USSC decisions

Cont.
The plaintiffs made an argument that was very likely to convince conservative judges
The moratorium arose out of an August 2020 executive order by then-President Donald Trump, which instructed the federal government to “consider whether any measures temporarily halting residential evictions of any tenants for failure to pay rent are reasonably necessary to prevent the further spread of COVID-19 from one State or possession into any other State or possession.”

A few weeks after this executive order was issued, the Centers for Disease Control and Prevention issued a temporary moratorium on evictions that was originally slated to expire at the end of 2020 — it’s been extended several times since then, both by the CDC and by Congress.

As legal justification for issuing such a moratorium, the CDC pointed to a federal law, which permits the agency to “make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.”

It’s a fairly sweeping delegation of power to a federal agency, and one that seemed designed to incite conservative judges — including a majority of the justices on the Supreme Court — who have indicated that they want to shrink Congress’s ability to delegate regulatory power to agencies, and also that existing statutes giving power to agencies should be read narrowly.

Under existing law, there are strong legal arguments that the CDC acted within its authority when it issued the moratorium. As the Supreme Court explained in Mistretta v. United States (1989), Congress has broad authority to delegate regulatory power to federal agencies, and the Constitution permits such delegations of power so long as Congress lays down “by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.”

Thus, under Mistretta there was a strong argument that the CDC moratorium is legal. Congress delegated broad public health authority to a federal agency, but it did lay down an “intelligible principle” to guide the use of that authority. The CDC could only make regulations that it deems necessary to “prevent the introduction, transmission, or spread of communicable diseases.”

But at least five members of the current Supreme Court have previously signaled that they disagree with Mistretta and that they wish to place much stricter restrictions on Congress’s ability to delegate regulatory authority to federal agencies. Broad delegations of power, Justice Neil Gorsuch wrote in an influential dissenting opinion in 2019, are highly suspect. It’s more important to prevent federal agencies from having “unbounded policy choices” than it is to give them the flexibility to govern. Now, with a 6-3 conservative majority on the Court, that dissenting opinion is much more likely to guide a future decision.

And so, the landlords and realtors in Alabama Association of Realtors argued that the CDC’s moratorium raised “serious constitutional concerns” because of the “breathtaking scope” of the statute permitting the CDC to declare this moratorium. They also argued that the statute should be read narrowly in a way that would limit the CDC’s authority.

In short, they made a case that would appeal to the current Court.

The plaintiffs lost, despite five justices agreeing with their legal arguments
Four justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett — would have granted the Alabama Association of Realtors plaintiffs the relief they sought. Meanwhile, Kavanaugh wrote an unusual one-paragraph opinion explaining that he agreed with the plaintiffs that the CDC’s order is illegal, but that he was denying relief to them anyway.

The most likely reason for Kavanaugh’s unusual approach stems from the fact that this case arose on the Court’s “shadow docket,” a mix of emergency orders, responses to stay requests, and other decisions that are typically handed down without full briefing or oral argument.

Traditionally, the Supreme Court has been reluctant to hand down significant, precedent-setting cases on its shadow docket, because of the risk that it will release a sloppy or ill-considered opinion if it moves too quickly. As Justice Sonia Sotomayor warned in a 2020 opinion, shadow docket cases “force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument.”

But this Supreme Court has not always honored this tradition. Since Barrett joined the Court last fall, giving Republican appointees a 6-3 majority, the Court handed down a series of shadow docket opinions that revolutionized much of its religion jurisprudence — handing historic victories to the religious right in the process. Kavanaugh supported these sweeping decisions.

Nevertheless, in Alabama Association of Realtors, Kavanaugh appears to have decided to take a more modest approach. Although Kavanaugh agreed with a lower court which ruled that the CDC “exceeded its existing statutory authority by issuing a nationwide eviction moratorium,” he ultimately decided to let the moratorium expire on its own accord at the end of July.

He added that “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”

Thus, while Kavanaugh avoided the immediate disruption of halting the moratorium right away, he’s prepared to cast the fifth vote to strike down any future effort to extend the moratorium unless Congress acts.

 

The Robert court and Robert specifically have voted to strike down or weaken sections of the 1965 Voting Right Act.

In 2013, Robert said section 4 is unconstitutional because the standards are "based on decades-old data and eradicated practices". He not only didn't defer to Congress; he overruled the Senate unanimous vote (98-0) to extend the Voting Right Act in 2006. 2006 isn't a decade ago, it was just 7 years ago when he ruled against the section. He also ignored past precedent when the Court upheld section 4 and the Voting Rights Act over numerous challenges. This was a judicial judgment that some on the Right have called "legislating from the bench".

Congress and the Voting Rights Act of 1965 | National Archives

Because the Voting Rights Act of 1965 was the most significant statutory change in the relationship between the Federal and state governments in the area of voting since the Reconstruction era, it was immediately challenged in the courts. Between 1965 and 1969, the Supreme Court issued several key decisions upholding the constitutionality of the law [See South Carolina v. Katzenbach, 383 U.S. 301, 327-28 (1966) and Allen v. State Board of Elections, 393 U.S. 544 (1969)].​

With the recent judgment of the AZ voting suppression law, Section 2 has been weakened.

Supreme Court’s Voting Rights Act Decision Narrows Another Path to Challenge Discriminatory Voting Laws (aclu.org)

But it takes a sharp turn away from vindicating Section 2’s purpose and sends another signal to states that federal courts will not stop newly passed suppressive laws, except perhaps in the most egregious and shockingly discriminatory circumstances.​

Robert, when it comes to Voting Rights, do not defer to anyone. He is judging them and ruling against precedents and almost unanimous Congressional acts. So, when you said he defers, I didn't understand what you mean and who he defers to...

 

The Roberts court is showing deference to the states as they have in other rulings regarding voting including Shelby. In the opinion from Alito it says specifically that they don’t want to transfer more power over voting from the states to the Federal courts.

As stated again this doesn’t mean Congress can’t act and strengthen the act further. Also as noted in the links you provided the rulings haven’t completely invalidated Section 2.

 

This is why Biden and MSNBC can blather all they want about Black Lives Matter, economic inequality or whatever, but if they won't at least move to pack the Court and put the heat on these Aholes they are just not serious.

 

These type of threads always make me think of Lawrence Tribe, the noted Constitutional Scholar, who when asked to predict what the right wing court of a few years ago might do in the new term, said: "You would be better off looking at the last Republican Party Presidential Platform rather than the Federalist Papers or trying to analyze the intent of the Framers.

I find their rationalizations frustrating and ultimately boring.

 

Biden setup a commission with a 6 month deadline to give him credible backing for the reforms that are sure to be coming:

https://www.whitehouse.gov/briefing...on-on-the-supreme-court-of-the-united-states/

This EO was from April in his second month in office. Probably should have been sooner, but I think it's a smart move to have credible backing to the court changes rather than just looking like a counter puncher to Mitch McConnell and the Federalist Society.

But we have to see what Biden actually gets done with Schumer and ... of course... Sinema & Manchin who will of course try to wring their hands for attention before they sign off on changes to the filibuster even though McConnell already advocates and changes Senate rules for court appointees since it's in the Constitution.

So you make a good point of course, but important to understand what is actually happening before just throwing out criticism to Biden. If nothing happens and we are in October of 2022... yeah it's time to get pissed off majorly. Actually we should be raising hell and sending out activist groups coached up by Indivisible, etc. likely next Spring to get those changes passed before the end of next Summer when the deadlines will likely be for legislation to get passed.

 

sure to be coming?

 

Sure to be attempted. I cannot promise Manchin and Sinema are going to do anything, but I am certain that the first half of 2022 will be a central period of time for the Dems to attempt court reform. It's tabled now because Biden needs Infrastructure for 2022, and HR1/voting has a ticking time clock to get done this Summer before districts are drawn.

Of course it all revolves around the filibuster though so unless Manchin, and Sinema decide to actually do something then EVERYTHING will an "attempt" not "sure to be coming."

 

That's what she said.

 

This is obviously an overreach by the court. Why are they making foreign policy now? I agree that the program shouldn't have been ended but how are they supposed to reinstate this if Mexico doesn't comply? Are they going to hold the Biden administration in contempt? So many questions...

Supreme Court orders ‘Remain in Mexico’ policy reinstated

WASHINGTON (AP) — The Supreme Court on Tuesday said the Biden administration likely violated federal law in trying to end a Trump-era program that forces people to wait in Mexico while seeking asylum in the U.S.

With three liberal justices in dissent, the high court refused to block a lower court ruling ordering the administration to reinstate the program informally known as Remain in Mexico.

It’s not clear how many people will be affected and how quickly. Under the lower court ruling, the administration must make a “good faith effort” to restart the program.

There also is nothing preventing the administration from trying again to end the program, formally called Migrant Protection Protocols.

A federal judge in Texas had previously ordered that the program be reinstated last week. Both he and the 5th U.S. Circuit Court of Appeals refused the administration’s request to put the ruling on hold.

Justice Samuel Alito ordered a brief delay to allow the full court time to consider the administration’s appeal to keep the ruling on hold while the case continues to make its way through the courts.

The 5th Circuit ordered expedited consideration of the administration’s appeal.

The court offered little explanation for its action, although it cited its opinion from last year rejecting the Trump administration’s effort to end another immigration program, Deferred Action for Childhood Arrivals. In that case, the court held that the decision to end DACA was “arbitrary and capricious,” in violation of federal law.

The administration has “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious,” the court wrote Tuesday in an unsigned order.

The three dissenting justices, Stephen Breyer, Elena Kagan and Sonia Sotomayor, did not write an opinion expressing their views of the case.

In a statement, the Department of Homeland Security said it regrets that the high court declined to issue a stay. The department said it would continue to challenge the district court’s order.

The American Civil Liberties Union called on the administration to present a fuller rationale for ending Remain in Mexico that could withstand court scrutiny.

“The government must take all steps available to fully end this illegal program, including by re-terminating it with a fuller explanation. What it must not do is use this decision as cover for abandoning its commitment to restore a fair asylum system,” said Omar Jadwat, director of the ACLU’s immigrant rights project.

During Donald Trump’s presidency, the policy required tens of thousands of migrants seeking asylum in the U.S. to turn back to Mexico. It was meant to discourage asylum seekers but critics said it denied people the legal right to seek protection in the U.S. and forced them to wait in dangerous Mexican border cities.

The judge, U.S. District Judge Judge Matthew J. Kacsmaryk in Amarillo, Texas, ordered that the program be reinstated in response to a lawsuit filed by the states of Texas and Missouri, whose governors have been seeking to reinstate some of the hard-line anti-immigration policies of the Trump administration.

The Biden administration argued in briefs that the president has “clear authority to determine immigration policy” and that Homeland Security Secretary Alejandro Mayorkas had discretion in deciding whether to return asylum seekers to Mexico.

The policy has been dormant for more than a year and the administration argued that abruptly reinstating it “would prejudice the United States’ relations with vital regional partners, severely disrupt its operations at the southern border, and threaten to create a diplomatic and humanitarian crisis.”

The Trump administration largely stopped using the “Remain in Mexico” policy at the start of the pandemic, at which point it began turning back virtually everyone crossing the Southwest border under a different protocol — a public health order that remains in effect.

President Joe Biden suspended the program on his first day of office and the Homeland Security Department ended it in June.

Kacsmaryk was nominated to the federal bench by Trump. The 5th Circuit panel that ruled Thursday night included two Trump appointees, Andrew Oldham and Cory Wilson, along with Jennifer Walker Elrod, nominated to the appeals court by President George W. Bush.

At the high court, at least five of the six conservative justices, including three Trump appointees, voted for the restart of the program. Under the court’s opaque treatment of emergency appeals, the justices don’t always say publicly how they voted.

https://apnews.com/article/mexico-c...upreme-court-a3fe33081fa2909c17e8c08a2c37f818

 

I agree with this decision...the Biden admin knew it would get struck down and they'd just rather the Supreme Court take the heat.

U.S. Supreme Court ends CDC's pandemic residential eviction moratorium

REUTERS/Erin Scott

WASHINGTON, Aug 26 (Reuters) - The U.S. Supreme Court on Thursday ended the pandemic-related federal moratorium on residential evictions imposed by President Joe Biden's administration in a challenge to the policy brought by a coalition of landlords and real estate trade groups.

The justices, who in June had left in place a prior ban that expired at the end of July, granted a request by the challengers to lift the moratorium by the U.S. Centers for Disease Control and Prevention (CDC) that was to have run until Oct. 3.

Also read: White House calls for 'urgent' action to prevent evictions after Supreme Court decision

The challengers argued that the law on which the CDC relied did not allow it to implement the current ban.


"It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts," the court said in an unsigned opinion.

"If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it," the court added.

The three liberal justices on the court, which has a 6-3 conservative majority, all dissented.

The White House said it was disappointed by the decision and urged states, local governments, landlords and Cabinet agencies to "urgently act" to help prevent evictions. read more

The high court had signaled in June that it thought the moratorium was on shaky legal ground, and that such a policy needed to be enacted by Congress rather than being imposed unilaterally by the executive branch.

The CDC first issued a moratorium in September 2020 after a prior one approved by Congress expired, with agency officials saying the policy was needed to combat the spread of COVID-19 and prevent homelessness during the pandemic.

Under political pressure from Biden's fellow Democrats, his administration on Aug. 3 implemented a somewhat narrower eviction moratorium three days after the prior one expired.

Liberal Justice Stephen Breyer said in a dissenting opinion that the outcome of the case was not as clear cut as the majority suggested and that the court was not justified in ending the moratorium so quickly at a time when COVID-19 cases are surging.

"The public interest strongly favors respecting the CDC’s judgment at this moment, when over 90 percent of counties are experiencing high transmission rates," Breyer wrote.

Citing the CDC, he said that a surge of evictions could lead to more infections of the coronavirus.


The latest moratorium covered nearly 92% of U.S. counties - those deemed to have "substantial" and "high" levels of coronavirus transmission.

The policy was challenged in federal court by realtor associations in Alabama and Georgia as well as landlords in those two states.

Editing by Grant McCool and Jacqueline Wong

https://www.reuters.com/world/us/us...l-residential-eviction-moratorium-2021-08-27/

 

What’s next?

 

It's really hard to find this a good decision knowing that any politician with mistresses they had an unplanned pregnancy with, would just take them to the nearest state or country and get the procedure done in secret. It's not even a judgment against people who take that route. It's just that courtesy should be extended to everyone else too.

I'm more in the Pro-Life camp that believes if you focus specifically on improving the quality of life for people statistically most likely to get an abortion so much so that the idea of an unplanned pregnancy is viewed more as a blessing than a detriment, you would find a better non-punitive alternative solution lessening the number of abortions. I tend to also view being Pro-Life as more than just having the fetus reach term and be born, and instead extend being pro-life to having a quality of life that makes life worth living and meaningful across all human developmental stages, and once terminal, are given proper care, dignity and respect when transitioning to death.

That and properly funding and expanding sexual health clinics across areas that have the least amount of access to affordable contraceptive measures, but then again I believe Texas legislatures have focused over the years on lessening funding to entities like Planned Parenthood, who provide low cost effective contraceptives to their community.

 

Which is a shame to me because I also tend to think if you focused on areas hardest hit by crime and focus on improving quality of life in the most impoverished areas of America, you would find that a more pro-active and effective approach over strictly punitive measures alone. Imagine if billions were poured into investing and improving the quality of life of people stuck living in the most high crime areas of the U.S, and I'm not talking about investing billions in condo construction or any crap like that. Probably a safe expectation to still see crime, but probably not nearly as much to the same severity, and I'm confident the people stuck living in those areas would be grateful as well.