduct that directly caused the injury. See id., at 346 (a plaintiff who “does not overcome the presumption against extraterritoriality . . . therefore must allege and prove a domestic injury”). All of that alleged conduct occurred overseas in this suit. The United States also argues that the “focus” inquiry is beside the point; courts should not create an aiding-and-abetting cause of action under the ATS at all. For their part, respondents argue that aiding and abetting is a freestanding tort and that courts may create a private right of action to enforce it under the ATS. They also contend that the “focus” of the ATS is conduct that violates international law, that aiding and abetting forced labor is a violation of international law, and that domestic conduct can aid and abet an injury that occurs overseas. Even if we resolved all these disputes in respondents’ favor, their complaint would impermissibly seek extraterritorial application of the ATS. Nearly all the conduct that they say aided and abetted forced labor—providing training, fertilizer, tools, and cash to overseas farms—occurred in Ivory Coast. The Ninth Circuit nonetheless let this suit proceed because respondents pleaded as a general matter that “every major operational decision by both companies is made in or approved in the U. S.” But allegations of general corporate activity—like decisionmaking—cannot alone establish domestic application of the ATS. As we made clear in Kiobel, a plaintiff does not plead facts sufficient to support domestic application of the ATS simply by alleging “mere corporate presence” of a defendant. Pleading general corporate activity is no better. Because making “operational decisions” is an activity common to most corporations, generic allegations of this sort do not draw a sufficient connection between the cause of action respondents seek—aiding and abetting forced labor overseas—and domestic conduct. “[T]he presumption against extraterritorial application would be a craven watchdog indeed if it retreated to its kennel whenever some domestic activity is involved in the case.” To plead facts sufficient to support a domestic application of the ATS, plaintiffs must allege more domestic conduct than general corporate activity. The Ninth Circuit erred when it held otherwise. [After that, Thomas goes off on his own, which will be labeled as a concurrence.] The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings. It is so ordered. Lineup: Thomas, joined by Roberts, Breyer, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett (Parts I and II of his opinion). Concurrence by Thomas, joined by Gorsuch and Kavanaugh (Part III of his opinion). Concurrence by Gorsuch, joined by Alito for Part I and joined by Kavanaugh for Part II. Concurrence in part and concurrence in the judgment by Sotomayor, joined by Breyer and Kagan. Dissent by Alito. Concurrence: (Thomas, joined by Gorsuch and Kavanaugh): [Part III of Thomas’s opinion] Respondents’ suit fails for another reason, which does not require parsing allegations about where conduct occurred: We cannot create a cause of action that would let them sue petitioners. That job belongs to Congress, not the Federal Judiciary. Sosa indicated that courts may exercise common-law authority under the ATS to create private rights of action in very limited circumstances. Sosa suggested, for example, that courts could recognize causes of action for three historical violations of international law: “violation of safe conducts, infringement of the rights of ambassadors, and piracy.” Ibid. But our precedents since Sosa have clarified that courts must refrain from creating a cause of action whenever there is even a single sound reason to defer to Congress. Tellingly, we have never created a cause of action under the ATS. Even without reexamining Sosa, our existing precedents prohibit us from creating a cause of action here. Originally passed as part of the Judiciary Act of 1789, the ATS provides jurisdiction to hear claims brought “by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” If, for example, a treaty adopted by the United States creates a tort-related duty, federal district courts have jurisdiction to hear claims by aliens for breach of that duty. But the statute on its own does not empower aliens to sue. We have been clear that “the ATS is a jurisdictional statute creating no new causes of action.” Aliens harmed by a violation of international law must rely on legislative and executive remedies, not judicial remedies, unless provided with an independent cause of action. In more than 200 years, Congress has established just one: the Torture Victim Protection Act of 1991. That Act creates a private right of action for victims of torture and extrajudicial killings in violation of international law. Because that cause of action does not apply here, respondents ask us to create a new one. They suggest that a plaintiff is entitled to a judicially created cause of action absent compelling reasons to withhold one. But our precedents demand precisely the opposite rule. ... we described [in Sosa] a twostep test that plaintiffs must satisfy before a court can create a cause of action under the ATS. First, the plaintiff must establish that the defendant violated “‘a norm that is specific, universal, and obligatory’” under international law. That norm must be “defined with a specificity comparable to” the three international torts known in 1789. Second, the plaintiff must show that courts should exercise “judicial discretion” to create a cause of action rather than defer to Congress. ... Regardless of whether respondents have satisfied the first step of the Sosa test, it is clear that they have not satisfied the second. Our decisions since Sosa, as well as congressional activity, compel the conclusion that federal courts should not recognize private rights of action for violations of international law beyond the three historical torts identified in Sosa. … When we decided Sosa, we remarked that there is “no basis to suspect Congress had any examples in mind beyond th[ree] torts” when it enacted the ATS. We “assume[d]” that no “development” of law had yet “precluded federal courts from recognizing” causes of action not created by Congress. Nobody here has expressly asked us to revisit Sosa. But precedents since Sosa have substantially narrowed the circumstances in which “judicial discretion” under the Sosa test is permitted. Under existing precedent, then, courts in some circumstances might still apply Sosa to recognize causes of action for the three historical torts likely on the mind of the First Congress. But as to other torts, our precedents already make clear that there always is a sound reason to defer to Congress, so courts may not create a cause of action for those torts. Whether and to what extent defendants should be liable under the ATS for torts beyond the three historical torts identified in Sosa lies within the province of the Legislative Branch. Concurrence: (Gorsuch, joined by Alito for Part I and joined by Kavanaugh for Part II): I write separately to add two points. First, this Court granted certiorari to consider the petitioners’ argument that the Alien Tort Statute (ATS) exempts corporations from suit. Rather than resolve that question, however, the Court rests its decision on other grounds. That is a good thing: The notion that corporations are immune from suit under the ATS cannot be reconciled with the statutory text and original understanding. Second, the time has come to jettison the misguided notion that courts have discretion to create new causes of action under the ATS—for the reasons JUSTICE THOMAS offers and others as well. [Part I, joined by Alito] The First Congress enacted what we today call the ATS as part of the Judiciary Act of 1789. At the time, the ATS occupied only a paragraph in the larger statute, providing federal courts jurisdiction “concurrent with the courts of the several States” over “all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.” The law has hardly changed since and it remains similarly succinct: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Nothing in the ATS supplies corporations with special protections against suit. The statute specifies which plaintiffs may sue (“alien[s]”). It speaks of the sort of claims those plaintiffs can bring (“tort[s]” in “violation of the law of nations or a treaty of the United States”). But nowhere does it suggest that anything depends on whether the defendant happens to be a person or a corporation. Understandably too. Causes of action in tort normally focus on wrongs and injuries, not who is responsible for them. When the First Congress passed the ATS, a “tort” meant simply an “injury or wrong” whoever committed it. Nothing has changed in the intervening centuries. Generally, too, the law places corporations and individuals on equal footing when it comes to assigning rights and duties. Even before the ATS’s adoption, Blackstone explained that, “[a]fter a corporation is so formed and named, it acquires many powers, rights, capacities, and incapacities,” including “[t]o sue or be sued, implead or be impleaded, grant or receive, by its corporate name, and do all other acts as natural persons may.” If more evidence were necessary to prove the point, plenty would seem available. Case after case makes plain that, “[a]t a very early period, it was decided in Great Britain, as well as in the United States, that actions might be maintained against corporations for torts . . . of nearly every variety.” … [Part II, joined by Kavanaugh] The real problem with this lawsuit and others like it thus isn’t whether the defendant happens to be a corporation. To my mind, it’s this: Just as the ATS nowhere privileges corporations, it nowhere deputizes the Judiciary to create new causes of action. Rather, the statute confers “jurisdiction” on federal courts to adjudicate “tort” claims by aliens for violations “of the law of nations.” Perhaps this language was originally understood to furnish federal courts with authority to entertain a limited number of specific and existing intentional tort claims that, if left unremedied, could give rise to reprisals or war. Perhaps, too, the law affords federal courts jurisdiction to hear any other tort claims Congress chooses to create. But nothing in the statute’s terse terms obviously authorizes federal courts to invent new causes of action on their own. Nor would I find such an extraordinary authority lingering latent after all this time. This Court has never—not once in 230 years—invoked the ATS to create a new cause of action. Of course, courts at common law may have enjoyed the power to create (or “recognize”) causes of action. But the power to create a cause of action is in every meaningful sense the power to enact a new law that assigns new rights and new legally enforceable duties. And our Constitution generally assigns that power to Congress. … To be sure, the Court recently complicated this picture in Sosa v. Alvarez-Machain, 542 U. S. 692 (2004). There, the Court recognized that federal judges usually may not invoke the ATS to create new causes of action. The Court also refused to create the new cause of action the plaintiff proposed. But Sosa also proceeded to speculate that—in some future case—this Court might invoke the ATS to create a new cause of action. “The door,” Sosa said, is “ajar subject to vigilant doorkeeping.” We have witnessed nearly two decades of ATS litigation since Sosa. During that period, plaintiffs have presented for this Court’s consideration one new potential cause of action after another. Each time, the lawyering has been thoughtful and able. Always, too, the proposed cause of action is potentially worthy. Yet, in every case, we have turned up our noses. I would stop feigning some deficiency in these offerings. However vigilant the doorkeeper, the truth is this is a door Sosa should not have cracked. Whether and which international norms ought to be carried into domestic law—and how best to accomplish that goal while advancing this country’s foreign policy interests—poses “delicate” and “complex” questions involving “large elements of prophecy . . . for which the Judiciary has neither aptitude, facilities nor responsibility.” ... Making this clear would have other virtues too. It would get this Court out of the business of having to parse out ever more convoluted reasons why it declines to exercise its assumed discretion to create new ATS causes of action. It would absolve future parties from years of expensive and protracted litigation destined to yield nothing. It would afford everyone interested in these matters clear guidance about whom they should lobby for new laws. It would avoid the false modesty of adhering to a precedent that seized power we do not possess in favor of the truer modesty of ceding an ill-gotten gain. And it would clarify where accountability lies when a new cause of action is either created or refused: With the people’s elected representatives. Concurrence in part and concurrence in the judgment (Sotomayor, joined by Breyer and Kagan): I join Parts I and II of the Court’s opinion. Because respondents have failed to allege a domestic application of the Alien Tort Statute (ATS), their complaint must be dismissed. I do not, however, join JUSTICE THOMAS’ alternative path to that disposition, which would overrule Sosa v. Alvarez-Machain, 542 U. S. 692 (2004), in all but name. The First Congress enacted the ATS to ensure that federal courts are available to foreign citizens who suffer international law violations for which other nations may expect the United States to provide a forum for redress. JUSTICE THOMAS would limit the ATS’ reach to only the three international law torts that were recognized in 1789. That reading contravenes both this Court’s express holding in Sosa and the text and history of the ATS. Included in the Judiciary Act of 1789, the ATS gave federal courts “cognizance . . . of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.” The ATS does not list the torts that fall within its purview. Rather, the statute was “‘enacted on the understanding that [federal] common law would provide a cause of action for [a] modest number of international law violations.’” Three such torts were “probably on minds of the men who drafted the ATS”: “violation of safe conducts, infringement of the rights of ambassadors, and piracy.” Unsurprisingly, the domestic and international legal landscape has changed in the two centuries since Congress enacted the ATS. On the one hand, this Court in Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), “denied the existence of any federal ‘general’ common law.” Erie thus foiled the First Congress’ expectation “that the common law would,” of its own accord, “provide a cause of action for the modest number of international law violations,” that qualify as “tort[s] . . . in violation of the law of nations,” On the other hand, the class of law-of-nations torts has grown “with the evolving recognition . . . that certain acts constituting crimes against humanity are in violation of basic precepts of international law.” Like the pirates of the 18th century, today’s torturers, slave traders, and perpetrators of genocide are “‘hostis humani generis, an enemy of all mankind.’” The Court reconciled these two legal developments in Sosa v. Alvarez-Machain. There, the Court explained that it would “be unreasonable to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet” in a post-Erie world. Indeed, while Erie rejected the notion of a general federal common law, the “post-Erie understanding has identified limited enclaves in which federal courts may derive some substantive law in a common law way.” For over 200 years (both before and after Erie), courts have adhered to the principle that “the domestic law of the United States recognizes the law of nations.” … In the years since, this Court has read Sosa to announce a two-step test for recognizing the availability of a cause of action under the ATS. Courts first ask “whether a plaintiff can demonstrate that the alleged violation is ‘of a norm that is specific, universal, and obligatory.’” If so, then “it must be determined further whether allowing [a] case to proceed under the ATS is a proper exercise of judicial discretion.” JUSTICE THOMAS reads Sosa and this Court’s subsequent precedents to impose an “extraordinarily strict” standard at Sosa’s second step. If a court “can identify even one ‘sound reaso[n]’” to think Congress might doubt the need for a cause of action under the ATS, we are told, the court should refuse to recognize it. … The ATS was a statute born of necessity. In the early days of the Republic, the “Continental Congress was hamstrung by its inability” under the Articles of Confederation “to ‘cause infractions of treaties, or of the law of nations to be punished.’” … As this Court explained in Sosa, “[t]he anxieties of the preconstitutional period cannot be ignored easily enough to think that the [ATS] was not meant to have a practical effect.’ ” It was Congress’ assessment that diplomatic strife is best avoided by providing a federal forum to redress those law-of-nations torts that, if not remedied, could bring international opprobrium upon the United States. Because the First Congress did not pass “the ATS only to leave it lying fallow indefinitely,” the statute “is best read as having been enacted on the understanding that the common law would provide a cause of action” for widely recognized torts in violation of the law of nations. … Applying the wrong standard at Sosa’s second step, JUSTICE THOMAS reaches the wrong answer. He announces that, except for “the three historical torts likely on the mind of the First Congress,” “there always is a sound reason” for courts to refuse to recognize actionable torts under the ATS. He offers three reasons for this dramatic curtailment of the ATS. None is persuasive. First, JUSTICE THOMAS argues that “creating a cause of action to enforce international law beyond three historical torts invariably gives rise to foreign-policy concerns.” He offers no meaningful support for that sweeping assertion, nor does he explain why an ATS suit for the tort of piracy, for example, would categorically present fewer foreign-policy concerns than a suit for aiding and abetting child slavery. … Second, JUSTICE THOMAS suggests that federal courts lack “the ‘institutional capacity’ to consider all factors relevant” to recognizing actionable torts under the ATS. It would be surprising (and, I suspect, distressing) to the Congress that enacted the ATS to learn that federal courts lack institutional capacity to do the very thing the ATS presumes they will do. JUSTICE THOMAS’ pessimism aside, there is no reason to doubt federal courts’ ability to identify those norms of international law that are sufficiently “‘specific, universal, and obligatory’” to give rise to a cause of action under the ATS. … Finally, pointing to the Trafficking Victims Protection Reauthorization Act (TVPRA), JUSTICE THOMAS argues that Congress’ decision to impose criminal and civil liability on human traffickers indicates that “Congress might doubt” the wisdom of recognizing a cause of action for torts other than the violation of safe conducts, infringement of the rights of ambassadors, and piracy. It is hard to understand why that would be true. That Congress has chosen to legislate against certain abhorrent conduct does not make that conduct any less tortious under international law. Dissent (Alito): The primary question presented in the two certiorari petitions filed in these cases is whether domestic corporations are immune from liability under the Alien Tort Statute (ATS), 28 U. S. C. §1350. I would decide that question, and for the reasons explained in Part I of JUSTICE GORSUCH’s opinion, which I join, I would hold that if a particular claim may be brought under the ATS against a natural person who is a United States citizen, a similar claim may be brought against a domestic corporation. Corporate status does not justify special immunity. The Court instead disposes of these cases by holding that respondents’ complaint seeks extraterritorial application of the ATS, but in my view, we should not decide that question at this juncture. It is tied to the question whether the plaintiffs should be allowed to amend their complaint, and in order to reach the question of extraterritoriality, the Court must assume the answers to a host of important questions. Specifically, the Court must assume: (1) that, contrary to the arguments set out in Part III of JUSTICE THOMAS’s opinion and Part II of JUSTICE GORSUCH’s opinion, it is proper for us to recognize new claims that may be asserted under the ATS; (2) that the conduct petitioners are alleged to have aided and abetted provides the basis for such a claim; (3) that there is a “specific, universal, and obligatory” international law norm, that imposes liability for what our legal system terms aiding and abetting; (4) that, if there is such a norm, we should choose to recognize an ATS aiding-and-abetting claim; and (5) that respondents’ complaint adequately alleges all the elements of such a claim, including the requisite mens rea….A decision begins to take on the flavor of an advisory opinion when it is necessary to make so many important assumptions in order to reach the question that is actually resolved. To be sure, Part III of JUSTICE THOMAS’s opinion and Part II of JUSTICE GORSUCH’s opinion make strong arguments that federal courts should never recognize new claims under the ATS. But this issue was not raised by petitioners’ counsel, and I would not reach it here. For these reasons, I would reject petitioners’ argument on the question of corporate immunity, vacate the judgment below, and remand these cases for further proceedings in the District Court.
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Jun 17, 2021 20:16
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The hope in me is that Roberts uses this as a do over because he has to see the writing on the wall of what he did by gutting the VRA. I will be prepared to be wrong and have my hope prove me foolish.
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Jun 17, 2021 21:20
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Wait so am I reading correctly that the only justice to say "hey it's kinda hosed that you can just get away with slavery if you're a corporation and do it overseas" is... Alito? 
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Jun 17, 2021 21:25
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The Nestle comes across as "well the slavery was overseas so go sue there and not here where the culprits live and plotted the activity" to wash their hands of it since ruling against Nestle would open the floodgates to lawsuits over the actions of Coke and others who plot evil poo poo here and carry it out across the globe.Bizarro Kanyon posted:The hope in me is that Roberts uses this as a do over because he has to see the writing on the wall of what he did by gutting the VRA. Roberts has a longstanding goal of rolling back the VRA in its entirety. He knew exactly what he was doing when he gutted the VRA and it has paid off for Republicans ever since.
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Jun 17, 2021 21:29
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Sydin posted:Wait so am I reading correctly that the only justice to say "hey it's kinda hosed that you can just get away with slavery if you're a corporation and do it overseas" is... Alito? Lol no. Alito thinks that child slavery isn’t a recognized cause of action under the ATS *regardless* of whether a corporation or natural person is the one doing the enslaving. He just thinks it should have been remanded to the district court so they could say that first.
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Jun 17, 2021 21:55
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Opinions! 3 of 3 for June 17, which has just page after page of opinions. Finally caught up. CALIFORNIA ET AL. v. TEXAS ET AL. TLDR: Texas, 17 other states, and 2 random individuals can’t sue to strike down the ACA because they aren’t harmed by the ACA. Holding / Majority Opinion (Breyer) As originally enacted in 2010, the Patient Protection and Affordable Care Act required most Americans to obtain minimum essential health insurance coverage. The Act also imposed a monetary penalty, scaled according to income, upon individuals who failed to do so. In 2017, Congress effectively nullified the penalty by setting its amount at $0. Texas and 17 other States brought this lawsuit against the United States and federal officials. They were later joined by two individuals (Neill Hurley and John Nantz). The plaintiffs claim that without the penalty the Act’s minimum essential coverage requirement is unconstitutional. Specifically, they say neither the Commerce Clause nor the Tax Clause (nor any other enumerated power) grants Congress the power to enact it. They also argue that the minimum essential coverage requirement is not severable from the rest of the Act. Hence, they believe the Act as a whole is invalid. We do not reach these questions of the Act’s validity, however, for Texas and the other plaintiffs in this suit lack the standing necessary to raise them. … Before Congress amended the Act [to set the minimum essential coverage tax penalty at $0], the Internal Revenue Service (IRS) had implemented §5000A(b) by requiring individual taxpayers to report with their federal income tax return whether they carried minimum essential coverage (or could claim an exemption). After Congress amended the Act, the IRS made clear that the statute no longer requires taxpayers to report whether they do, or do not, maintain that coverage. In 2018, Texas and more than a dozen other States (state plaintiffs) brought this lawsuit against the Secretary of Health and Human Services and the Commissioner of Internal Revenue, among others. They sought a declaration that §5000A(a)’s minimum essential coverage provision is unconstitutional, a finding that the rest of the Act is not severable from §5000A(a), and an injunction against the rest of the Act’s enforcement. Hurley and Nantz (individual plaintiffs) soon joined them. Although nominally defendants to the suit, the United States took the side of the plaintiffs. Therefore California, along with 15 other States and the District of Columbia (state intervenors), intervened in order to defend the Act’s constitutionality, as did the U. S. House of Representatives at the appellate stage. … We proceed no further than standing. The Constitution gives federal courts the power to adjudicate only genuine “Cases” and “Controversies.” That power includes the requirement that litigants have standing. A plaintiff has standing only if he can “allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Neither the individual nor the state plaintiffs have shown that the injury they will suffer or have suffered is “fairly traceable” to the “allegedly unlawful conduct” of which they complain. We begin with the two individual plaintiffs. They claim a particularized individual harm in the form of payments they have made and will make each month to carry the minimum essential coverage that §5000A(a) requires. The individual plaintiffs point to the statutory language, which, they say, commands them to buy health insurance. But even if we assume that this pocketbook injury satisfies the injury element of Article III standing, the plaintiffs nevertheless fail to satisfy the traceability requirement. Their problem lies in the fact that the statutory provision, while it tells them to obtain that coverage, has no means of enforcement. With the penalty zeroed out, the IRS can no longer seek a penalty from those who fail to comply. Because of this, there is no possible Government action that is causally connected to the plaintiffs’ injury—the costs of purchasing health insurance. Or to put the matter conversely, that injury is not “fairly traceable” to any “allegedly unlawful conduct” of which the plaintiffs complain. They have not pointed to any way in which the defendants, the Commissioner of Internal Revenue and the Secretary of Health and Human Services, will act to enforce §5000A(a). They have not shown how any other federal employees could do so either. In a word, they have not shown that any kind of Government action or conduct has caused or will cause the injury they attribute to §5000A(a). The plaintiffs point to cases concerning the Act that they believe support their standing. But all of those cases concerned the Act when the provision was indisputably enforceable, because the penalty provision was still in effect. These cases therefore tell us nothing about how the statute is enforced, or could be enforced, today. … The matter is not simply technical. To find standing here to attack an unenforceable statutory provision would allow a federal court to issue what would amount to “an advisory opinion without the possibility of any judicial relief.” It would threaten to grant unelected judges a general authority to conduct oversight of decisions of the elected branches of Government. Article III guards against federal courts assuming this kind of jurisdiction. … Next, we turn to the state plaintiffs. We conclude that Texas and the other state plaintiffs have similarly failed to show that they have alleged an “injury fairly traceable to the defendant’s allegedly unlawful conduct.” They claim two kinds of pocketbook injuries. First, they allege an indirect injury in the form of the increased use of (and therefore cost to) state-operated medical insurance programs. Second, they claim a direct injury resulting from a variety of increased administrative and related expenses required, they say, by the minimum essential coverage provision, along with other provisions of the Act that, they add, are inextricably “‘interwoven’” with it. First, the state plaintiffs claim that the minimum essential coverage provision has led state residents subject to it to enroll in state-operated or state-sponsored insurance programs such as Medicaid, the Children’s Health Insurance Program (CHIP), and health insurance programs for state employees. The state plaintiffs say they must pay a share of the costs of serving those new enrollees. As with the individual plaintiffs, the States also have failed to show how this injury is directly traceable to any actual or possible unlawful Government conduct in enforcing §5000A(a). That alone is enough to show that they, like the individual plaintiffs, lack Article III standing. But setting aside that pure issue of law, we need only examine the initial factual premise of their claim to uncover another fatal weakness: The state plaintiffs have failed to show that the challenged minimum essential coverage provision, without any prospect of penalty, will harm them by leading more individuals to enroll in these programs. We have said that, where a causal relation between injury and challenged action depends upon the decision of an independent third party (here an individual’s decision to enroll in, say, Medicaid), “standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish” To satisfy that burden, the plaintiff must show at the least “that third parties will likely react in predictable ways.” And, “at the summary judgment stage, such a party can no longer rest on . . . mere allegations, but must set forth . . . specific facts” that adequately support their contention. The state plaintiffs have not done so. … Unsurprisingly, the States have not demonstrated that an unenforceable mandate will cause their residents to enroll in valuable benefits programs that they would otherwise forgo. It would require far stronger evidence than the States have offered here to support their counterintuitive theory of standing, which rests on a “highly attenuated chain of possibilities.” ... The state plaintiffs add that §5000A(a)’s minimum essential coverage provision also causes them to incur additional costs directly. They point to the costs of providing beneficiaries of state health plans with information about their health insurance coverage, as well as the cost of furnishing the IRS with that related information. The problem with these claims, however, is that other provisions of Act, not the minimum essential coverage provision, impose these other requirements. Nothing in the text of these form provisions suggests that they would not operate without §5000A(a). To show that the minimum essential coverage requirement is unconstitutional would not show that enforcement of any of these other provisions violates the Constitution. The state plaintiffs do not claim the contrary. The Government’s conduct in question is therefore not “fairly traceable” to enforcement of the “allegedly unlawful” provision of which the plaintiffs complain—§5000A(a). … For these reasons, we conclude that the plaintiffs in this suit failed to show a concrete, particularized injury fairly traceable to the defendants’ conduct in enforcing the specific statutory provision they attack as unconstitutional. They have failed to show that they have standing to attack as unconstitutional the Act’s minimum essential coverage provision. Therefore, we reverse the Fifth Circuit’s judgment in respect to standing, vacate the judgment, and remand the case with instructions to dismiss. It is so ordered. Lineup: Breyer, joined by Roberts, Thomas, Sotomayor, Kagan, Kavanaugh, and Barrett. Concurrence by Thomas. Dissent by Alito, joined by Gorsuch. Concurrence: (Thomas): There is much to commend JUSTICE ALITO’s account of “our epic Affordable Care Act trilogy.” This Court has gone to great lengths to rescue the Act from its own text. So have the Act’s defenders, who argued in first instance that the individual coverage mandate is the Act’s linchpin, yet now, in an about-face, contend that it is just a throwaway sentence. But, whatever the Act’s dubious history in this Court, we must assess the current suit on its own terms. And, here, there is a fundamental problem with the arguments advanced by the plaintiffs in attacking the Act—they have not identified any unlawful action that has injured them. Today’s result is thus not the consequence of the Court once again rescuing the Act, but rather of us adjudicating the particular claims the plaintiffs chose to bring. This Court first encountered the Act in 2011. That case involved the constitutionality of the Act’s individual coverage mandate. Despite correctly recognizing that Congress’ enumerated powers did not allow it to impose such a mandate, the Court nonetheless upheld it by characterizing the “financial penalty” imposed on those who failed to comply with the mandate as a “tax.” That curious approach left us with no need to address a subsidiary question on which we had also granted review: whether the Act was inseverable from the mandate and thus would need to fall if the mandate were unconstitutional. The parties challenging the law argued “yes.” And the Government agreed in part. … This Court also embraced that view [that the mandate was inseverable] when we reencountered the Act in 2015. Saving the Act again through a feat of linguistic ingenuity— this time by redefining “State” to mean “‘State or the Federal Government,’”—the Court explained that “Congress [had] found that the guaranteed issue and community rating requirements would not work without the [mandate]”. But times have changed. In this suit, the plaintiffs assert that the mandate is unconstitutional because it no longer imposes financial consequences and thus cannot be justified as a tax. And given that the mandate is unconstitutional, other portions of the Act that actually harm the plaintiffs must fall with it. In response to this theory, the current administration contends that the mandate can be severed from the rest of the Act. The Act’s other defenders agree. In other words, those who would preserve the Act must reverse course and argue that the mandate has transformed from the cornerstone of the law into a standalone provision. … On all of this JUSTICE ALITO and I agree. Where we part ways is on the relief to which the plaintiffs are entitled. The Constitution gives this Court only the power to resolve “Cases” or “Controversies.” As everyone agrees, we have interpreted this language to require a plaintiff to present an injury that is traceable to a particular “unlawful” action. And in light of the specific theories and arguments advanced in this suit, I do not believe that the plaintiffs have carried this burden. As the majority explains in detail, the individual plaintiffs allege only harm caused by the bare existence of an unlawful statute that does not impose any obligations or consequences. That is not enough. The state plaintiffs’ arguments fail for similar reasons. Although they claim harms flowing from enforcement of certain parts of the Act, they attack only the lawfulness of a different provision. None of these theories trace a clear connection between an injury and unlawful conduct. ... The plaintiffs failed to demonstrate that the harm they suffered is traceable to unlawful conduct. Although this Court has erred twice before in cases involving the Affordable Care Act, it does not err today. Dissent: (Alito, joined by Gorsuch): 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. In the opening installment, National Federation of Independent Business v. Sebelius, 567 U. S. 519 (2012) (NFIB), the Court saved the so-called “individual mandate,” the same critical provision at issue in today’s suit. At that time, the individual mandate imposed a “penalty” on most Americans who refused to purchase health insurance or enroll in Medicaid, and it was widely thought that without the mandate much of the Act— and perhaps even the whole scheme—would collapse. The Government’s principal defense of the mandate was that it represented a lawful exercise of Congress’s power to regulate interstate commerce, but the Court rejected that unprecedented argument.. That might have foretold doom, but then, in a stunning turn of events, the threat to the ACA was defused when the “penalty” for failing to comply with the mandate was found to be a “tax” and thus to be justified as an exercise of Congress’s taxing power. By a vote of 5 to 4, the individual mandate—and with it the rest of the ACA—lived on. In the next installment, King v. Burwell, 576 U. S. 473 (2015), the Court carried out an equally impressive rescue. One of the Act’s key provisions provided subsidies to persons purchasing insurance through exchanges established by a “State.” When many States refused to establish such exchanges, the Federal Government did so instead. But the critical subsidies were seemingly unavailable on those exchanges, which had not been established by a “State” in any conventional sense of the term. Once again, some feared that the Act was in mortal danger, but the Court came to the rescue by finding that the Federal Government is a “State.” Now, in the trilogy’s third episode, the Court is presented with the daunting problem of a “tax” that does not tax. Can the taxing power, which saved the day in the first episode, sustain such a curious creature? In 2017, Congress reduced the “tax” imposed on Americans who failed to abide by the individual mandate to $0. With that move, the slender reed that supported the decision in NFIB was seemingly cut down, but once again the Court has found a way to protect the ACA. Instead of defending the constitutionality of the individual mandate, the Court simply ducks the issue and holds that none of the Act’s challengers, including the 18 States that think the Act saddles them with huge financial costs, is entitled to sue. Can this be correct? The ACA imposes many burdensome obligations on States in their capacity as employers, and the 18 States in question collectively have more than a million employees. Even $1 in harm is enough to support standing. Yet no State has standing? … We may consider the merits of this appeal if even one plaintiff has standing, but the majority concludes that no plaintiff—neither the States that originally brought suit nor the individual plaintiffs who later joined them—has standing under Article III of the Constitution. That is a remarkable holding. While the individual plaintiffs’ claim to standing raises a novel question, the States have standing for reasons that are straightforward and meritorious. The Court’s contrary holding is based on a fundamental distortion of our standing jurisprudence. The governing rules are well-settled. To establish Article III standing, a plaintiff must show: (1) “an injury in fact”; (2) that this injury “is fairly traceable to the challenged conduct of the defendant”; and (3) that the injury “is likely to be redressed by a favorable judicial decision.” In the present suit, there is no material dispute that the States have satisfied two of these requirements. First, there is no question that the States have demonstrated an injury in fact. An injury in fact is “an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” A financial or so-called “pocketbook” injury constitutes injury in fact, and even a small pocketbook injury— like the loss of $1—is enough. Here, the States have offered plenty of evidence that they incur substantial expenses in order to comply with obligations imposed by the ACA. There is likewise no material dispute that these financial injuries could be redressed by a favorable judgment. The District Court declared the entire ACA unenforceable, and that judgment, if sustained, would spare the States from the costs of complying with the ACA’s provisions. So too would a more modest judgment limited to only those ACA provisions that directly burden the States. The standing dispute in this suit thus turns on traceability. But once this requirement is properly understood, it is apparent that it too is met. Our cases explain that traceability requires “a causal connection between the injury and the conduct complained of.” In other words, the injury has to be “‘fairly . . . trace[able] to the challenged action of the defendant.’” … The States have clearly shown that they suffer concrete and particularized financial injuries that are traceable to conduct of the Federal Government. The ACA saddles them with expensive and burdensome obligations, and those obligations are enforced by the Federal Government. That is sufficient to establish standing. As the Court observed in Lujan, when a party is “an object of the action . . . at issue,” “there is ordinarily little question that the action . . . has caused [that party] injury”—i.e., that the injury is traceable to that action—“and that a judgment preventing . . . the action will redress it.” That is precisely the situation here. The state plaintiffs have shown that they are the object of potential federal enforcement actions if they do not comply with costly and burdensome obligations that the ACA imposes. The Court’s primary argument rests on a patent distortion of the traceability prong of our established test for standing. Partially quoting a line in Allen, the Court demands a showing that the “Government’s conduct in question is . . .‘fairly traceable’ to enforcement of the ‘allegedly unlawful’ provision of which the plaintiffs complain— §5000A(a).” This is a flat-out misstatement of the law and what the Court wrote in Allen. What Allen actually requires is a “personal injury fairly traceable to the defendant’s allegedly unlawful conduct”. And what this statement means is that the plaintiff ’s “injury” must be traceable to the defendant’s conduct, and that conduct must be “allegedly unlawful.” “Allegedly unlawful” means that the plaintiff must allege that the conduct is unlawful. (The States allege that the challenged enforcement actions are unlawful using a traditional legal argument, see infra, at 15–20.) But a plaintiff ’s standing (and thus the court’s Article III jurisdiction) does not require a demonstration that the defendant’s conduct is in fact unlawful. That is a merits issue. If Article III standing required a showing that the plaintiff ’s alleged injury is traceable to (i.e., in some way caused by) an unconstitutional provision, then whenever a claim of unconstitutionality was ultimately held to lack legal merit—even after a full trial—the consequence would be that the court lacked jurisdiction to entertain the suit in the first place. That would be absurd, and this Court has long resisted efforts to transform ordinary merits questions into threshold jurisdictional questions by jamming them into the standing inquiry. … The Court says that the States cannot establish standing unless they show that their injuries are traceable to the individual mandate, and the States claim that their injuries are indeed traceable to the mandate. Their argument proceeds in two steps. First, they contend that the individual mandate is unconstitutional because it does not fall within any power granted to Congress by the Constitution. Second, they argue that costly obligations imposed on them by other provisions of the ACA cannot be severed from the mandate. If both steps of the States’ argument that the challenged enforcement actions are unlawful are correct, it follows that the Government cannot lawfully enforce those obligations against the States. There can be no question that this argument is conceptually sound. Imagine Statute ABC. Provision A imposes enforceable legal obligations on the plaintiff. Provision B imposes a legal obligation on a different party. And provision C provides that a party is not obligated to comply with provision A if provision B is held to be unconstitutional. Based on the plain text of this law, a party subject to provision A should be able to obtain relief from the enforcement of provision A if it can show that provision B is unconstitutional. To hold otherwise would be directly contrary to the statutory text. But the Court’s reasoning would make such a claim impossible. The plaintiff would be thrown out of court at the outset of the case for lack of standing. That cannot be right. And if the Court really means to foreclose all such claims from now on, that is a big change because we have repeatedly heard such arguments and evaluated them on the merits. … The Court has no real response to the arguments set out above, so it falls back on the claim that the States forfeited those arguments because they (1) did not “directly” argue them in the courts below, (2) did not present them at the certiorari stage, and (3) did not raise them in this Court. JUSTICE THOMAS makes a forfeiture argument expressly. There is nothing to any of these arguments. … Consider the States’ standing to seek relief from the IRS reporting obligations. The States identified these costs in their complaint; offered extensive evidence of these costs on summary judgment; and argued that these provisions cannot be severed from the individual mandate...In this Court, the States argued that they have standing based on these reporting obligations in their brief opposing the petition filed by California and the other parties that intervened to defend the ACA, and in their merits brief. They specifically identified the consequences of noncompliance to which these injuries are traceable. And they argued that these obligations are not enforceable because they are inseverable from the individual mandate. For these reasons, it is clear that the States did not forfeit the arguments discussed in this dissent. I would hold that the States have demonstrated standing to seek relief from the ACA provisions that burden them and that they claim are inseparable from the individual mandate. Because the state plaintiffs have standing, I proceed to consider the merits of this lawsuit. That requires assessing whether the individual mandate is unlawful and whether it is inseverable from the provisions that burden the States. … When the constitutionality of the individual mandate was first challenged in NFIB, the Government’s primary defense was that it represented a valid exercise of Congress’s power to regulate interstate commerce, but a majority of the Court squarely rejected that argument. Likewise, a majority of the Court rejected the Government’s resort to the Necessary and Proper Clause. I agreed with those holdings at the time, and that is still my view. The mandate cannot be sustained under the Commerce Clause or the Necessary and Proper Clause, and in this suit, no party urges us to uphold it on those grounds. While the NFIB Court rejected the Government’s Commerce Clause argument, a majority held that the mandate represented a lawful exercise of Congress’s taxing power, and the House and state intervenors now argue that the mandate can still be sustained on this ground despite the fact that the “tax” it supposedly imposes is now set at zero. In NFIB, I did not see how the mandate’s penalty could be understood as a tax, but assuming for the sake of argument that the majority’s understanding was correct at the time, it is now indefensible. … it is no longer defensible to argue that the individual mandate can be construed as a lawful exercise of Congress’s taxing power, for as it now stands, the mandate will never “produc[e] at least some revenue for the Government.” The penalty for noncompliance is set at 0% and $0. It cannot raise a cent. … I conclude that the individual mandate exceeds the scope of Congress’s enumerated legislative powers. This brings me to the next question: whether the state plaintiffs have shown that the provisions of the ACA imposing burdens on them are inseparable from the unconstitutional individual mandate. I conclude that those provisions are inextricably linked to the individual mandate and that the States have therefore demonstrated on the merits that those other provisions cannot be enforced against them. Accordingly, the States are entitled to a judgment providing that they are not obligated to comply with the ACA provisions that burden them. All the opinions in NFIB acknowledged the central role of the individual mandate’s tax or penalty. In NFIB, the Government agreed that the individual mandate was inextricably related to those crucial provisions. And so did Justice Ginsburg’s opinion...the joint dissent, after finding that the individual mandate and Medicaid expansion provision were unconstitutional, concluded that other provisions of the ACA could not be enforced. … Nothing that has happened since that decision calls for a different conclusion now. It is certainly true that the repeal of the tax or penalty has not caused the collapse of the entire ACA apparatus, but the critical question under the framework applied in the NFIB dissent is not whether the ACA could operate in some way without the individual mandate but whether it could operate in anything like the manner Congress designed. The answer to that question is clear. When the tax or penalty was collected, costs were shifted from individuals previously denied coverage due to their medical conditions and placed on others who purchased insurance only because the failure to do so was taxed or penalized. ... Having determined that the individual mandate is (1) unlawful and (2) inseverable from the provisions burdening the state plaintiffs, the final question is what to do about it. The answer largely flows from everything I have already said above. Relief in a case runs against parties, not against statutes. And provisions that are inseverable from unconstitutional features of a statute cannot be enforced. No matter how one approaches the question, then, the answer is clear: Because the mandate is unlawful and because the injury-causing provisions are inextricably linked to the mandate, the federal defendants cannot enforce those provisions against the state plaintiffs. And the state plaintiffs are entitled to a judgment providing as much. … No one can fail to be impressed by the lengths to which this Court has been willing to go to defend the ACA against all threats. A penalty is a tax. The United States is a State. And 18 States who bear costly burdens under the ACA cannot even get a foot in the door to raise a constitutional challenge. So a tax that does not tax is allowed to stand and support one of the biggest Government programs in our Nation’s history. Fans of judicial inventiveness will applaud once again. But I must respectfully dissent. https://www.supremecourt.gov/opinions/20pdf/19-840_6jfm.pdf
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Jun 17, 2021 22:14
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The Something Awful Forums > Discussion > Debate & Discussion > SCOTUS 2021: There is much to commend JUSTICE ALITO’s account of “our epic Affordable Care Act trilogy."Kalman posted:Lol no. Alito thinks that child slavery isn’t a recognized cause of action under the ATS *regardless* of whether a corporation or natural person is the one doing the enslaving. Makes much more sense. I admit I'm at work and only really have time to skim these.
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Jun 17, 2021 22:30
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It's kinda funny seeing Alito complain that the majority won't just kill the ACA (and Thomas agreeing in part) after the GOP's various attempts to do so. Other than right wing politicians and the gullible people who listen to them, who actually wants the ACA struck down at this point? Businesses either don't care or benefit from it, millions of people only have insurance because of the protections, and even people who want something better know that that isn't just going to happen the day (or year) after the SCOTUS strikes it down. Like Roberts knows full well if they actually kill the ACA there's a high chance that the GOP will get punished for it in the next election season since the ACA is broadly popular and a whole lot of Republicans would lose coverage and be real pissed about it, possibly pissed enough to blame the party whose justices just took away their healthcare.
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Jun 17, 2021 22:53
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Alito? More like Malito.
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Jun 17, 2021 23:18
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So, another step toward Christian Dominionistic Theocracy? Yaaaaaaaaaaaaaaaaaaaaay. Can someone start the Church Of Abortion already so every red state is compelled by these lovely precedents to keep Roe alive even after these loving scumbags overturn it?
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Jun 17, 2021 23:50
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My brain broke while reading the Nestlé opinion. It's the most inane, rules-lawyering balderdash I've ever read in my life. Who cares if the child labour itself occurs overseas? If the purchasing of the labour is planned and executed in the United States, that should be grounds for those who purchase it to be held liable in the United States. What kind of heartless monster would argue otherwise? The LGBT adoption case is also really bad, but at least I understand the legal grounds for it. The Nestlé case is complete nonsense.
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Jun 18, 2021 00:02
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JordanKai posted:It's the most inane, rules-lawyering balderdash I've ever read in my life. Buddy it's literally lawyering. It's the Supreme Court of the United States. You don't get more rules-lawyering.
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Jun 18, 2021 00:09
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Discendo Vox posted:Buddy it's literally lawyering. It's the Supreme Court of the United States. You don't get more rules-lawyering. Haha, I know. I felt a bit weird about using the phrase because I was talking about literal lawyering. But I don't know a better phrase for this kind of puffy obfuscation that is meant to bend the law to opinion instead of the other way around. 
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Jun 18, 2021 00:16
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JordanKai posted:Haha, I know. I felt a bit weird about using the phrase because I was talking about literal lawyering. But I don't know a better phrase for this kind of puffy obfuscation that is meant to bend the law to opinion instead of the other way around. It was 8-1, and the only reason it wasn't unanimous is because Alito wanted to go even farther. You don't find both sides supporting a ruling unless the law in question actually is clear and unambiguous.
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Jun 18, 2021 00:41
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JordanKai posted:My brain broke while reading the Nestlé opinion. It's the most inane, rules-lawyering balderdash I've ever read in my life. Who cares if the child labour itself occurs overseas? If the purchasing of the labour is planned and executed in the United States, that should be grounds for those who purchase it to be held liable in the United States. What kind of heartless monster would argue otherwise?
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Jun 18, 2021 00:44
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JordanKai posted:Haha, I know. I felt a bit weird about using the phrase because I was talking about literal lawyering. But I don't know a better phrase for this kind of puffy obfuscation that is meant to bend the law to opinion instead of the other way around. obscurantism, or motivated reasoning, seem to fit what you're looking for (though not necessarily in this case as Fuschia points out)
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Jun 18, 2021 01:22
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Fuschia tude posted:It was 8-1, and the only reason it wasn't unanimous is because Alito wanted to go even farther. You don't find both sides supporting a ruling unless the law in question actually is clear and unambiguous. That's my impression, although I'm not exactly an international labor and human rights lawyer. Law bad, law constitutional, law clear. Sotomayor isn't going to go to bat for a law that allows corps to plot child slavery if she has any excuse at all.
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Jun 18, 2021 01:36
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the decision on the LGBTQ adoption is Real Bad, incidentally the decision itself is virtually meaningless, but there are five solid votes for "you can claim a religious exemption to any law, at all, under the first amendment" its just they decided not to do it here because they hadn't gotten around to figuring out exactly how to say "as long as you're Christian" yet
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Jun 18, 2021 01:45
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evilweasel posted:the decision on the LGBTQ adoption is Real Bad, incidentally This is going to be the eventual route they take to rule that the CRA is unconstitutional since it doesn't let (white) people discriminate and be racist like Republican Jesus demands.
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Jun 18, 2021 02:37
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It would be really nice if we could get some non-Christians on SCOTUS. Nine people who are all some flavor of Christian constantly going "actually Christian churches can do anything they want under the first amendment, including just flat out ignoring non-discrimination laws" seems kinda like a conflict of interest! gently caress Sotomayor and Kagan just happily jumped on to Roberts' opinion stating as such without even bothering to put out a weak rear end concurrence.
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Jun 18, 2021 02:44
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I agree that the court might benefit from a broader religious perspective, but I would not describe the two Jewish justices as “some flavor of Christian”.
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Jun 18, 2021 02:50
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Bleh yeah I meant Judeo-Christian, sorry I've had a couple since work ended.
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Jun 18, 2021 03:03
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Sydin posted:Bleh yeah I meant Judeo-Christian, sorry I've had a couple since work ended. Just to be clear, Judeo-Christian has never meant anything besides "Christians but we want to claim it isn't only Christians"
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Jun 18, 2021 05:05
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evilweasel posted:the decision itself is virtually meaningless, but there are five solid votes for "you can claim a religious exemption to any law, at all, under the first amendment" its just they decided not to do it here because they hadn't gotten around to figuring out exactly how to say "as long as you're Christian" yet Honestly, being reminded that Smith was a drug war overreaction to gently caress over Native Americans did a lot to make me question whether or not it was correctly decided. ...but yeah, SCOTUS clearly recognizes the Church of Satan is a thing, somewhere in the back of their minds...
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Jun 18, 2021 05:09
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Sydin posted:It would be really nice if we could get some non-Christians on SCOTUS. Nine people who are all some flavor of Christian constantly going "actually Christian churches can do anything they want under the first amendment, including just flat out ignoring non-discrimination laws" seems kinda like a conflict of interest! gently caress Sotomayor and Kagan just happily jumped on to Roberts' opinion stating as such without even bothering to put out a weak rear end concurrence. The take I heard is that the 3 liberal justices joined Roberts' opinion as an attempt to keep Alito's far worse interpretation from setting the precedent.
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Jun 18, 2021 06:09
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What I don't understand is how that insane "sole discretion" provision ended up in the law to begin with. Basically "We're banning discrimination against gay people, except when we decide to allow it because we feel like it." Am I missing something here?
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Jun 18, 2021 15:02
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5-4 had on the Stanford student who made the satirical Federalist Society Hawley-hosted Originalist Case for Insurrection invite and what the FedSoc students did was even worse than had been reported. They looked into how they could make a complaint back in March and then waited until May to gently caress him over maximally. He also said that they would've done that knowing they wouldn't have to provide any testimony since they'd have graduated (normally they would have to) and he'd be stuck defending himself. The body they whined to usually handles honor code violations like plagiarism and isn't connected to the law school itself. Only bad part of the episode is they didn't bring up that the Federalist Society hosted John Yoo in May which is beyond parody.
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Jun 18, 2021 15:19
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Silver2195 posted:What I don't understand is how that insane "sole discretion" provision ended up in the law to begin with. Basically "We're banning discrimination against gay people, except when we decide to allow it because we feel like it." Am I missing something here? I think the city wanted the option to let the catholic charities discriminate when they wrote the law and then changed their mind later. You’re not missing anything really.
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Jun 18, 2021 15:45
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