Average Joe SCOTUS: Garland v. Gonzalez

This case is basically the same as the previous case I covered, AVERAGE JOE SCOTUS: JOHNSON V. ARTEAGA-MARTINEZ. So I will try not to repeat myself too much. You have a couple Mexican citizens who decided they don’t believe in borders—we’re all just one planet, man.

Unlike Arteaga-Martinez, Esteban Aleman Gonzalez and Gutierrez Sanchez are not out on bail, but are still being detained.

So they’re like, “Mother fucker, we’ve been here for six months, and haven’t gotten a bond hearing. Know the law, man!”

Part of the reason they’re being held, like the previous case, is due to them claiming that we shouldn’t send them back, because they’ve got enemies in Mexico who’ll light ’em up if they’re sent back. Deporting someone is called a “removal” order. But as I mentioned in the other case, an illegal immigrant can apply for a “withholding of removal,” which is where the US will not deport them if they think the person will be persecuted or tortured by doing so. We’re kinda nice like that, as opposed to some shitholes.

Here’s the thing about “withholding of removal” claims; they take time to investigate and process. Apparently, much longer than the six months SCOTUS determined is a constitutional right such people have to have some decision made, so they can go on about their lives. Since it takes government way longer apparently to figure that shit out, the idea is that they should get a bond hearing within six months, so they can potentially be released into the wild, under supervision, while government determines if they can stay indefinitely, or if their claim is bullshit and they gotta go home.

The government isn’t keen on the idea of letting them go, which will potentially make it hard to find them once they are ready to process their “withholding of removal” claim—especially if they decide to give them a one-way ticket to their home country. So government is arguing that if congress had wanted such folks to be eligible for a bond hearing within a particular time, they’d have written as much into the law. They’ve written similar provisions before, so it’s not like those dumb fucks in congress don’t know how.

They refer to a particular segment of law that seems to be in dispute.

8 U.S.C. § 1252 (f) Limit on injunctive relief (1) In general

Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.

The relevance of the above is this, as I understand it. The lower courts were the ones who ordered the detainees to get bond hearings. But this statute clearly states that only SCOTUS has jurisdiction to make any orders regarding this, meaning the lower courts were out of line.

Justice Elena Kagan

Justice Elena Kagan, apparently in an attempt to set a record for the longest exchange in SCOTUS history, was REALLY latching on to what the fuck “enjoin” means. I thought about copying and pasting the whole here, but was certain it would break the internet.

But here’s the opening snippet if her exchange with counsel Curtis Gannon for the government:

Elena Kagan


So I’m just going to — I mean, of course, you’re right that if you look up the word “enjoin” in the dictionary, you can find something that suggests not “stop” but something like “order” or “require” or something like that. But I’m just looking at this phrase, “enjoin or restrain the operation of certain statutory provisions,” and let me — let me give you some examples about what the word “enjoin” would mean in similar phrases. The plaintiff seeks to enjoin enforcement of the law.

Does that mean stop?

Curtis E. Gannon

I — I think it’s hard to tell from that context whether it means that they seek to have the law —

Elena Kagan


In the statute above, you see the phrase “enjoin or restrain.” Well to her, it made sense that both were basically synonymous. So when he tried to argue otherwise, she comes back like an offended kindergartner with “Really?”

Counsel Curtis Gannon

If Kagan’s theory is true, then the statute is saying only SCOTUS can prevent them from doing their job, but lower courts can certainly still tell them to do their job. In her mind, it’s the only way to read that. But, apparently, Justice Kagan is woefully lacking an ounce of imagination.

In her mind, she can only imagine that congress was redundant in what they wrote?

Let’s look at Merriam Webster’s definition. There are two.

1-To direct or impose by authoritative order or with urgent admonition.
2-Forbid, Prohibit: to prohibit by a judicial order : put an injunction on

So, if you take the first definition, Justice Kagan is wrong. And also, it removes the redundancy of the two words being used that mean the same thing.

While I don’t doubt that Justice Kagan’s interpretation could be correct, her idea that the idiots in congress couldn’t have possibly meant the first meaning for “enjoin” is pretty fucking short-sighted. She’s lucky if congress even knows one fucking definition of enjoin.

Justice Breyer, ever the historian, decided to press counsel Gannon on what they fuck they’re thinking as to the idea that they don’t have to offer someone a bail hearing. As if somehow, this is the one time and one place, that a bail hearing isn’t required.

Justice Stephen Breyer

Well, I — I just wonder if you’re on the merits there.

This seemed to me to be simpler than you have been suggesting and was suggested.

It’s not really a statutory case, say, Zadvydas.

I mean, we’re talking about bail.

And the reason it becomes a statutory case is because the words of the statute are “may detain.” So you can read that word “may” to read in certain conditions that long have been constitutionally required in other cases. And the reason Demore is different and the reason Rodriguez is different is it didn’t use those words, which is just what the Court says.

“Shall be detained” are the words there. “Shall be taken into custody.” And so, of course, the majorities thought that made a difference, shall or may. So, here, we deal with “may.” Now that’s the statutory issue.

As far as the underlying issue, I mean, you know it as well as I do, everybody gets bail hearings that you’re going to detain for a significant amount of time, every criminal case. Debtors used to in debtor prison. Mental people being confined in hospitals have the equivalent.

Extradition people get the hearing.

I looked at every case we could find. I didn’t find any that said you don’t get eventually a bail hearing when you’re detained for a reasonably long length of time.

And that’s why Blackstone in 1771 said that the king’s bench or its judges may bail in any case whatsoever. Okay.

Now you think that’s not in the Constitution, the Eighth Amendment, liberty.

I mean, please.


So the question is, can you read that in? And the really basic thing is, why in heaven’s name shouldn’t you read that in here where it goes the detention is too long? Now you can say, well, we don’t want to take six months precisely or we don’t have precisely this proceeding or that proceeding.

Fine, that’s a reasonable argument. But given the history of this nation and Britain, where you’re going to detain a person, not even a criminal, you know, for months and months and months, why aren’t they at least entitled to a bail hearing? That’s all that’s at issue.

Justice Neil Gorsuch

Justice Gorsuch expressed concern that immigration judges are agents for the Department of Justice, and thus aren’t real fucking judges. As such, the detainees aren’t really getting adjudicated by the judicial branch in any way, but instead, the executive branch, who are biased to prosecute instead of adjudicate, are making the decisions for these poor bastards.

Counsel Matthew Adams for Gonzalez and company made his best effort to succinctly lay out how his argument is the same as SCOTUS held in a similar case:

As is often the case in habeas challenges, a federal court will grant the writ and instruct an immigration judge to conduct the bail hearing that’s required if a bail hearing is required. But what’s clear from this statute, as this Court held in Zadvydas, is that in order to ensure that detention remains tethered to its lawful purpose and, as all agreed in Zadvydas, the lawful purpose was either to guard against risk to the community or a failure to appear for removal, so what is required to guard against that risk? At the point detention becomes prolonged, there must be a determination as to removability or to flight risk. And that’s precisely what the lower courts have ordered, a determination for each one of these individuals at the point their detention becomes prolonged, which this Court held in Zadvydas is at six months.

His argument being, that even if we’re debating whether the lower courts had jurisdiction or not, the fact is, they just ordered to be done, what SCOTUS has already said should be done previously in Zadvydas—make your case, or give them bail and let them go on their merry way, once you’ve held them for six months.

He went on to address Justice Gorsuch’s argument above:

Importantly, the agency’s procedures themselves as — and the regulations with — that — that provide the government’s interpretation fail miserably to ensure that the statute remains tethered to its lawful purpose.

They do not provide for an independent decisionmaker. Time and again, this Court has confirmed that when making a custody determination, because physical liberty goes to the core of the Due Process Clause, it requires an independent decisionmaker, and that can’t be a law enforcement officer. Now the court didn’t question the integrity of the sheriff or prosecutor, no more than we’re questioning the integrity of the ICE officials.

Counsel Matt Adams

But the point was that their law enforcement responsibilities in arresting, charging, and prosecuting the removal of these individuals necessarily color the lens through which they make their own custody determination.

When Justice Alito asked Counsel Adams if the government has the burden of proving their clients are a flight risk, if they desire to keep holding them, Counsel Adams laid it all out, with a pretty eloquent argument:

Where that person has already been found by a DHS official to have a bona fide claim for protection under — and is entitled under statute to seek relief because of their fear of persecution or torture and is, therefore, transferred before the immigration court, every single one of these individuals have those proceedings because they passed that initial screening because they have bona fide claims, and where they’re facing prolonged detention, then — then, yes, I would confirm that the Constitution requires the government to bear that burden, as this Court made clear in Addington, because civil liberty — physical liberty is at the heart of the Due Process Clause.

And civil detention requires the government to shoulder that responsibility when dealing with this fundamental right. But, again, that is a separate finding that does not go to the Ninth Circuit’s statutory interpretation of this statute. And I would go back to the agency’s regulations.

Not — not only do they not provide an independent decisionmaker, they do not provide an adversarial hearing, Earlier, the Petitioners’ counsel asserted that there’s an entitlement to counsel at — at these interviews. Well, that — that is wrong.

Even their own regulations say that the individual may be accompanied at the discretion of both ICE and the detaining institution, so only if ICE affords you that right. And in my experience, that never happens.

You’re never notified that ICE is going to drop by the cell at 2:30 tomorrow afternoon to show up.

That simply does not occur.

There’s no right to confront the evidence. If the agency has decided that you are to remain detained because you present a risk because of a burglary charge against you, you don’t have the opportunity to even learn of that charge or that basis for the agency’s reasoning. You don’t have the opportunity to present the documents to show that that charge was subsequently dismissed, or, if they’re relying on the fact that your case is on appeal, you don’t have the opportunity to then confront that evidence and point out that you actually prevailed before the lower court, but now the government has appealed your case, dragging it out for another year. All of these are clear interpretations from the government that demonstrate the statute is no longer tethered to its lawful purpose. If you look at Mr. Aleman, he was denied release on custody after six months based solely on the fact that he continued to be in withholding-only proceedings.

There was no individualized analysis of risk of — or — or of danger to the community, risk of flight or danger to the community.

All it was was a rubber stamp by the same agency affirming its prior decision to keep him in custody. And, indeed, the regulations themself assert — under 241.4(d)(1), under the custody determination, states that even though an individual must demonstrate they are not a flight risk or a danger to the community in order to be released, that the agency retains the discretion to continue their detention, illustrating amply that their detention is no longer tethered to its lawful purpose. In Zadvydas, both the majority and the dissent clearly agreed that the purpose of the statute was to prevent risk of flight or danger. And just as this Court found that it is arbitrary to detain someone who may no longer be removed, it is equally arbitrary and unlawful to detain someone who does not present a flight risk or a danger to the community. And because of this, it is clear that the government’s interpretation fails to satisfy basic constitutional concerns. And because it raises those constitutional concerns and because the text of the statute, this Court’s construction in Zadvydas, and the agency’s own implementing regulations demonstrate that the court of appeals’ construction is more than fairly possible, that construction should be affirmed. The lower courts had the authority and the responsibility under Zadvydas to make those independent determinations at the point the individuals before them, the class members’ detention became prolonged. And that does not mean they’re going to get out at six months.

It only indicates that they will have a neutral decisionmaker deciding whether, in fact, their detention remains tethered to its lawful purpose.

So with all that being said, it should be understood what question SCOTUS is answering. The question is whether lower courts had jurisdiction to order the bond hearings, based on the statute above.

In a 6:3 partisan decision, after Counsel Adams had made a pretty convincing case, the Republican-appointed justices didn’t give a fuck if he made a whole lot of sense, they sided with the government. That the provision above absolutely bars lower courts from ordering detainees to get a bond hearing in a limited period of time. Even if those lower courts were interpreting a previous SCOTUS precedent, since SCOTUS does have jurisdiction.

The justices determined that the Department of Justice needs the time it needs to process the claims. Since these people came here illegally, they don’t get to force the government to make a hasty, and potentially wrong decision. They’re stuck waiting it out, until government figures out what the fuck to do with them.

I’m guessing that the question about whether these people get a bond hearing or not within six months, may end up in a future case, since they apparently only cared about the lower court’s jurisdiction here.

The three Democrat-appointed justices think the Republican six are far too enamored with dictionary definitions of words written into such statutes, and lack the creativity and intellect to piece together what was meant from such statutes. That clearly, congress intended for detainees to get processed in a reasonable amount of time, which is written in other parts of immigration law, and as per usual, the courts have jurisdiction to clarify any situation which the law makes somewhat ambiguous. This stupid provision doesn’t all of a sudden render all lower courts with no power to ever do anything on this front.

Sucks to be in the minority, I guess.

Average Joe SCOTUS: Johnson v. Arteaga-Martinez

A long time ago, at a border far far away, Antonio Arteaga-Martinez strolled into the United States from Mexico like he fucking owned the place. Not once, not twice, but a lot of fucking times. Who knows at this point? He apparently couldn’t be bothered with all that immigration jazz.

During one of his border-jumping excursions, he was caught, and sent back to Mexico. But, he’s a persistent mother fucker, so he came back again. At least now, the United States had a record of his ass coming here, and being sent home, though.

Aside from the fact that the United States is just a better place to live than Mexico, his reason for coming here is supposedly that he pissed off a Mexican gang when he was in Mexico as well. He claimed they went after him and his family, beating the fuck out of him and stealing a lot of his shit, including his car. So that’s why he was coming to the United States, because he had to get the fuck outta there.

In 2018, Immigration and Customs Enforcement (ICE) found out this dude had crashed our perpetual freedom party again, and were like, “Dude, you gotta go the fuck home. We’ve got rules. Comprende puta?”

But Antonio was like, “Man, shit be crazy in Mexico. You send me back there, you might as well shove a grenade up my ass and pull the pin.”

Now while that might seem like an irrelevant thing to say if someone is here illegally, just to try to get some sympathy or something, in America, we do grant asylum to people who have a reasonable fear of being persecuted or facing some violent action in their home country, through no fault of their own. For instance, someone who is gay, living in a country where they will murder you for being gay, is precisely the kind of person we would not send back.

Because anyone can claim such a thing without proof, the United States will hold them in an immigration facility, until their claim can be processed, researched, and determined their fears are legitimate. An asylum officer did hear his story, and presumably after some investigation, felt his claims weren’t total bullshit, and that a hearing may be in order, as opposed to him being full of shit and getting sent straight back.

Well, Martinez was there for like six fucking months. So he was like, “Dudes, I have money. Can I fucking post bond, and go back to where I was staying while I await my trial to determine whether I can stay? It’s a lot of money, and I worked hard for that shit. I’m not going to just walk away from that.”

In the United States, we have this “Habeus Corpus” rule. I’m sure you’ve heard of it, but few understand it. I know I didn’t at first. It literally translates to “that you have the body.” I’m sure that clears it all up, right? Of course not.

Let me give you an imaginary scenario. You have some dude and you think he murdered his wife. So you arrest him on suspicion of doing so. The problem is, you don’t have a dead wife lying around to prove anyone was murdered. You just have some circumstantial evidence that suggests that some woman was murdered.

In the US, you can’t just be held forever in jail without getting a trial and being prosecuted, that’s bullshit. So basically, in this instance, a habeus petition is like, “If you don’t have the fucking body to prove anyone was murdered, you have to let me fucking go. You can’t just hold me forever while you try to figure out whether I killed someone or not.”

Habeus has since became much more generic, and now basically means, “Either produce the evidence needed to prosecute me or let me go.” In this case, counsel Pratik Shah, for Martinez pointed out that his client wasn’t even close to all the hurdles needed to deport him, so he’d be detained a crazy amount of time before a final decision was made. A segment of his argument was this:

My client is yet another example of someone who — there was no significant likelihood of removal in the reasonably foreseeable future after he had been detained at six months. And that is because he had not even been given a hearing while detained.

We’re not talking about the non-detained docket; we are talking about detained.

Counsel Pratik Shah

He had been detained not — for six months, the government had not given him a hearing on his withholding claim. There is no chance he could have been removed in the reasonably foreseeable future because you can’t remove him until he has a hearing, has an IJ decision, has his BIA appeal.

We are talking months, if not years, until that happens.

So Martinez, filed a habeus petition, and was like, “Hey, man. You can’t just hold me forever. If you’ve got the evidence needed to say my claim is bullshit, then by all means, deport me. Otherwise, I should get my bond hearing at least, so I can do what I need to do, while I wait for my deportation hearing, and all the other shit you’re planning on putting me through before you are finished with me.”

So why does SCOTUS care about this?

Lower courts in the past, have ruled that the government has a limited period of time to grant a bond hearing, and that the burden to determine the person is a flight risk, is on the government. That last part just means that by default, the bond should be granted, and it should be assumed the person is not a flight risk, unless government puts forth some evidence they are.

Martinez’s argument in part, is that he was never given a hearing to determine whether he was someone at risk of non-compliance, so the government didn’t meet its burden. Since an immigration officer agreed his claim seems legit that he’d be murdered if he went back to Mexico, it seems logical he’ll likely be allowed to stay. So let him go on bond, and if at trial, the government finds evidence to suggest he was full of shit, they can send him back then.

There is a rule in place that requires the government to hold non-citizen illegal immigrants for 90 days, after they’re ordered to be removed from the country, but it allows for the government to hold them for more than 90 days if it thinks they’re a danger to society, or they simply won’t leave now that they’ve been told to.

SCOTUS had a previous case, in 2001, Zadvydas v. Davis, where they ruled that there is a time limit on this rule, and it’s six months. That extra time is for someone who is what they call “stateless.” That just means they’re in a situation for instance, where their home country won’t take them back, so where the fuck do you even send them? That takes time to figure out, but it doesn’t take forever. The constitution doesn’t just let government hold people indefinitely. So Zadvydas puts what they considered a reasonable and consistent time limit for the government to determine what to do with these fuckers.

So SCOTUS’ question is does that six month limit mean that they have to get a bond hearing? Or is it just that the government has to send them somewhere at this point, but otherwise stop holding them.

One interesting side issue here, was a question Justice Gorsuch asked:

What is the status of your client? Has he, in fact, received a bond hearing and is he, in fact, at liberty currently?

As it turns out, Martinez had been released under government supervision. I’m guessing maybe an ankle monitor.

The nature of Justice Gorsuch’s claim was, “If this dude is already released, isn’t your claim fucking moot?” (Moot in this case just means, the thing Martinez wanted, he already got, and therefore there’s no reason to be here.)

But counsel Shah pointed out that while government did release him, they’re free to grab him again, unless SCOTUS rules in his favor here, so he’s basically suing for some level of security to know his future, and what government may or may not do.

In a weird unanimous decision, the justices agreed that Martinez loses. He is not required to get a bond hearing. I say it’s weird, because while they all agreed that Martinez loses, they agreed for different reasons, and three different opinions were given as to why he loses.

Alito authored one opinion saying the lower courts can’t force the federal government to give this fucker a hearing, just because he filed a habeus petition.

Justices Thomas and Gorsuch were like, “Not only do we think Martinez doesn’t have a case here, we don’t think it’s any of our business. He doesn’t have any constitutional rights, he’s not a citizen. And furthermore, we think the assholes who decided Zadvydas were on crack, and that shit should be overruled as well. Spoiler alert, Justice Thomas was on that court also, and was in the minority. So apparently, he’s still salty about that shit.

Justice Breyer, ever the contrarian, thinks Zadvydas was decided correctly, that the court that decided it were geniuses, and it applies here. Spoiler alert, Justice Breyer was also on that court, and was in the majority.

So Martinez loses, but they didn’t have the votes to overturn Zadvydas. Case closed…for now.

Average Joe SCOTUS: Gallardo v. Marstiller

The petitioner, 13-year-old Gianinna Gallardo was riding along in her school bus, minding her own fucking business. When she got off the bus, a truck driver ran over her, causing serious injury, putting Gallardo in a coma. She remains in a vegetative state.

Since she is highly incapacitated, her suit is being managed by her parents and family members on her behalf, as she’s in no condition to go to SCOTUS, as cool as that might be.

As you can imagine, Gallardo’s family sued, and were eventually awarded $800,00 to cover past and future expenses. Pay attention to the “past and future” part of that, it’ll be rather important to the case.

Medicaid paid over $862k for the medical expenses she had incurred so far. When Medicaid was originally enacted, it had no provisions to recover money it had paid for healthcare costs. Once your bills were paid, they were paid.

But, in the sixties, one exception was written in that if the person whose bills were paid wins a lawsuit related to those expenses against a third party who caused the injuries, in this case the truck driver’s employer, Medicaid can claim a basic double-dip situation, and ask for their money back, since the 3rd party is now paying instead.

Since she won $800k from the driver, Medicaid was like, “Yo, we’d like our money back, please. We’ve got bills to pay, dawg.”

As per usual, SCOTUS loves these nerdy fucking weird-ass cases, where the interesting part of the case is basically settled, but there’s some weird fucking procedural question which is ambiguous, that they think needs clarified. This is yet another one of those cases.

So in this case, the issue is that the lawsuit was for “past and future” medical expenses. But the petitioner (Gallardo, the victim) argues Medicaid is only allowed to take back money paid for past expenses, which in this case, was apparently about $35,000. Team Gallardo is saying, “Whoa, Medicaid, you don’t get all of that. A lot of it is for future expenses, and you don’t get to take any of that.”

So that’s literally all that SCOTUS gets to decide. Do they divide up the $800k based on what was awarded for past and future expenses, and only let Medicaid recover the award for the past expenses portion, or do they let Medicaid take all of it until they’re made whole. Since only about $35k of their settlement was for past expenses, Medicaid sees that $765k nugget hanging out there, and they don’t want to let that shit go.

It’s also worth nothing, that this poor kid will assuredly rack up more expenses than what Medicaid or the lawsuit has gotten her, so the idea she’s being unjustly enriched somehow, is falser than false.

Counsel Brian Gowdy for Gallardo, early on, responding to Justice Thomas’ line of questioning about what costs are recoverable by Medicaid, and are they similar to child support said this:

Well, Your Honor, the analysis would still be the same whether it’s child support or tort recovery. The analysis would be—the medical care—and I said yes when you said it’s very broad, but the medical care mentioned in the assignment clause, in our view, when read in the whole text, is shorthand for medical care covered by Medicaid, furnished by Medicaid, paid for by Medicaid, and, therefore, the analysis will be whether the third-party liability covers the same care, service, or item covered by Medicaid. And my point about distinguishing between tort recoveries and childcare is tort recovery often pays for items, care, and service not covered by Medicaid.

Brian Gowdy

For example, if you’re a disabled person, you will need a special vehicle with medical equipment to be transported to your appointments. Medicaid does not cover for that, but a tortfeasor may have to pay for that. Childcare, I think, is different in the other regard in that childcare requires the parent to pay for all medical care, whether it’s covered by Medicaid or not, and, therefore, I think it’ll operate differently in that context than in the tort recovery context.

He’s basically like, “how the fuck can Medicaid take money paid for things that Medicaid never covered, or will cover in the future? That’s not fucking fair. If she only won what Medicare paid for, which is about 35 Gs in this case, by all means, take the 35 Gs back, but these greedy motherfuckers are taking everything from this poor kid. You can’t be fucking seriously even considering this right now.”

Spoiler alert: they were.

An amici for the petitioner (Gallardo) was the federal government. They agree with Gallardo. I know this is confusing, because the Medicaid law is a federal law, but apparently, each state has their own Medicaid program, with its own money, that I’m guessing operates under the federal Medicaid law? I don’t fucking know. And I still don’t after listening to this shit. I also don’t know if Medicaid, after getting all this money, will end up paying back in the future for future expenses. But anyway, it’s Florida trying to get that money back, not the federal government who wrote the law.

Counsel Vivek Suri for the federal government gets the award for the most prepared lawyer SCOTUS has ever had walk through the door. After petitioner’s counsel Gowdy was done with his argument, Vivek came in, and literally answered pretty much every fucking question every justice asked to Gowdy, as coolly and calmly as I’ve ever heard one argue. He deserves the Rico Suave award, if one exists. Here’s his opening remarks:

Mr. Chief Justice, and may it please the Court: Our position does not turn on any distinction between past and future medical expenses.

Couldn’t find a single usable image of Solicitor General Vivek Suri on Google. I saw some that might be him, but it was hard to be sure. This guy’s a fucking ghost. So here’s an image of Rico Suave instead

It instead turns on who paid for those expenses. Medicaid is entitled to the portions of the recovery that correspond to the things Medicaid paid for, and the beneficiary gets the portions of the recovery that correspond to the things the beneficiary paid for. Justice Thomas, you asked about how this would work in the context of child support or medical support provided by a parent.

Our answer is that it would work the same way.

The same kind of allocation would have to be made. Justice Alito, you asked how this would work in the context of payments that are made after the settlement.

I agree that’s something that can happen, although it’s unusual, and in that case, as I’ve said, we draw no distinction between past and future payments.

The entitlement would turn entirely on who made the payment. Justice Kagan, you asked about the word “available” in (A).

And we agree that the word “available” can be read to mean theoretically available.

But the key language here is not in (A).

It’s in (B).

(B) is the provision that specifies the pool of funds from which the recovery can be obtained.

And that’s at the very end of (B) where it says “to the extent of such legal liability.” But, if you look earlier in (B), it says such a legal liability is found to exist after medical assistance has been made available on behalf of the individual.

And that makes clear that we’re not talking about theoretical availability.

We’re talking about actually being made available. In addition, if you look at page 7A of our brief, there’s a regulation, 42 C.F.R. 433.138, which interprets (A) itself to apply to services that are furnished and not merely available under the plan. Justice Kavanaugh, you asked about the Medicare analogy, and I don’t think that analogy really helps in this context.

That’s because Medicare adopts the system that was rejected in Ahlborn.

In other words, it’s not the case that Medicare takes the pool of money that is attributable to future medical expenses.

Rather, it takes from the entire pool of the settlement. And now — we think it’s rational for Congress to have done one of two things.

You could say you limit the — the government to the pool of money that corresponds to the funds that have actually been paid for by Medicaid, and that would be fair to the beneficiary. Alternatively, you could say that the government could take the entire settlement. That would be less fair to the beneficiary, but it avoids the administrative costs and hassle of having these allocation determinations. But what’s less understandable is why Congress would have adopted the middle ground that Florida wants, where you have the administrative expense of these allocation proceedings, but you also don’t have the fairness to the beneficiary because Medicaid is going beyond the pool that corresponds to the funds that Medicaid itself has paid for.

In many ways, it’s the worst of all worlds. Justice Gorsuch, you had asked about Section 1983 and how that would apply here. The federal government agrees that the Court shouldn’t reach that issue in this case.

Justice Neil Gorsuch

It’s a difficult issue about how Section 1983 should be interpreted.

There are also complications about whether it should be under Section 1983 or Ex parte Young.

We’d urge the Court to reserve that case — that issue for future cases. Justice Breyer, your hypothetical involved Smith and Jones and Smith getting to pay I think it was 15,000 out of the 25,000. How does Medicaid recover the remaining 10,000? I think the way to deal with that is, first, the state could go after the tortfeasor directly.

It has multiple avenues for doing that.

It’s received an assignment.

It could use that assignment to bring the suit in the first place. Second, after the suit has been brought by the private individual, the state could intervene in that case. Third, after the settlement has been reached, the state could say we’re not a party to that settlement and we still want to sue the individual for the remaining money, and in that suit, the state could ask for the full extent of its expenses. But what the state is doing here is it’s not going after the tortfeasor.

It’s going after the victim of the accident, and it’s seeking funds that don’t correspond to the things it paid for. We think that’s exactly what the anti-lien clause prevents the state from doing. If there are any other questions, I welcome them.

Clearly, Vivek was ready for this shit.

Once the petitioner and the federal government were done with their arguments, it was time for the greedy fucks from Florida to chime in. Henry Whitaker for the respondents (Florida) made it clear that basically, the program is hemorrhaging money, and so they can’t be fucking around, leaving money out there on the table:

Henry Whitaker

Mr. Chief Justice, and may it please the Court: Medicaid is an important and expensive part of the social safety net.

To help keep Medicaid solvent, Congress made Medicaid the payer of last resort, meaning that other available resources should pay medical expenses before Medicaid pays.

As part of that role, Medicaid recovers money from tortfeasors who injure Medicaid beneficiaries.

When it does so, Medicaid can never be reimbursed for more than it paid out in benefits. The question here is whether the program may seek that reimbursement from a tort settlement, not only out of medical damages or medical expenses paid in the past but also for medical expenses that will be paid in the future. Section 1396k of the statute answers that question.

It provides for Medicaid beneficiaries to assign to the program rights to payment for “medical care,” not past medical care, not some complicated subset of medical care.

Medical care, period, including payments for medical care that may be necessary in the future. That reading is confirmed by subsection (B) of Section 1396k, the remainder provision.

Medical expenses may include expenses that Medicaid paid and expenses that the beneficiary paid.

The remainder provision says that if Medicaid recovers all of those medical expenses, Medicaid is reimbursed for its expenses and the remaining amount goes to the beneficiary. But, if there isn’t enough money to reimburse both Medicaid and the beneficiary, the remainder provision says that Medicaid gets paid first.

In other words, far from prohibiting Medicaid from recovering out of all medical damages, Section 1396k gives Medicaid’s reimbursement claim priority over other claims to medical expenses. The result is neither untoward nor surprising.

Medicaid can never be reimbursed for more than it paid out in benefits. Medicaid can also never receive any non-medical damages, but because it is the payer of last resort for medical expenses, it may recover from all medical damages. I welcome the Court’s questions.

~Counsel for Florida Henry Whitaker

He made an interesting point in saying that Medicaid is not a payer of first resort, it’s the last. So if there’s anyone who’s paying for medical care for the victim, then that pay must happen first, and then once that’s exhausted, then we’ll talk about Medicaid kicking in. Since in this case, Medicaid paid first, before the tort was settled, if the Gallardo’s had won the suit first, Medicaid would never have kicked in a dime yet, since they haven’t exhausted all the money from the tort. So what they’re asking for here, is no different. It’s just a timeline issue.

In a 7:2 majority, where justice Elena Kagan joined the Republican appointees, they ruled that in order for Medicaid to remain solvent, it has the right to recover any money’s from a lawsuit the claimant recovered as a result of the lawsuit relating to their injuries until Medicaid is made whole for the money they paid out.

Whether or not those damages were to pay for things Medicaid covered or not, is irrelevant. They don’t give a fuck if this leaves the patient without enough funds to cover their medical bills into the future, the law is the law. If congress doesn’t like it, congress should change it.

Justices Sotomayor and Breyer think the other seven are being the world’s biggest assholes right meow. Basically accusing the other seven of not reading the entirety of the statutes around this in context, but instead, focusing on particular segments of the law in isolation, and coming to a conclusion they might not otherwise come to.

Average Joe SCOTUS: Biden v. Missouri

If you haven’t already read AVERAGE JOE SCOTUS: NATIONAL FEDERATION OF INDEPENDENT BUSINESS V. DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, this case was related to that. So I will try not rehash too much from the OSHA case, but instead, focus on what was different about this one, as it was argued separately.

While OSHA was trying to make a sweeping rule for all workplaces in the other case, the department of Health and Human Services (HHS) here narrowly regulated that anyone who works in a facility that accepts Medicare or Medicaid (we’ll call it Eminem for fun) be vaccinated, unless they have a religious or medical exemption. Failing to do so, would cause a loss of funding from Eminem for being non-compliant.

So to be clear, it wasn’t a law forcing anyone to do anything, it was government saying that if any hospital wants paid by Eminem, it must comply with government’s rules. They were welcome to no longer accept Eminem, and not be subject to this rule.

Aside from the money issue, the elderly who were most at risk, are the people using Eminem, making it additionally important for them.

Also unlike the OSHA case, healthcare workers did not have the option to wear a mask if they chose not to vaccinate.

On a side note, if you’re curious, it’s called Biden v. Missouri because HHS operates at the behest of president Biden, and Missouri is the state that decided HHS had gone too fucking far with this shit.

I’ll go on my soapbox for a second and simply say, if someone has a degree in healthcare, and they’re still anti-vaccine, I’m going to argue that the notion that they slept, drank, or got high most of their way through college, is significantly more likely. The days of a rogue scientist being right against an overwhelming consensus of other scientists pretty much ended with the modern scientific method.

I should be clear, while I have a pretty low tolerance for healthcare workers who are anti-vaccine as a whole, I’m only referring to those who are against vaccines altogether. There are legitimate science-based reasons for a small subset of people not to get vaccinated, so I’m totally not attacking them, nor arguing they must be wrong. Those are the “medical exemption” people mentioned above.

During arguments, Justice Sotomayor apparently opted to “tag in” for the Biden administration, adding her own supporting argument that this is a power within Constitution’s spending clause, as it allows the government to impose conditions it desires, when it offers to give money to an entity.

Justice Sonya Sotomayor

Justice Kagan, also seemingly argued for petitioner’s. When counsel for Missouri argued that people might be put in a position to quit if they were opposed to the vaccine, causing a healthcare worker shortage, Kagan fired back that it’s also true that workers who already left the workplace for fear of contracting COVID might return to work if they know all their idiot antivax coworkers were fired, or sucked it up and took the fucking vaccine.

She also pointed out many people were avoiding going to the hospital for fear of contracting COVID, in part because there are idiots at the hospital who refused the fucking vaccine for their own dumb fucking reasons, instead of science-based ones.

I’m also putting religion into a dumb fucking reason, because I’ve never seen the word “vaccine” in the Bible, Quran, or any other religious book, except maybe Dianetics, but that’s not a religion, it’s a cult. So any religious exemption to vaccines is the imagination of the believer, not the word of their god as handed down by any text that I’m aware of.

Justice Gorsuch, while grasping the idea that this is a spending clause, still raised concerns this statute is still essentially telling hospitals who to fire, affecting tenure and such (which HHS is prohibited from doing), because it’s…well…I’ll let Justice Gorsuch explain in his own words:

This statute, unlike the OSHA statute, actually contains an express limitation on the Secretary’s authority that we haven’t yet discussed and that I know you’re familiar with.

Among other things, it says the Secretary shall not control the tenure of employees at covered healthcare facilities or their compensation or their selection. And this regulation, arguably, the other side will say—I’m sure we’re going to hear it, so I didn’t want you to not have a chance—is going to say this effectively controls the employment of individuals at these healthcare facilities in a way that Congress specifically prohibited. As I understand your response, it is we’re just providing money or not providing money, and by withholding money, we’re not controlling who you hire. And I might understand that in some circumstances, but in a statute where everything is about spending, it’s a Spending Clause statute, I would have thought that Congress would have understood and we should interpret this language in that light, that you cannot use the money as a weapon to control these things. And, in fact, of course, as you know, the Court has some anti-commandeering law. That’s doctrinal speak for you can’t always use money without—and claim you’re not controlling what’s going on. And I wonder whether we should take particular cognizance of that here given that these statutes sometimes constitute, we’re told, 10 percent of all the funding that state governments receive.

Justice Neil Gorsuch

This regulation affects, we’re told, 10 million healthcare workers and will cost over a billion dollars for employers to comply with. So what’s your reaction to that? Why isn’t this a regulation that effectively controls the employment and tenure of healthcare workers at hospitals, an issue Congress said the agency didn’t have the authority, that should be left to states to regulate?

Their exchange went on for a while, but essentially, counsel for HHS agreed to Gorsuch’s point somewhat, but then gave other examples where HHS set requirements as a condition to get funding such as requiring doctors to be licensed for instance, which no one has beef with. So clearly, there’s some leeway within his concern.

He argues specifically that he felt setting standards doesn’t constitute control. I mean, it kinda is, but hey. Lawyers get paid to come up with colorful arguments, and lawyers who got to argue in front of SCOTUS are the best in the biz.

After The Biden admin peeps finished their arguments, it was time for Missouri to launch their campaign. For that job, they turned to none other than Jesus himself—Jesus Osete.

Counsel Jesus Osete

In his argument, he took issue that the provision that gives HHS the power to act in the interest of the health and safety of patients, that those Biden fuckers are ignoring a lot of other shit to make their claim that it’s OK to add a vaccine mandate of this nature.

Justice Kagan, apparently not having a Jesus fish on her car, was unimpressed with counsel Osete’s argument. It seems being in a 3:6 minority is wearing on her, because she’s been rather belligerent as of late. But to be fair, anti-vax zealots are clearly annoying to me too, so I guess I can’t blame her too much. Either way, her exchange with counsel Osete turned the “testy” level all the way to eleven.

She was asking him for instance, if they can require hospitals to sterilize necessary equipment to prevent infection, which counsel Osete agreed to. So she was like, “then how the fuck is this any different, mother fucker?”

The exchange between them was long AF, so I’m not copying it here, and Justice Kagan was not exactly allowing counsel Osete to make his point anyway, by setting a Guiness World Record for interrupting a respondent. But it’s also true, that counsel Osete was acting in a manner that’s kinda like, “If you don’t like the question, answer the question you wished they’d asked, instead of what they actually asked. He was definitely in spin mode.

Justice Elena Kagan

Counsel Osete really wanted to hammer home the idea that smaller hospitals would be “devastated” by the rule HHS has adopted. Let’s be clear about what he’s saying. Small hospitals have so many anti-vaccine assholes in their midst, that such a rule, would cripple them.

I’m not sure what kind of data he’s citing to make such an astounding claim, but I’d like to believe that anti-vaccine zealots in the health care industry, are the fringe, not the norm. Although, to be fair, plenty of credible doctors were silenced for promoting the idea that natural immunity shouldn’t be ignored entirely, and if someone already contracted COVID, maybe a vaccine wasn’t completely necessary for them.

After the epic battle with Justice Kagan, Justice Kavanaugh brought up a unique question when he asked:

First, this is an unusual administrative law situation from my experience because the people who are regulated are not here complaining about the regulation, the — the hospitals and healthcare organizations.

It’s a very unusual situation. They, in fact, overwhelmingly appear to support the Secretary’s — the CMS regulation.

So I want — and the government makes something of that. What — what are we to make of that?

Justice Brett Kavanaugh

It is a valid point, that the regulation in many ways, is probably a rule the hospitals wanted to impose themselves, but figured it’d piss off their employees. So getting HHS to make the law instead lets the hospitals off the hook so they can be like, “Hey, it’s not our rule! We’re with you *wink-wink*, it’s those nasty assholes at HHS. Sorry. Here’s your shot.”

Justice Kavanaugh went on to give Counsel Osete an opportunity to ultimately explain his beef with Justice Kagan’s line of questioning.

He asked:

How is a vaccine different in kind, from your perspective, from, say, the requirement to wear gloves or the requirement to wash your hands or the other kinds of requirements? Because I think, if you acknowledge that there’s authority to require the latter, then you need to explain why the — the vaccine is different.

His response:

I don’t think I could say it any better than Chief Judge Sutton did at page 12 of his dissent in the OSHA case, which is masks can come off, gloves can come off.

A vaccine requirement, the taking a vaccine is a permanent medical procedure that cannot come off after work is over.

That is, there are — there are materially different conditions, materially different procedures at stake. And when you look at the context, for example, in the hospital requirement, 1395x(e), nothing in that statute comes close to authorizing this precise mandate in this case, which is going to have devastating consequences for vast swaths of this country, Your Honor.

He at least made a valid point as to the distinctions, even if it isn’t necessarily a distinction the law authorizing HHS to do their jobs makes.

Amici for Missouri, Elizabeth Murrill (an amici is an interested third party, which is not part of the suit, but has officially added their opinion to the case) opened her oral arguments with this:

Thank you, Mr. Chief Justice, and may it please the Court: This case is not about whether vaccines are effective, useful, or a good idea. It’s about whether this federal executive branch agency has the power to force millions of people working for or with a Medicare or Medicaid provider to undergo an invasive, irrevocable, forced medical treatment, a COVID shot.

It’s a bureaucratic power move that is unprecedented. If it can do that, the question still remains as to whether it properly exercised that power here.

The district court answered no to both questions at the preliminary injunction stage, and the court below supported its ruling with a number of well-reasoned conclusions. Now, without even addressing all the underlying bases for the ruling, the government asks this Court to jump ahead of the Fifth Circuit and dissolve the injunction, irrevocably changing the status quo in a way that will effectively give the federal government all the relief it seeks.

This will create chaos in state provider networks, limit access to care for the poor and needy, and eviscerate informed consent for millions of people. The Court should reject the government’s request and maintain the status quo because the district court’s holdings were correct on all counts. I’m happy to take questions or speak to some of the questions that have already been asked by the Court.

Elizabeth Murrill

While she also makes a colorful point, I’d argue that a fundamental flaw is her omission of the options. That at no point is the law requiring any health care worker to get a vaccine. It’s forcing employers to mandate workers to do so, if they want to be receive funds from Eminem.

While it is clear that these hospitals depend on these programs for a huge chunk of their cash flow, and rejecting it, would basically put them out of business, I think alluding to the fact that the option is there, but that it’s just impractical, would be a better and more honest approach than acting like the option is non-existent, which seems more like the argument a politician would make, versus a highly competent lawyer who’s qualified to argue in front of SCOTUS.

So on to the decision. While the conservative majority was not ready to give OSHA such broad powers to regulate vaccinating and masking in all workplaces in the other case, Justices Roberts and Kavanaugh, joined the left-leaning justices to form a different majority who sided with the Biden administration, allowing HHS to regulate their industry in such a specific way. Because this was a much more narrow rule, affecting only health care workers that make a living off of government funding, it wasn’t the broad sweeping power OSHA tried to implement, and thus one they were willing to let lie.

In their dissent, Justices Thomas, Alito, Gorsuch, and Barrett accepted the majority’s reasoning to some extent, but simply believed that HHS had no written authority from congress to enact such a strong regulation. If congress had intended HHS to have such power, they’d have expressly written so in the law creating HHS.

Hear oral arguments or read about the case here at Oyez, or here at SCOTUSBlog.

Average Joe SCOTUS: National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration

In a case, which wins the award for being the longest named SCOTUS case of the last decade or so, we’re talking about COVID. Remember that shit?

In order to minimize the risk to American workers during the COVID pandemic, the Occupational Safety & Health Administration (OSHA), back in November of 2021, issued a mandate that any company with over 100 employees either require employees to get vaccinated, or wear a mask when at work.

While OSHA isn’t the CDC, they felt it was within their jurisdiction, in order to make sure people were safe at work, from anti-vaccine anti-mask zealots.

The National Federation of Independent Business (NFIB) and others filed suit, arguing that this was not within OSHA’s rights to make such a regulation.

Because it was a pandemic issue, and the petitioner’s were seeking a stay of the order that would go into effect in a matter of days, SCOTUS decided to fast track this shit, and hear arguments much faster than normal.

The NFIB’s arguments are basically that this shit would cost employers a shit ton of money. Not that they would be forced to buy the masks or the vaccines, but instead, there are a good number of their employees who are anti-vaccine anti-mask zealots who’d rather take their toys, go home, and quit like the little anti-science crybabies they are, than protect their fellow coworkers.

Actual Photo of Anti-Mask Anti-Vaccine Person

I know it might seem anti-libertarian on the face of it to attack these anti-vaccine folks, but this is the Logical Libertarian, not the Zealous Libertarian, or Anarchist Pseudo-Libertarian. Vaccines fucking work, and any dangers that have been uncovered through the years were not only minimal, but highly overshadowed by their benefits. Any argument to the contrary is either born of ignorance or malice.

On this page, we promote science and libertarianism combined in a logical approach. I’m not interested in hosting an anarchist site where I call myself libertarian just because I know most people hate anarchy as much as they hate communism.

As I see it, the difference between anarchy and libertarianism, is libertarianism promotes the idea that government should exist to protect people’s rights. So while it is fair to debate the merits of all this, and others are welcome to differ in opinion, vaccines aren’t just about saving the vaccinated person’s life, it’s about protecting others they come in contact with. While I do oppose hard vaccine mandates, where everyone must get one no matter what, I think conditional mandates like this are arguably protecting people’s right to life, while still being optional.

A good analogy would be, if you want to drive a car on our roads, you have to agree not to be drunk when doing so. Few libertarians are promoting getting rid of all drunk driving laws. So arguing, “if you want to work for an employer, you have to make a reasonable effort not to put other employees at risk from sickness and death,” isn’t a hugely different proposal.

Obviously, disagreement and fair counter-arguments are always welcome. It just needs to be acknowledged that it’s a fair argument, and there are also fair arguments opposing it. Zealots who can’t accept this, are invited to cordially eat my entire ass.

Apologies for the distraction, I’ll get back to this case in front of SCOTUS now.

Scott Keller, counsel for the NFIB opened with an argument that basically hit two main points. One, OSHA has never regulated vaccines before, and that this rule, effectively makes businesses a “de-facto public health agency” as he put it.

But shortly after his opening arguments, Justice Kagan was having none of his argument. She chimed in with this:

Mr. Keller, I don’t understand the point. Whatever “necessary” means, whether it’s necessary and proper or whether it’s something more than that, why isn’t this necessary to abate a grave risk? This is a pandemic in which nearly a million people have died.

It is by far the greatest public health danger that this country has faced in the last century.

More and more people are dying every day.

More and more people are getting sick every day.

I don’t mean to be dramatic here.

I’m just sort of stating facts. And this is the policy that is most geared to stopping all this.

There’s nothing else that will perform that function better than incentivizing people strongly to vaccinate themselves. So, you know, whatever “necessary” means, whatever “grave” means, why isn’t this necessary and grave?

Justice Elena Kagan

One of the arguments presented by both counselors for the petitioners was that OSHA generally regulates issues that are specific dangers to specific businesses.

For instance, if your business operates a forklift in a warehouse, they’ll regulate how that forklift is to be used to ensure some dumb fuck operating the forklift doesn’t run over some idiot worker not paying attention when a heavy vehicle is driving around next to them.

Or maybe you’re a roofer, OSHA might regulate you wear a safety harness so your dumb ass doesn’t fall 50 feet to your fucking death because you’re clumsy as fuck, and lost your footing. Shit like that.

But this rule, seems to be a nationwide sweeping rule that applies to everyone, everywhere, all the time. Basically, their beef is that if you were the type of worker who is essentially on your own, maybe driving around in a car by yourself, or out on some location where you’re not around other people as a necessary requirement of your job, a vaccine or mask in your situation isn’t really protecting anyone. So then it becomes an overreach.

The second counsel for the petitioners, Benjamin Flowers, hit this point home with his opening argument:

Mr. Chief Justice, and may it please the Court: OSHA typically identifies a workplace danger and then regulates it.

But, here, the President decided to regulate a danger and then told OSHA to find a work-related basis for doing so.

This resulted in the vaccine mandate, a blunderbuss rule, nationwide in scope, that requires the same thing of all covered employers, regardless of the other steps they’ve taken to protect employees, regardless of the nature of their workplaces, regardless of their employees’ risk factors, and regardless of local conditions that state and local officials are far better positioned to understand and accommodate. So sweeping a rule is not necessary to protect employees from a grave danger as the emergency provision requires.

And I want to be clear that states share OSHA’s desire to bring this pandemic to a close, but the agency cannot pursue that laudable goal unlawfully. I welcome your questions.

Benjamin Flowers

He went on to argue, that COVID isn’t a workplace danger, it’s just a danger that exists in the world right now. While he didn’t say it, I think he’s effectively arguing this is the purview of the CDC to regulate, or congress to pass a law, not OSHA.

Using my forklift example, he’s basically arguing that’s not a danger I face at home. It’s specifically a workplace risk. But COVID is a danger I face everywhere. Ergo, not a workplace risk. Ergo, not the purview of OSHA.

But Justice Kagan was having none of this noise. She passionately fired back:

Well, why not? I mean, the combination of lots of people all going in to one indoor space and having to deal with each other for eight hours, ten hours, however many hours a day, in those settings, the combination of the environment and the people that are in that environment create a risk, I would think.

I mean, tell me if I’m wrong about this.

I would think that workplace risk is about the greatest least controllable risk with respect to COVID that any person has. You know, everything else a person can control.

You can go to the baseball game or not go to the baseball game.

You can decide who to go to the baseball game with.

But you can’t do any of that in workplaces.

You have to be there.

You have to be there for eight hours a day.

You have to be there in the exact environment that the workplace is set up with. And you have to be there with a bunch of people you don’t know and who might be completely irresponsible. Where else do people have a greater risk than at the workplace?

One question I have in all this, is while counsel made some pretty creative arguments to the distinction of workplace risk, versus general risk, at no point did anyone arguing for NFIB point out that OSHA has such a distinction in law prohibiting it from creating a regulation to lessen a general risk that also occurs in the workplace.

Whenever I have such questions, there’s a part of me that recognizes, these counselors and justices have forgotten more about law than I’ll ever know, and that surely, they thought of this, it was somehow addressed, and my feeble legal mind just doesn’t understand.

But then there’s another part of me that thinks, “Well, I’m not an idiot. Sometimes, even really talented people make dumb mistakes or oversights. Maybe I’m on to something.” So then I get this notion that if only I were in the halls of the Supreme Court, and could just raise my hand and chime in, I’d be a hero.

Moving on…

Justice Breyer also chimed in, with a well-researched refutation of counsel’s argument, that people who aren’t at risk get no exception:

What this says, what I mean, my law clerks have been busy beavers on this case, I promise you, and what they have on this issue is that there are exceptions here.

There aren’t exceptions business by business, but there are exceptions, those who work from home, alone, or substantially outdoors, or those who can show that their conditions, practices, means, methods, operations, or processes make their workplaces as safe and healthful as the ETS can obtain a variance, okay? So they did make some distinctions.

Not industry by industry, but my question really is, that I’d like to turn this to, is a stay.

You heard what I asked.

Justice Stephen Breyer

I mean, you know, 750 million new cases yesterday or close to that is a lot. I don’t mean to be facetious. But that’s why I said I would find it, you know, unbelievable that it could be in the public interest to suddenly stop these vaccinations.

And the only answer that was given was a lot of people will quit. Well, OSHA considered that.

My wonderful law clerk has 61475, 63422, 61466, 61 474 and 475, those are pages.

I don’t think you should read all 61,000, but, nonetheless, there are at least five or 10 pages where they went into this, and they said, in our view, hmm, yeah, that’s right, some people may quit, maybe 3 percent.

But more may quit when they discover they have to work together with unvaccinated others because that means they may get the disease.

Okay? And more will quit because they’ll be — maybe die or maybe they’ll be in the hospital or maybe they’ll be sick and have to stay home for two weeks.

So they did the pros and cons. So I’d like to take Justice Kagan’s questions, which I think I share on the merits, and just ask you, are you asking us both still to issue a stay today, tomorrow, Monday, and why, if you are?

It’s also worth noting, that while many painted this as a vaccine mandate, there was the option to wear a mask, if one chose not to vaccinate, making it not a mandate.

During the argument from OSHA, Justice Roberts expressed concern that the president is essentially side-stepping congressional action, by getting government agencies to regulate on multiple fronts. He didn’t mention the president directly, so that’s just my interpretation of it.

Justice John Roberts

The point being, congress passes laws, agencies pass regulations. Getting congress to pass a law is a bitch. But if the president wants an agency, or in this case, multiple agencies to create a regulation, which essentially carries the same weight as a law, they just tell them to do fucking do it or get canned. In so doing, it’s basically the president making law, instead of congress.

Justice Alito, also looking for some distinction between this, and other previous OSHA actions asked this:

On the issue of whether you’re trying to squeeze an elephant into a mouse hole and the question of whether this is fundamentally different from anything that OSHA has ever done before, I want to see if it might be fundamentally different in at least two respects and get your answer to the question. Most OSHA regulations, all of the ones with which I’m familiar, affect employees when they are on the job but not when they are not on the job.

And this affects employees all the time.

If you’re vaccinated while you’re on the job, you’re vaccinated when you’re not on the job. Isn’t this different from anything OSHA has done before in that respect?

Justice Samuel Alito
Counsel was quick to correct Justice Alito, that there is a mask option, making it not a permanent action, necessarily.

While Justice Alito went out of his way to agree that the vaccines were safe and effective, he wanted to address that there is some level of risk in a vaccine. So one contention he raised, was asking whether OSHA had imposed any other rules where the person was asked to do something that carried with it additional risk.

While he was directing it at counsel, Justice Sotomayor could not resist an awkward argument between them, where they both were acting like they were talking to counsel for OSHA, but they were clearly trying to tell the other, “Stop being such a fucking idiot, you asshole.”

Sorry, I know this is getting long-winded, but there’s some interesting shit in here. One thing I think that’s worth learning; you’ll hear reference to the “Major questions doctrine.” As I mentioned earlier, Justice Robert’s expressed concern that maybe the president was acting as a lawmaker, by using regulatory agencies to make things happen. The “major questions doctrine” is basically at the heart of what Justice Roberts was asking. If there’s something that is a major question the people should likely decide, allowing unelected agencies to regulate it, is not appropriate, and instead should be a law passed by the people’s representatives instead.

Since laws and regulations have essentially the same power, it’s at least a distinction as to when a law should be passed, versus a regulation be written. A bigger distinction of course being that an agency is generally specialized, and lawmakers aren’t specialists. So for instance, if we’re talking about health issues, lawmakers probably wouldn’t know how to write a law about specific healthcare actions, and instead would leave that up to the FDA or CDC. Congress merely grants those agencies the power to do those things.

Justice Gorsuch, seemingly concerned about Justice Roberts’ point about circumventing congress fairly pointed out:

So my question with respect to the major questions doctrine is this: We accept that it’s not our role to decide public health questions, but it is our important job to decide who should decide those questions. I think we all agree on that.

And, here, our choice on the one hand is a federal agency and on the other hand the Congress of the United States and state governments. Now you argue we should not consider the major questions doctrine unless and until we find a statutory ambiguity.

I understand that.

Justice Neil Gorsuch

But let’s — let’s say the Court does find such an ambiguity.

I know you’ll contest the premise, but let’s just work on it. If — if there is an ambiguity, why isn’t this a major question that, therefore, belongs to the people’s representatives of the states and in the halls of Congress, given that the statute at issue here is, as the Chief Justice pointed out, 50 years old, doesn’t address this question. The rule affects, I believe, we’re told, 80 million people, and the government reserves the right to extend it to every private business in the country. Traditionally, states have had the responsibility for overseeing vaccination mandates.

I rejected a challenge to one just the other day from New Mexico. Congress has had a year to act on the question of vaccine mandates already.

As the Chief Justice points out, it appears that the federal government is going agency by agency as a workaround to its inability to get Congress to act. The risks imposed here are not unilateral.

There are risks to those who choose not to be vaccinated that they’re trying to avoid sometimes, as you discussed with Justice Alito and conceded to him. Traditionally, OSHA has had rules that affect workplace hazards that are unique to the workplace and don’t involve hazards that affect individuals 24 hours a day. So that’s kind of the general tick list we have before us, and I’d just like you to address, again, the question, assuming the statute’s ambiguous, why isn’t this a major question that normally under our Constitution would reserve — be reserved for the people’s representatives in the states in the first instance and in the halls of Congress in the second?

Elizabeth Prelogar, for OSHA, while acknowledging the premise of the question, simply argued that OSHA’s mission statement, given to it by congress, is protecting workers in the workplace, which is what this regulation does.

If there were any argument presented that seemed to really make the case against this regulation, was when Justice Gorsuch asked about why they don’t have similar rules for the flu.

Elizabeth Prelogar

Counsel Prolegar’s answer was fair, but presents basically a subjectivity issue. Influenza can be deadly, but at the time, COVID deaths were far higher than any recent influenza mortality rates. She also pointed out that influenza is seasonal and consistent, whereas COVID was new.

In retrospect, the evidence now suggests COVID will be seasonal and consistent, too. But, essentially, she was drawing a line that hadn’t been established, that the severity of the disease gives them cause to act.

Weirdly, I’m surprised she didn’t just respond that COVID was officially a pandemic at the time, influenza was not. But maybe she wasn’t ready for that question, and didn’t think of that answer. Or, maybe I’m a fucking idiot.

Anyway, in a per curium opinion (that just means it wasn’t authored by any one justice, and it was a pretty brief opinion), that was drawn along partisan lines, the right-wing majority sided with the NFIB. They said that such a large and sweeping rule, should either be delegated by congress or written by congress. This was simply too significant for OSHA to do on its own.

They wrote:

Permitting OSHA to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock — would significantly expand OSHA’s regulatory authority without clear congressional authorization.

So there you have it. OSHA gets smacked down, and congress and the president have a better understanding of their roles and the jobs they must do, and must not do going forward

I applaud OSHA for trying their level best, but frankly, it’s hard to disagree with this opinion. While this particular regulation may have seemed like a good thing and saved a significant number of lives, these same powers, if not reigned in, could and would be used for things any one of us may not agree with in the future.

Hear oral arguments or read about the case here at Oyez, or here at SCOTUSBlog.

Average Joe SCOTUS: Carson v. Makin

So let’s talk about the first amendment, y’all. The beginning of that baby goes like this, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” It goes on to talk about free speech and shit, but that’s basically what it says on religion.

You know what it doesn’t say? “Separation of church and state.”

So where did the “separation” phrase come from? Well, it turns out, in 1802, one Thomas Jefferson wrote a letter to a church group, describing the first amendment saying religion was:

A matter which lies solely between Man & his God.

He went on to write:

I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.

Thomas Jefferson

So, why the history lesson instead of some SCOTUS shit? I’m getting to that.

Since then, SCOTUS has often interpreted the first amendment via precedent, to mean what Jefferson wrote. So while the amendment says “congress shall make no law,” on numerous occasions, SCOTUS has ruled against religious involvement in government, even when it has nothing to do with congress making a law, honoring what Jefferson considered the intent of the first amendment, to create a wall of separation between church and state.

While I’m agnostic-atheist, and agree with the philosophy of their decision, one should still note, what the constitution actually says, as justices like the late Antonin Scalia, and his still sitting counterpart Clarence Thomas largely believe it wasn’t SCOTUS’ fucking business to think about what the writers of the text meant when they wrote it, but that their job was to be strict textualists, and interpret the constitution as written. What Scalia called a “Dead document.

They fairly argue(d) that there was an amendment process set forth in the constitution. So if the populace doesn’t like the fucking text, Congress can endeavor to amend that shit. If they’re successful, then SCOTUS will rule and review based on the new amended text.

U.S. Supreme Court Justice Antonin Scalia

So this case, centers around this debate, in my estimation. You see, in Maine, kids are guaranteed a free education, which is to be administrated by a Maine government agency known as School Administrative Units (SAUs). If an area doesn’t have schools of its own, the SAU for that area is to pay to send those rugrats to an approved school in the area.

In order to be approved, the school has to meet certain standards. One of which, was that it be secular. Meaning, they can’t be in there shoving God up these kids asses. This is based on the “Separation of church and state” philosophy which SCOTUS has several precedents aligned with.

Here’s the rub, the text says, “congress shall make no law…” So this is a bit of a quagmire. Because if a religious school is prohibited by law from getting government funds and/or approval status, one could colorfully argue it’s kinda a law prohibiting free expression.

Anyway, a handful of bible-thumping parents live in some no-school-having shit district in Maine, and want to send their kids to Jesus Christ University. Since Maine law is like, “that’s fine, but you’re paying for that shit yourself, the parents were like, “Fuck y…I mean bless you, you wonderful heathens. We shall see thine ass in court.”

Counsel Michael Bindas

Early in the arguments, counsel for the petitioner (the bible thumpers), Michael Bindas made a clever argument:

This program does not fund schools. And if religious schools were allowed to participate, it does not fund schools.

It funds families. And not a penny can go to any school but for the genuine private choice of individuals.

His argument being, it isn’t that government funds are paying an institution to teach religion. It’s paying families to educate their kids. Those families can use those funds for the school of their choice, so long as they’re teaching the basic requirements expected of a public school. Allowing said parents the “free exercise” of their religion.

While inventive, I can’t help but wonder what requirements public schools have for teaching science, such as evolution by natural selection, and whether these schools are compliant with that? But I suppose, my atheist views are tiresome to these folks.

A panel for Maine, including retired SCOTUS justice David Souter, argued that they’re not excluding the school solely because of their religious backing, but because they’re teaching religion. That if their curriculum were secular, and they left the religious shit to the church, nobody would give a fuck.

Justice David Souter

The opponents are like, “Cute distinction, bro. But there’s nothing in the constitution supporting that logic.”

But Maine was like, “Listen you Jesus freaks. All we’re saying is, if we’re paying for your schooling, it should be consistent with all the other public schools in Maine, so all these kids in Maine get the same basic education. But because y’all are Jesus’ biggest fans, we know you’re not teaching shit like evolution, for instance, because you guys suck at science.”

They argued, “If these assholes lived in a real fucking city in Maine with real schools, they’d get a real education. Not this “creationism” bullshit you’re surely pushing on your poor kids. So if we’re going to fucking pay for it, we expect them to get the same quality education they’d get at a public school which teaches real science. Capiche?”

Justice Kavanaugh hit home the crux of the petitioner’s argument with this question to the respondent (Maine):

Brett M. Kavanaugh

I just want to follow up on that question from Justice Gorsuch. I think it’s important on this public discord or strife issue to emphasize that, as I understand it, they are seeking equal treatment, not special treatment. They’re saying “don’t treat me worse because I want to send my children to a religious school rather than a secular school. Treat me the same as the secular parent next door.”

I think that’s what they’re asking for, is equal treatment. Special treatment cases are where you’re asking for an exemption from generally applicable law.

That’s the Smith kind of cases. Those are hard cases.

But, here, I think all they’re asking for is equal treatment. And the question then becomes public discord from equal treatment. To follow up on Justice Gorsuch’s question, how should we think about that?

Malcolm L. Stewart

I mean, they are certainly characterizing what they are asking for as equal treatment.

But Maine’s view and our view is they are seeking a benefit different from the one that Maine is willing to provide. Maine is willing to provide a secular education, an education that is the rough analog to what the public school would give you at state expense.

It’s not willing to pay for religious inculcation. And so it’s like a case where the school that doesn’t believe in athletics says, I’m being treated unequally because you are willing to fund a thing that is important to some other schools but not to me. That’s not the kind of equal treatment that either the Free Speech Clause or the Free Exercise Clause would prohibit.

The federal government and the National Association of School Boards both filed briefs supporting Maine as well.

Some cases are really complicated, and frankly take me a long time to even make sense of what the fuck they’re arguing over. Usually some stupid procedural bullshit SCOTUS seems to love, because they’re law nerds or whatever. But this one? Pretty fucking simple, yeah?

In a predictable outcome with the now largely religious conservative majority, a partisan 6:3 decision went to the Jesus freaks. I guess the text trumps everything else. Justice John Roberts argued in his majority opinion that if Maine doesn’t like it, they can build some public fucking schools in that area.

The majority’s reasoning is that Maine’s law violated the “free expression” clause for the parents, who want to teach their kids about the ten commandments.

In dissent, the court’s left-leaning justices basically said, “you fucking conservative assholes are so worried about the “free expression” clause, you don’t seem to give two fucks about the “establishment” clause. If the government pays for these kids to go to these schools, government is fucking establishing religious values in these kids.

While I’m not the tenth SCOTUS justice, it is my firm opinion, if Maine had wanted to win this case, it should have gotten some parents who wanted to send their kid to a Muslim school and get government to pay for it, to join these Christians. I’ve little doubt, the majority would have thought much harder about Maine’s argument if they were about to support the teachings of Allah.

You can read about the case and hear oral arguments here at Oyez, and here at SCOTUSBlog.

Average Joe SCOTUS: Shinn v. Ramirez

Back in 1989, all around piece of shit, David Martinez Ramirez decided to murder his girlfriend and her 15 year old daughter whom he admitted to raping multiple times in the past, as well as right before he’d killed her.

Ramirez’s case leaves little doubt to his guilt. He was found with the bodies in his apartment, covered in blood. Along with the admissions of what he had done to the daughter, it’s pretty much an open and shut case.

All Around Scumbag David Ramirez

However, after he was convicted, he somehow got the idea in his head that he got screwed, so he appealed his conviction, and when he lost over and over again, he even petitioned SCOTUS who were like, “Fuck you, buddy. We’re not going to waste our time with this shit. Burn in hell.”

So why is this case here at SCOTUS then?

Well, you see, Ramirez isn’t just a piece of shit morally, he’s also a piece of shit financially. As such, he couldn’t hire an attorney when he got busted, and instead, got a court appointed attorney. And, it wasn’t even a creative one like Saul Goodman, either. His counsel had zero experience in capital crimes cases. And when I say zero, apparently she’d never even witnessed a capital case from the sidelines. Yet here she is, trying to give this mother fucker the best defense money can’t buy.

So after Ramirez predictably lost, he tried to appeal his sentencing for various reasons in state court. He basically was trying to avoid the death penalty, not to get off for the crime as a whole. Unfortunately, none of his claims were about ineffective counsel. This is the start of his problems.

After he lost on appeal, he went to Arizona Supreme Court, and they were like, “Nah fam, we’re good. Not interested. Enjoy those death penalty drugs, bro.”

Getting no help in Arizona at all, Ramirez filed an appeal in federal court. The federal court however looked at everything and was like, “Yo, Ramirez…call us crazy, but we’re pretty sure your lawyer here doesn’t know what the fuck they’re doing. You sure you want to proceed with this idiot?”

At the heart of the federal courts thoughts on this, was that Ramirez was found competent to understand what he did by a psychologist, justifying the death penalty. Basically, they tend to avoid killing someone who they think is mentally handicapped, because it seems too cruel.

But after his conviction, it came to light, that he had been diagnosed as mentally disabled, and suffered severe abuse himself as a child, including that his shit parents didn’t even feed this fuck for days on end.

So the psychologist was like, “Woah, why didn’t you assholes tell me this ahead of time? I’m trying to diagnose this piece of shit. Didn’t you think that’d be clinically relevant to my diagnosis?”

After allowing Ramirez to amend his appeal to include a claim of “ineffective counsel” they found that Ramirez had never complained about this before in state courts. The rules set forth in the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), basically require you to develop evidence for ineffective counsel BEFORE you get to federal court, otherwise, you can pound sand.

As near as I can tell, they’re basically trying to prevent someone about to get the needle from just throwing out any new defense they can think of, clogging up the courts, just to get out of being put to death.

Also, in Arizona, you have to wait until your trial is over to claim ineffective counsel, because they basically assume you wouldn’t have evidence to support this until after the trial is over. Like by some miracle, you might actually win anyway, or some shit. Plus, kinda a big distraction from the trial at hand.

But in a previous SCOTUS case, Martinez v. Ryan, SCOTUS did rule you can bring up an “ineffective counsel” claim at federal court for this first time.

So the contradiction here is that while SCOTUS said you can bring up the claim, AEDPA says you can’t bring any evidence up to develop that claim at federal court. How does that make a lick of fucking sense, right?

So while the state court was like, “We don’t give a fuck. This quack’s new opinion that maybe he was more fucked up than he originally thought, it wouldn’t have changed a fucking thing for us. We can’t wait to fry this motherfucker like a Chicken McNugget,” the federal court, and I mean every fucking judge on the 9th circuit was like, “Woah, woah, WOAH! What the fuck is wrong with you assholes? Look at that shit again. You need to let this motherfucker bring evidence forth to establish this claim of ineffective counsel.”

It’s also worth noting that while SCOTUS long ago ruled you have the right to effective counsel at trial as part of the 6th amendment, that’s AT TRIAL. They don’t seem to have much of an opinion on whether you have such a right after you’ve been convicted.

As for this case, SCOTUS didn’t give a fuck about Ramirez and his guilt. That shit is settled. They’re here to determine this conflict where AEDPA’s rule prohibits a federal court from hearing Ramirez’s evidence for ineffective counsel at trial if it wasn’t done at the state level, while their own precedent says that he can bring up a claim for ineffective counsel.

Counsel for Ramirez closed with a pretty impassioned and fair argument.

Robert M. Loeb

To say that you have a forum for hearing and one where no one’s ever succeeded in to raise an actual innocence claim is not giving you a forum to vindicate one of the most vital rights, the right to effective trial counsel. You know, whether you’re innocent or guilty, you have a right to a fair hearing.

You have a right to an effective trial counsel.

You have a right to have that vindicated. So it’s like them saying, if you’re coaching a basketball game and one team gets five players and one team gets one player and we’re going to play the game, but, at the end of the game, we’re going to give you a shot from half court and that’s going to make the game fair, that does not make the game fair, Your Honor. There is a right to have trial counsel here, and there was never a fair trial for Mr. Ramirez.

Right? And the fact that they give a Hail Mary opportunity for relief at the end of the day or can give a pardon that does not mean that the right to effective trial counsel is being vindicated here. And as Justice Sotomayor pointed out, as a third argument, which pertains only to Mr. Ramirez, which there was no real meaningful response here, because Mr. Ramirez in the appeal before the panel in the Ninth Circuit clearly was relying on materials beyond that which was presented to the state court. And that was not rejected by the state before the panel.

It was not objected to.

They didn’t say, well, (e)(2) bars consideration of that evidence.

They told the panel to consider that evidence. And the panel then went on to render a decision based on the arguments that they made without even them raising (e)(2).

And, of course, then they have the audacity in their cert position, it’s like to say, well, (e)(2) is not even mentioned in the Ninth Circuit decision.

Well, it’s not mentioned because they didn’t raise it. So there it’s completely sandbagged the Ninth Circuit panel here by only raising this in the en banc petition and then their cert petition and blaming the panel for never reaching the issue that they didn’t raise.

They made a decision not to raise (e)(2) before the panel.

That’s a waiver.

It was not fair to the panel.

It’s certainly not fair to Mr. Ramirez. He would have responded to the (e)(2) argument if it was raised before the panel. So, for Mr. Ramirez, you should affirm on the additional basis that the claims against him were waived.

In a 6:3 partisan decision, Justice Clarence Thomas and company sided with Shinn (The state of Arizona). Congress wrote AEDPA, and it says what it says. States are supposed to have power over their jurisdictions vs federal courts. So if they lay out a procedure, and someone they convict doesn’t follow it, well, them’s the breaks.

Justice Thomas basically said, it’s not fair for the federal government to come in and tell the state how to do their business of running a court, conviction, etc., unless it violates the constitution, which nothing here does. That while they did rule in Martinez to allow the introduction of “ineffective counsel” claims, their ruling was quite narrow, and only applied to such claims, where someone was denied constitutional rights, not this shit Ramirez is facing.

It’s also worth noting, about half of Thomas’ opinion cited the heinousness of the underlying crimes, which wasn’t really at issue here, but clearly influenced the majority to not be keen to help this fucker in any way, avoid being put to death.

Kagan, Sotomayor, and Breyer however, were like, “You conservative pricks are racist, and clearly hate Latinos. If someone has shit counsel at the state level, and they don’t really figure it out until the federal level, you’re basically telling them you don’t care about justice, you just don’t want to waste anyone’s time. But this idiot’s gonna die in your interest of saving time, and that’s not cool.

AEDPA tried to set some sort of balance between the state’s rights to manage this shit, and the federal government’s rights to step in, if the state court isn’t acting to the defendant’s liking. But you assholes basically want to let the state do whatever the fuck they want.

Read and out the case and hear oral arguments here at Oyez and here at SCOTUSBlog.