Strap yourselves in for another procedural snoozefest, everyone.
Y’all remember what a royal prick Adolf Hitler was, right? Well, despite the fact that he’s been dead for nearly 80 years, he’s still occasionally a pain in the ass.
You see, in 1900, one of the petitioner’s ancestors, Paul Cassirer bought a painting made by artist Camille Pissarro. Never mind that Pissarro would be a great name for an artist who paints with urine. The painting was called, Rue Saint-Honoré in the Afternoon. Effect of Rain. As Paul got on in years, he passed this painting on to his family member, Lilly Cassirer, in the 1930’s.
A Marching Bunch of Cunts
Once shit started flying in Nazi Germany, Lilly Cassirer, being Jewish, was like, “I gotta get the fuck on up outta here.”
So she applied for permission to leave. In order to be allowed to do so, she “gave” her Pissarro to the Nazi’s. I quote “gave” because it wasn’t really much of a choice, was it? Basically, it was a racketeering payment.
Lilly was successful, and made her way with family to the United States.
Long after Hitler and his merry band of fuckwads were eliminated, in 1958, Lilly successfully sued the German Federal Republic in the U.S. Court of Restitution (Not going to lie, never fucking heard of this court). Germany paid her approximately $13,000 for her troubles, as opposed to returning the painting, because it was presumed the painting was lost.
While you might be thinking, “seems fair enough.” Well, in today’s money, that painting is apparently worth about $40 million. So, adjusted for inflation, the Cassirer family still got fucked.
Apparently $40 million worth of paint and canvas AKA Rue Saint-Honoré in the Afternoon. Effect of Rain
It turns out though, that the painting wasn’t destroyed. Apparently the Nazi’s who took possession of it, passed it around like a porn star in a gang bang. It made it’s way to a California art gallery in 1951. Since there was no fucking internet then, it apparently wasn’t that easy to know it was safely here in the US.
Apparently, many in the US liked cash more than the painting, because it got sold multiple times after arriving here, eventually making it’s way to Missouri in 1976, when Swiss national Baron Hans Heinrich von Thyssen-Bornemisza bought that shit, and had it sent to a museum he put together in Spain.
Working with the Spanish government, he started the Thyssen-Bornemisza Collection foundation (TBC), a museum of fine art, or some shit. Apparently Spain doesn’t give much of a fuck about Germany stealing valuable paintings, because they didn’t bother looking into whether this painting was legitimately theirs to keep, or had been stolen by the Nazis.
Eventually Claud Cassirer found it in a catalog in 1999, and was like, “Well fuck me, it still exists! I’ve been looking for this mother fucker for decades.” So he sent a letter to Spain and the museum, telling them to give him his family’s painting back. Spain and the museum told him to pound sand.
As you can imagine, claims involving foreign governments and entities are fucking complicated. If it’s a hostile government, you’re basically pissing in the wind. But if it’s an ally of the US, they generally try to work with us and achieve a fair outcome.
Thyssen-Bornemisza Museum
So Cassirer went to a federal district court in California, where he lived, and sued Spain and the museum holding the painting, under the Foreign Sovereign Immunities Act (FSIA). This law basically says, foreign countries are not immune from suits where the issue in question involves a violation of international law, such as Nazi’s stealing a fucking painting.
But Spain was like, “Woah! Sure we helped set up this museum, but that’s it. We didn’t steal or buy the fucking painting.” They went on to cite all kinds of reasons why they didn’t feel they were either liable. Their list included that they weren’t the right party to be suing since the museum had the painting, whether Cassirer filed suit in a timely manner, and pretty much any other fucking reason they could think of to get out of this shit. Cassirer acquiesced, and eventually removed Spain from the suit, going after the museum instead.
So now we’re down to two combatants, Cassirer and Thyssen-Bornemisza Collection (TBC) Foundation.
California federal court had to decide, what trumps what—California or Spanish law?
At the heart of this, is Cassirer’s claims that the museum is guilty of unlawful possession and conversion (a fancy term for someone wrongfully taking possession of someone else’s property) under California law, which is a state-law claim, but that we’re in a federal court with a foreign country’s entity, which wants Spanish law to prevail. Under Spanish law, a trial to determine whether the Museum knew it was stolen when they bought it. If not, then they bought it in good faith and they can keep it.
When a person sues in a Federal court because they’re suing a foreign entity, but their suit revolves around a state law violation, there are precedents for this. The Erie Doctrine, from Erie Railroad Co. v. Tompkins, requires state law from the state the suit was filed under to prevail. There’s also a state-choice-of-law doctrine, from Klaxon Co. v. Stentor Co., which basically says the federal court should defer to whatever the state court would have done, looking at whether a California court would use California law or Spanish law.
As is often the case with SCOTUS hearings, we have multiple federal courts who’ve made decisions on shit like this, and at least two of them don’t agree. While most of the circuits held that state-law would apply, those cunts in the 9th circuit, being squarely located in Californistan, with their touchy-feely rules, decided that Spain law should prevail, because America are assholes, and we want to be kinder to our foreign friends. Under Spanish law, they determined the museum was fucking clueless as to it being stolen, so it’s their painting.
While all this shit was going on, Claud Cassirer couldn’t take it anymore and promptly died. So his heirs, not wanting to just walk away from a $40 million dollar painting, are carrying on in his name.
The Cassirers claimed multiple reasons why they win. “If this museum was in California, and the Museum was a Cali museum, we wouldn’t even fucking be here. We’d win under Cali’s unlawful possession and conversion laws. We just needed to go to federal court, because these assholes are in a foreign country with our shit.
They also argue that the US has a long-standing history of states’ rights, which should mean state law applies, and that the FSIA doesn’t really change that.
Then they also threw in the idea that while the 9th circuit’s interpretation may have some merit to it, they’re literally the only assholes who see it this way, and therefore we should ignore them because they’re idiots.
The federal government joined the Cassirer’s in arguing for their case. They added that the FSIA was meant to lay the framework to sue a foreign state, not to demand federal law take over and preempt state laws in the suit. The state is free to apply it’s own law, and the federal government will support them. They also pointed out that other federal tort laws had already been decided by SCOTUS finding in a similar manner. So basically, the 9th circuit once again, finds themselves isolated on an island with zero friends.
Beverly and Claud Cassirer
But the museum, undeterred, fired back with a litany of their own arguments. Basically, the crux of their argument is with the 9th circuit’s claim that Spanish law apply. Since the museum had no idea, presumably because they were too fucking lazy to even bother checking, the Cassirer’s claim is against the assholes who stole it. So they essentially want them to dig up Hitler, and steal it from his tomb, I guess.
As SCOTUS’ nerdiness knows no bounds, the issue of diversity jurisdiction vs. federal question jurisdiction is at the heart of this.
Let’s say some bad shit goes down in California, to a Californian, and it’s at the behest of Spain. In that instance, California law applies, but because we’re dealing with a Spanish entity in Spain, you go to a federal court who will adjudicate the California law, not federal law. They’re only in federal court so it’s one country fighting with the other, not some punk-ass state going after a foreign country. That’s diversity jurisdiction.
Federal question jurisdiction is when the supposed violation violates federal law, the constitution, etc.
So the museum felt the FSIA laws are the laws at question here, and therefore federal law, not state law prevail, meaning Erie and Klaxon are irrelevant. They then brought up foreign policy concerns, as if somehow Spain and the US are going to go to war over a stupid fucking painting. And they ended it all by saying that the FSIA was created so that when going after a foreign agent, there’s one standard, the federal standard, not fifty fucking laws from fifty fucking states. They were like, “it’s way more efficient, bro!”
Counsel for TBC Thaddeus Stauber, in his opening statement laid it out like this:
But for Mr. Cassirer’s retirement to San Diego, California would have no interest in this case. As this Court in Verlinden tells us, the FSIA arises out of Congress and the executive’s shared goals of normalizing relations among nations during the Cold War and bringing the U.S. in line with international law norms, as recognized by this Court in Philipp v. Hungary — Germany. To achieve these goals, the FSIA establishes a federal regime that is intended to ensure fair and uniform treatment regardless of where in the United States a foreign state is held.
Thaddeus Stauber
Despite this colorful argument, the justices seemed to be having none of it. Justice Kagan grilled him on his logic, arguing that the FSIA basically says, unless this is some nation-to-nation dispute that needs to be handled diplomatically, a foreign entity should be treated like any Joe Blow who fucks over some American. Yet good ole Thaddeus Stauber seems to think that his client still seems to deserve some special treatment because they’re not American.
He went on to say, “Listen, assholes. The painting isn’t in California. It wasn’t stolen in California. The defendants aren’t in California. It’s only the petitioner who is conveniently located in California. So if I’m some asshole who wants to sue someone over something I don’t like, and California is the only place that has a law I could win under, by your dumb fucking logic, all I gotta do is move to Cali, sue there, and get my wish. I mean seriously, WTF?”
Justice Breyer however, was also rather unimpressed, giving this testy exchange:
Stephen G. Breyer
Well, so let’s follow through what you say. I see what—I think I see it.
It says the foreign state, Spain, shall be liable in the same manner and to the same extent as a private individual under like circumstances.
Thaddeus J. Stauber
Yes.
Stephen G. Breyer
Your view is the like circumstance is you’re in a federal court.
Thaddeus J. Stauber
Yes.
Stephen G. Breyer
Okay.
Here, they happen to be suing under California law for property law.
Thaddeus J. Stauber
Yes.
Stephen G. Breyer
Conversion, I think.
Justice Stephen Breyer
Thaddeus J. Stauber
Yes.
Stephen G. Breyer
Okay? Fine.
Now let’s see.
So we pretend that we are in a federal court suing for conversion.
How do we get into federal court? I mean, it’s sort of interesting.
I mean, is it supposed to be an arising-under case? Do we pretend it’s arising under? Maybe we should pretend it’s a bank conversion case, in which case maybe the law of the Vatican applies.
I don’t know. I mean, how do we do this? It sounds a little complicated, your view.
At least the opposite view is simple.
You say what it was. It was a state claim.
State claims belong here in—under these circumstances, under diversity jurisdiction, and so we apply California law.
Okay? But what is your view? We don’t even know what the claim is supposed to be.
Thaddeus J. Stauber
Your Honor, we would submit that our view is actually the simpler view because, if you have a uniform federal common law choice test that will apply in all of the federal circuits and therefore apply in all of the 50 states, then you will not end up with a disparity of treatment for a foreign state regardless of where it appears.
Stephen G. Breyer
Okay.
My only problem with that is I can’t think of any private individual who would be treated that way.
Breyer’s point being that because the US tends to favor state law, a lot of laws for common crimes are only written at the state level, so the federal government often doesn’t even fucking have their own separate laws for them. This happens to be one of those cases. Like, he can’t even think of a federal law that would apply here, but clearly Cassirer has a case. They stole his shit!
Thaddeus Stauber went on to argue:
California’s choice-of-law rule test does not take into consideration the very federal and international concerns which are taken into consideration under the federal common law. In other words, in this particular case, California’s choice-of-law test does not take into consideration the Terezin Declaration or the Washington Principles or the Holocaust Era Art Restitution Act of 2016. It does not take into consideration those national policies which formulate the United States’ position that these court — these cases should be brought to a fair and just resolution through some sort of negotiation or alternative resolution in respect for the laws of all states, not just the United States. And by forcing a federal court to use the state law choice, you are in effect handcuffing that federal court judge who is attempting to administer their case in a fair and balanced way to take into consideration these competing interests which are at play in extraordinary expropriation cases.
In the end, SCOTUS was unmoved by Stauber’s creative arguments, and issue a unanimous decision, once again determining the ninth circuit are fucking idiots and should be ignored, Spain and it’s stupid Spanish law can get fucked, and Cassirer made a more compelling argument. So they go back to California to argue their case under California law. If they’re lucky, assuming they win, the painting may be returned to them. Then again, maybe not. Who knows?
We have yet another case were the first amendment’s free speech clause to talk about your stupid religion is at odds with the first amendments freedom of religion clause, which is often interpreted as “Separation of church and state,” despite the fact that it doesn’t actually say that.
In the city of Boston, that’s Bahstin to the locals, their city hall has three flagpoles. The first pole has Old Glory with a POW/MIA flag underneath it. The second pole has a Massachusetts flag on it. Nobody gives a fuck about those two. It’s the third one we need to have a “come to Jesus” about.
While it typically flies the Boston flag, they’re totally OK if you want to fly some other flag on it, like for some local charity, movement, or some other shit. Just submit your stupid fucking petition, and they’ll generally green light that shit and put it up for you.
Bahstin City Hall and it’s miscreant three flags
As is typical in life, good times are often ruined by some cross-waving bible-thumping Jesus freak—in this case, Harold Fucking Shurtleff.
Bahstin had flown a Juneteenth flag, an LGBTQ flag, and even the flag of other countries, including flags from asshole countries like China and Cuba. But along comes Harold Fucking Shurtleff, with a Jesus fish buried in his asshole, and his message that America has lost its way and needs to get right with god. So in 2017, he submits an application to fly his stupid Latin cross flag, because he wanted to hold some Jesus rally that day in the plaza in front of city hall.
Harold Fucking Shurtleff represents a group called Camp Constitution. Don’t even get me fucking started on how a group who says their goal is to defend the constitution seems blissfully ignorant that our forefathers didn’t want religion to be a part of government.
Anyway, back to the case. Greg Rooney, Commissioner of Boston’s Property Management Department, is the dude you talk to, when you want to raise your “I’m going to change the world with my stupid message” flag at Bahstin City Hall.
Over the course of about 12 years, Greg was looser than a twenty-dollar whore. Out of 284 applications, he’s rejected precisely zero of them…until now.
Camp Constitution Jesus Freak Flag
In comes Harold Fucking Shurtleff with his, “I’m going to tell you I care about the Constitution with my group’s name, but what I really want is you heathens to all burn in hell” flag, hoping to fly that shit for a day. I mean, why the fuck not, if we’re going to fly Cuba’s or China’s flag there?
Well, Greg Rooney has heard this phrase, “Separation of church and state,” assumed it was the law, and was like, “sorry dude, we can’t fly that shit here.”
Harold Fucking Shurtleff, apparently having watched way too much Bill O’Reilly, felt that our country was a Judeo Christin country, and we needed to remember that. Despite the fact many of the founding fathers were actually deists, and just believed in a generic god that created the world, and then fucked right the hell off, leaving mankind to do whatever the fuck they wanted.
So Harold Fucking Shurtleff, accuses Greg Rooney of being the devil, and sued him, so he could fly his stupid fucking flag. It’s the American way.
This case is similar to other religious cases we’ve talked about recently, where the “Separation of church and state” interpretation of the first amendment is put under the microscope against the First Amendment’s actual text, and its free speech clause.
The argument is that the First Amendment says, “Government shall make no law…” not “Separation of church and state.” Flying a flag isn’t making a law. So it doesn’t violate the First Amendment’s establishment clause. (The establishment clause is the part about government not establishing religion. That’s just what it’s normally called for brevity’s sake.)
The second argument is that by singling these Jesus freaks out, you’re denying their right to free speech, by using this errant interpretation of the establishment clause.
Harold Fucking Shurtleff (Right)
The argument from god’s soldiers is that denying Harold Fucking Shurtleff and his merry band of Jesus freaks the right to fly their flag, when they apparently let every other asshole fly their stupid flag, denies Harold Fucking Shurtleff his first amendment right to free speech be singling him out specifically because his flag was based on religion.
I’ll say it once, and I’ll say it again, if the government (in this case Bahstin) wants to win these cases, instead of just going after some Christian cause, they need to get a fucking Muslim to apply to fly a flag of Allah on the cross, or some shit. Deny them the right to fly that. And then get the Muslim to join the Jesus freaks in their suit. Once the justices are faced with the idea of a Muslim flag flying, we won’t have to worry about having Jesus shoved up our ass, anymore. No way would they side with a Muslim wanting to fly a flag with “Death to Infidels” on it, or some shit.
As per usual, the reason SCOTUS is hearing this, is because when Harold Fucking Shurtleff sued, a district court told him to get fucked. So he went to the First Circuit US Court of Appeals, and they also invited him to go fuck himself.
As is always the case, these Jesus freaks are fucking persistent, and for whatever reason, SCOTUS just loves these First Amendment arguments, lately. So here we are.
As arguments got underway, counsel for Harold Fucking Shurtleff, Mathew Staver, a man who is efficient with his use of the letter T in his name, was pelted with questions as to whether there is a limit to what kind of flag can be flown there. They asked if an Al Qaeda flag could be flown (no, really they did) for instance.
But Staver, committed to the argument, was like, “they never had any fucking rules. They literally allowed every fucking flag imaginable until my fucking client came along. Apparently his review process was, ‘Is it a flag? Great. It’s approved.'”
After Justice Roberts grilled him on limits, Justice Kagan REALLY went for the extreme hypothetical:
Elena Kagan
Mathew D. Staver
Mr. Staver, just to follow up on the Chief Justice’s question, and this is not this case, but it’s an important question because we have to set lines and we’re giving instruction to cities about how they can create their own policies. And suppose a city thinks two things. It thinks we like this idea of having our flagpole be a public forum and having a wide variety of organizations use it to identify themselves and to express messages, so we sort of like this sort of civic organization kind of activity.
Justice Elena Kagan
But, at the same time, we think that there are limits. So the city has a policy of that kind, and then somebody comes to it and says, we’d like to put up this swastika on your pole.
Does the city really have to say yes at that point?
If it’s a designated public forum, I think the answer is yes.
Elena Kagan
So, really, what you’re saying is that a city can’t possibly have a kind of open policy like this because no city is going to want to put up a swastika or a KKK flag or something like that.
So, really, what you’re saying is that this is just a kind of policy that a city can’t have?
Mathew D. Staver
No, Justice Kagan.
In fact, the City could have a more limited policy.
It didn’t choose to do that. Now the City’s brief tries to indicate certain limitations on categories of subject matters.
But that’s nowhere to be found in the 12-year or 13-year policy, and it’s not in the 2018 codification of that policy anyway. That is not limited to subject matters or speaker identity.
If the City wants to open up a forum but limit it to certain kinds of subject matters or speakers, certainly, the City is capable of doing so.
Counsel Mathew Staver
So Staver’s argument is that if the city had put some boundaries on this shit early on, and wrote that shit into some sort of code for what flags they will and won’t raise, then that’d be all Cool & The Gang. But instead, those lazy fucks couldn’t be bothered, and just we’re like, “Meh, approved.” 284 times, until our client, Harold Fucking Shurtleff rolled up with his Jesus flag, and all of a sudden, they’ve got a fucking problem.
He was like, “These mother fuckers just hate Jesus. That’s what this is really all about.”
Justice Kagan, ever the skeptic, wasn’t done with counsel Staver, though. She went on to ask:
Elena Kagan
I guess, though, that one of the points that Justice Breyer was making is, if you’re on the street in Boston and looking over to City Hall and see these three flagpoles, and now you say there’s maybe a fourth, but the three are sort of together, you know, why would you think that this is anything other than government flying a flag?
Mathew D. Staver
I think, when you look at that, Justice Kagan, you’re going to see, one, that’s clearly government speech, as Justice Barrett was referring to in terms of limiting. You have the United States flag always up, and underneath it is always the POW/MIA flag.
It’s always there.
That’s clearly the government’s speech.
Elena Kagan
Right.
And then there’s the Commonwealth flag.
And then there’s this third flagpole.
And you’ve walked the street many times and mostly you’ve seen the City of Boston’s flag on it, but occasionally you see another flag on it.
Why wouldn’t you think that this is the City of Boston deciding to put up a substitute flag for its own purposes?
Mathew D. Staver
Because an informed observer would understand the history, the policy.
Elena Kagan
Well, that is very, very informed.
I mean, that is not your typical person who walks the street in Boston. And, you know, all they know is, I’ve seen the City of Boston flag here a thousand times, and now I see another flag.
It must be the City of Boston decided to do something else today.
In rebuttal, Staver’s argument was like, “Listen, generally these fucking flags flown are in conjunction with some even in the plaza, or a particularly special day, to which people would know, the flag is flying in relation to that thing. Many of which aren’t governmental things. So anyone with half a fucking brain would know this wasn’t government sending a message, but instead, government allowing the people to promote whatever bullshit they want to promote that day.”
Seems like a stretch to me. Honestly, I’m surprised that the city can’t just be like, “Hey, if someone wanted to put a flag up of someone’s asshole, we’d have rejected that, too. It’s just that most people fucking know what’s appropriate in a setting like this, and Harold Fucking Shurtleff is just the first idiot to decide to push the envelope.”
In response to the petitioner’s the city’s counsel Douglas Halward-Driemeier opened with this:
Mr. Chief Justice, and may it please the Court: The sole issue here is whether the City’s decision to lower Boston’s flag from the City Hall flagpole and raise another in its place is the City’s own speech.
If so, then, as Summum held, the City is free to select the views it wants to express. If, however, the flag-raisings were private speech and the flagpole had become a public forum, then the City agrees that it cannot exclude Petitioners’ flag. Thus, whether the flag-raisings were government or private speech is dispositive. The facts here are at least as supportive of the City as in Summum.
And Petitioners’ counter-arguments rest upon a caricature of the actual events. First, Summum held that exercising final approval authority constituted effective control.
Petitioners stipulated at Pet. App. 149a that before “final approval,” any flag-raising, Commissioner Rooney “must review whether the City’s decision to raise a flag is consistent with the City’s message.” As in Summum, there is no record of prior denials but also no record of flag-raisings inconsistent with the City’s message.
And, unlike Walker, there are no purely private messages. Second, Summum looked to the general practice of governments erecting monuments. And, similarly here, governments speak from government-owned flagpoles.
That is what the observer would expect.
Whereas Pleasant Grove made no express statement of its message, here, the City has.
It has a specific policy with respect to foreign flag-raisings, and it has issued resolutions in connection with others. Third, as in Summum, the — it would defeat the flagpole’s essential function as the City’s bully pulpit to treat it as a public forum.
Douglas Halward-Driemeier
The City cannot effectively use its flagpole to communicate its own message if it must remain neutral and also carry the opposite message. Private parties are free to wave their flags on City Hall Plaza or even raise a temporary flagpole there, but they cannot commandeer the City’s flagpole to send a message the City does not endorse. I welcome the Court’s questions.
And I’m happy to address some of the questions
Counsel Driemeier for Bahstin went on to establish that there was an established policy, and it was also on their website. Alluding to my earlier point, that their argument should just be, that the reason they approved everything else prior to this, was because up until this asshole showed up, no one tried to put anything up there that violated our policies:
So, Your Honor, to be clear, the City policy, which appears at Joint Appendix 569, states that the City, through its Commissioner, may allow raising of flags to commemorate an event or occasion.
And that’s one bucket that we’ve described, these holidays or other similar events or occasions. Also, on the City’s website, there is a statement of the goals of the flag-raising program, and it says, we commemorate, we, the City, commemorate flags of many countries.
We want to create an environment in which everyone feels included.
We also want to raise awareness in Boston and beyond about the many countries and cultures of the world.
Our goal is to foster diversity by celebrating the communities within Boston. So the foreign nation flag-raising is described in the goals.
It’s on the City’s website.
The policy states we do this in commemoration of events or occasions.
And so the categories we’ve given are explicit there. And, moreover, the rules are actually a subcategory.
The policy incorporates the rules.
And then, under the rule/policy, the first rule is that we, the City, will not put up a flag that is discriminatory, offensive, or that supports religion. The City is going to stay silent, neutral, with respect to religion. We’re not going to support a religion.
Neither will we offer something that is derogatory of religion.
And that’s consistent with the principles of the Establishment Clause.
Justice Alito took counsel Driemeier to task, and posited a hypothetical that what if someone wanted to give a speech in front of city hall, and that speech was a religious speech?
But counsel rebutted that the difference is, that instance would be a person giving a speech in a place where they’re typically allowed to protest government and such, and therefore that’s OK. Because like all rights, it simply requires that government to do nothing.
In this case, the government has a flagpole, and it literally raises and lowers it’s flag, and puts up whatever stupid fucking flag they agree to put up for you. So this requires government to do something—lower their flag and raise yours. That’s what makes it different.
Justice Kavanaugh, apparently growing tired of these cases about the Establishment Clause, basically was like, “Listen fuckhead, haven’t we answered this shit in multiple other cases? Letting religious people be heard on government property, isn’t a violation of the fucking establishment clause. There are so many more interesting things I could be doing with my life right now, than answering this question again and again and again.”
I’m paraphrasing, but you can read the transcript and see I’m not that far off.
Counsel went on to point out that had Harold Fucking Shurtleff just brought some flag for his Camp Constitution group, that didn’t have a fucking cross on it, or at least, if he hadn’t written into his petition that he was specifically asking for a day to get with god, we’d have totally let him raise that shit. It’s just his religious message we don’t want on our fucking lawn.
In a rather surprising unanimous decision (not surprised with the decision, but that it was unanimous), SCOTUS sided with Harold Fucking Shurtleff. They argue that this third-flag program isn’t the government endorsing anything, it’s just a friendly thing they do for Bahstonians, and so denying Harold Fucking Shurtleff his right to fly his stupid fucking flag, is a violation of his first amendment rights to free speech.
Part of the problem for Bahstin, the court reasoned, was that up until new, Greg Rooney had a 284 to zero record, in allowing flags. So the fact that he decided to reject this one, was clearly aimed at denying Harold Fucking Shurtleff’s right to free speech, based on religion. If they had a history of rejecting others that were controversial for whatever reason, they might have won this shit.
SCOTUS also reasoned that this was not historically considered the opinion of the city, when flying these flags. It was always well understood it was just random Bahstonians and their stupid causes. So if the city isn’t pushing the agenda of the flag, then it’s not a 1A violation.
Bahstin Flag
Justice Gorsuch, in his concurring but separate opinion whent on to criticize “The Lemon Test.”
The Lemon Test is an old 1971 SCOTUS precedent, related to a case, Lemon v. Kurtzman. Also a religious speech case.
You’ll often here the term “test” in court cases. All that means is, when considering how to decide, the court asks a question, which becomes a dividing line for how they would choose. So for instance, a test might be, “was the speed at which you were driving above the speed limit?” If so, you’re guilty, if not, you’re AOK. That question is the “test.”
Make sense?
So the Lemon Test, was created in the decision of that 1971 case, and it goes like this:
Laws (1) must have a secular legislative purpose; (2) must have a principal or primary effect . . . that neither advances nor inhibits religion . . .; (3) and must not foster ‘an excessive government entanglement with religion.
So the idea was, that when considering religious first amendment cases, SCOTUS or any other court, going forward, should apply that test.
Well, here we are, 52 years later, and Justice Neil Gorsuch is like, those old bastards were idiots, and that’s a stupid fucking test. We shouldn’t bother with that shit anymore. While Justice Thomas joined him in this separate opinion, they were in the minority in overturning Lemon. They just all agreed in this case, Harold Fucking Shurtleff wins.
As a result of all this nonsense, Bahstin has enacted a new policy, in which Harold Fucking Shurtleff still loses, but now he has a law written especially for assholes like him, to cite as to why he loses. Seems like a lot of work to lose anyway. But in the interim, he did get to raise his dumb fucking flag once, anyway.
Hello, SCOTUS nerds. In today’s episode of “How Fast Can I Put You To Sleep?” we have a monstrously boring procedural issue at play.
The basic idea is that Boechler P.C., some podunk Fargo North Dakota law firm (yes, that Fargo), submitted the taxes they withheld for their employees, but apparently their accountant sucks royal ass—making a good number of mistakes in their submission to the IRS.
So the IRS sent Boechler a letter saying, “Hey, you’re into law? So are we. Cool-cool-cool. Hey, um…we couldn’t help but notice your accountant’s math is about as accurate as a storm trooper’s aim. They kinda fucked up your employee’s tax withholdings. But it’s all good, we don’t want no trouble or anything. Could you please just correct it, and resubmit it. Thank you so much. Call us sometime. Toodles!”
Jeanette Boechler
Here’s the rub, not only is Boechler’s accountant trash, but apparently their mailroom sucks balls too, because they got the letter, and either lost it, or just didn’t respond to it all.
So the IRS got their feelings hurt at this point because they were ghosted by Boechler. Since they’re whiny little bitches, they wielded their superpower to fine people for shit they don’t like, hitting Boechler with a 10% “We got our feelings hurt” fee, amounting to a little over $19,000.
In a rather admirable move, Boechler, ever the master ghosting artists didn’t respond to that shit either. Apparently there are a lot of people in North Dakota who need lawyers, and they’re just to busy to deal with the IRS’ shit right meow.
So now the IRS’ feelings were REALLY hurt. This time, they’re like, “You know what, fuck you. We didn’t want to talk to you anyway. But we want our $19,250, so we’re levying your ass, and we’re just going to conveniently pull that shit right out of your bank account. How do you like dem apples, mother fucker?”
Knowing that they were going to be stuck paying this shit, Boechler finally decided to respond. They started off by saying, “First of all, fuck you. And fuck your petty-ass fine, too. We’re submitting a request for a “Collection Due Process” (CDP) hearing. We’ll see you cunts in tax court.”
They were told in the notice they received from the IRS they had 30 days to respond. The deadline according to the IRS, was August 28th, 2017, 30 days after they mailed that shit out. Boechler, being the consummate troll, mailed that shit August 29th, 2017, precisely one day late, by the IRS’ definition.
So you’re probably wondering why SCOTUS is involved with this shit, right? Well, we’ve talked before about how SCOTUS loves nerdy shit. Well…here comes the nerdgasm.
You see, that 30 day time limit that required they respond by August 28th…it’s debatable when the clock starts on that 30 days. The IRS argues it starts as soon as they mail it. But Boechler, being a law firm, loves to fucking argue with anyone they can. It’s what they do.
So they were like, “Listen you IRS cunts, I don’t know if you’re aware of this, because you’re an incompetent bunch of government hacks, but there’s another group of incompetent government hacks called the United States Postal Service. And it might come as a surprise to you dumb fucks, but they don’t deliver mail instantaneously like an email. It takes them several days to bring that shit to us. As such, we think the 30-day response limit should start from when we received your letter, not from when you sent it. I mean, how does that make any fucking sense? We’re not fucking psychics. We don’t know you even fucking mailed a letter until we receive it. So this is some straight up bullshit.”
*Mic drop*
The issue at hand for SCOTUS to decide, is a legal principle called “Equitable Tolling.” It basically means that in instances like this, where there’s a time bar (a legal term for a time limit), the courts have the authority to decide when the clock starts, stops, and even sometimes when it pauses.
The U.S. Courts of Appeals for the 8th and 9th Circuits were like, “Fuck Boechler. Rules are rules. The court hearing Boechler’s argument lacks jurisdiction to allow for equitable tolling.” But then along comes the U.S. Court of Appeals for the District of Columbia Circuit, and they’re like, “Whoa, you assholes. Boechler has a fair fucking point. They filed an appeal, and the court should absolutely have the right to apply equitable tolling if they think it’s appropriate.
So the question before SCOTUS is whether the U.S. Tax Court has the right to apply equitable tolling in this case, and potentially grant relief to Boechler, extending their deadline to 30 days after they received the letter, as opposed to when the letter was sent.
As arguments began, one sticking point was in the tax code itself. Code 26 U.S.C. § 6330 (d)(1) says the following
The person may, within 30 days of a determination under this section, petition the Tax Court for review of such determination (and the Tax Court shall have jurisdiction with respect to such matter).
So the IRS is arguing that this 30-day time bar written into this statute is as solid as an 18 year old boy’s dick at a strip club in this wording, and only if the person files within 30 days (by the IRS’ definition), can a tax court opine on whether this person owes the IRS their fines and shit. But because that shit is worded before the part in parenthesis giving the tax courts jurisdiction, it means the tax courts don’t have jurisdiction on the time bar, and thus can’t grant equitable tolling.
But those creative legal fucks at Boechler argue that the part in parenthesis about the Tax Court having jurisdiction, applies to everything, including whether or not to grant equitable tolling.
So when I say SCOTUS loves nerdy shit, I’m going to tell you, I’m serious, y’all. They spend a LOT of time debating why Congress would put this shit in parenthesis, and how that mattered in the decision of this case.
To begin arguments, counsel Melissa Arbus Sherry opened with this:
Mr. Chief Justice, and may it please the Court: This Court has repeatedly held that time limits are rarely jurisdictional and that if Congress wants to make them jurisdictional, it has to speak clearly.
Section 6330(d)(1) does not have the needed clarity. The first clause reads like an ordinary statute of limitations.
It says what the taxpayer may do, and it says nothing about the Tax Court’s jurisdiction.
The second clause does speak to jurisdiction, but the only reference back to the first is through the two words “such matter.” Now we think “such matter” refers to a petition to the Tax Court for review of a CDP determination.
The Commissioner agrees, but he says it also refers to the 30-day deadline to file that petition. Our reading is more natural.
It stops at the closest reasonable antecedent, and it uses the word “matter” as it’s ordinarily understood.
The Commissioner’s reading requires more work, and it requires this Court to treat the time limit the same as subject matter in the context of subject matter jurisdiction.
If nothing else, it is far from clear. The statutory history resolves any doubt.
Melissa Arbus Sherry
As originally enacted, the same time limit governed the Tax Court and the district courts and it was not jurisdictional.
The relevant language has not changed.
It has to mean the same thing today as it did in 1998. Congress enacted this collection due process regime in order to protect taxpayers from IRS abuses.
It would not have included a rare and harsh jurisdictional deadline to close those courthouse doors, let alone through a vague parenthetical reference to “such matter.” And equitable tolling easily follows from that.
That is the presumption, and it is not overcome here.
The limitations period looks just like the one in Irwin, and it looks nothing like the deadlines in Brockamp.
The CDP regime is remedial, and it is a place where equity finds a comfortable home. I welcome the Court’s questions.
By and large, the justices seemed to accept counsel Sherry’s argument, not really seeming to argue against her in any way. They all seemed of the opinion that the wording of the statute could have specifically addressed time bar jurisdiction, and it didn’t, leaving the idea of equitable tolling open to the Tax Court which has jurisdiction otherwise in this statute.
Justice Clarence Thomas
For the IRS, counsel Johnathan Bond argued that the statute above basically says that the Tax Court has jurisdiction over their CDP claim, if it’s filed within the time bar, meaning that the time bar is absolute, and only if they submit it on time, can the tax court give their opinion. So if this is true, then the tax court can’t fuck around with no equitable tolling.
Justice Thomas chimed in immediately and asked if there was ever an instance where equitable tolling was considered for such cases.
This started off a fairly interesting exchange between counsel Bond, and Justices Roberts and Barrett:
Jonathan C. Bond
Yes, there are statutory grounds for tolling that apply that are different fundamentally from equitable tolling, and if I could address those specifically. There’s one in this provision itself, 630 — 6330(d)(2) for cases of bankruptcy. There are also general statutory tolling provisions that apply to this and many other provisions in the code for cases where a person is in a combat zone or a disaster area. What’s fundamentally different about those — about each of those areas is that the information the IRS needs to know in order to determine whether it can proceed with collection is in its possession and is automatically processed by its system. The IRS gets monthly data from the Department of Defense on whether someone is in a combat zone.
It has — its systems automatically query whether someone’s ZIP code is affected by a disaster declaration.
And the IRS is served with a bankruptcy petition and knows whether to put a freeze code on that person’s account. Equitable tolling is fundamentally different.
Jonathan C. Bond
And the open-ended exception that I think Petitioner is proposing would not be workable for the IRS because, when the IRS issues these 26,000-plus collection due process determinations, it would have no way of knowing whether a particular taxpayer who doesn’t pay or doesn’t file their petition on time is subject to an equitable circumstance or an extraordinary circumstance that stands in their way.
John G. Roberts, Jr.
They get monthly reports from the Department of Defense over who’s in a combat zone?
Jonathan C. Bond
They receive monthly data from the Department of Defense that is — that flows into the IRS’s data system, that’s correct.
John G. Roberts, Jr.
Well, how do they even know that — I mean, when do they find out? I mean, nobody knows if they’re going to make — file a claim for something until they file a claim. I mean, I — I’m just — there are a lot of people, and the Department of Defense — I — I — I just am struck by the difficulty that that presents and want to make sure I understand what’s involved.
Jonathan C. Bond
Sure.
As — as — as we understand it, the Department of Defense provides this data that goes into the IRS’s system addressing taxpayers generally, not just those —
John G. Roberts, Jr.
Taxpayers generally? Like every taxpayer in the country?
Jonathan C. Bond
Those — those who are in combat zones, that data is provided by the Department of Defense.
John G. Roberts, Jr.
Chief Justice John Roberts
So there is somewhere in there something said, you know, Fred Smith not in combat zone.
And we don’t even know if Fred Smith’s going to file something in the Tax Court or not.
Amy Coney Barrett
And do you cross-reference it when the list comes in and — and — and —
Jonathan C. Bond
Yes, this is processed by the IRS’s computers.
And that — that’s because this doesn’t just affect collection due process but a number of other deadlines and provisions in —
John G. Roberts, Jr.
Yeah, I know. But my point is that your name is there even though you’ve got nothing to do with — there’s no reason the IRS should worry about you, or —
Jonathan C. Bond
Well, if you’re a taxpayer. It’s not all persons generally but all taxpayers.
John G. Roberts, Jr.
Wow. Okay.
So let me summarize what was said here and what his argument is. He’s saying the fucking IRS gets monthly reports from the government as to who is going through bankruptcy, who’s in a combat zone, or who is in a disaster area. Even if they don’t owe the IRS a fucking dime. Sounds like a big fucking list, yo.
The IRS then cross reference that with all the fuckwads they think owe them money, against this grand list of people who are going through some shit, and any matches they find, they’ll cut them a little slack on that 30 day time limit. Everyone else? Fuck ’em.
“Wow” indeed, justice Roberts. “Wow” indeed.
I don’t know about you, but this seems like a pretty crazy system the IRS has set up, just to determine who can get a little leniency on the 30-day time bar.
Justice Breyer also seemed to think counsel Bond might have been hitting the crack pipe before he walked into the court room, because he took him to task on his knowledge on the meaning of words. See, counsel Bond argued that the tax court’s ability to hear a CDP petition rests on the “timely” submission of the request, according to the statute. So he thinks that means that “timely” must be settled first, before the tax court gets involved. But justice Breyer seemed to be having none of this shit:
Stephen G. Breyer
Justice Stephen Breyer
So does that mean it’s well established — look, the obvious thing in English — I don’t know about the last antecedent rule and so forth, but — but just in ordinary English, it says here “such matter.” Okay? Now that could refer to the appeal of such determination, or it could refer to the appeal of such determination filed within 30 days.
Okay? Now I think that was Justice Kavanaugh’s point.
And it got me why it couldn’t refer to either.
And — and then, if you go back to (e), it does say timely, but, I mean, you go back to laws — Black’s Law Dictionary, I don’t know, maybe you go back to Justinian, and it says what tolling does is it stops the clock.
Okay? It stops the clock. So, if you do have tolling and you stop the clock for three days because the person involved was very ill or his family was or something, and the best reason in the world he couldn’t get to the post office, there was black ice everywhere, I don’t know, but then it stopped three days later.
Okay? Then it was timely when he got around to filing it, and they excused it. I mean, can’t it be read that way? I mean, I guess everybody’s asking the same question, just emphasizing “can’t.”
Jonathan C. Bond
So I don’t think “timely” in (e)(1) can mean that —
Stephen G. Breyer
Why?
Jonathan C. Bond
— again because — because — again, for two reasons.
First, that’s not how this — that’s the opposite of how this Court has described the effect of tolling in the equitable tolling context on which Petitioner relies.
And in this particular provision, where Congress is saying a timely petition is a jurisdictional prerequisite, it’s passing strange for Congress to say timely when they — if what they meant was timely only by operation of equitable doctrines that do not apply to jurisdictional prerequisites. So I think that argument just doesn’t hold.
Stephen G. Breyer
The law dictionary says equitable tolling is a court’s discretionary extension of a legal deadline.
So they extended the legal deadline, and, therefore, it is timely.
Justice Breyer, hearing his arguments, and clearly not being too impressed by them, went on to ask, “OK, you dumb fuck. Let me ask you this. If we side with Boechler, explain to us exactly what bad shit is going to happen to the IRS as a result?”
Counsel Bond resonded:
So I would point you to two things, one specific to this context and more a — a broader concern of spillover effects in the code. The specific consequence here is that if tolling is available, then when the 30-day deadline to petition runs, in the 26,000 cases where the IRS issues these determinations, it then will be in a state of uncertainty about what, if anything, it can do to collect because it will know that a taxpayer may file a late petition, assert tolling, and months or years later a court will conclude that tolling was, in fact, available.
And I think that puts the IRS in an impossible position. More broadly, I would — I would point the Court to spillover effects of interlocking relationships in the code.
The Ninth Circuit, in the Organic Cannabis case, pointed to an illustration of this if you apply Petitioner’s approach to Section 6213(a) governing deficiency.
And that’s 95 percent of the court’s docket.
And they explained that if you apply equitable tolling there, because of the interrelationships of the code, you’ll end up harming taxpayers by precluding them from seeking — or from bringing refund suits. The Taxpayer Advocate has acknowledged that
Counsel Bond seems to be arguing that the time bar is paramount and absolute, and thus not available for tolling, because congress knew it would cause the IRS to wonder if and when it’s gonna get fucking paid. Congress needs that money, yo! They argue if tolling is allowed, then when someone fails to respond, the IRS will have to sit around with their thumbs in their asses, waiting to see if these deadbeat tax-dodgers are going to ask for equitable tolling. The IRS would much rather be stealing money out of these fuckers’ bank accounts than engaging in some thumb ass play, as appealing as that might sound.
In a unanimous decision, siding with Boechler, SCOTUS told the IRS that while their argument was wildly creative, they’re basically a bunch of fucking idiots. Apparently, SCOTUS are no fans of the IRS, nor the 8th and 9th circuit of appeals.
They argued that the law in question could have been written by congress in such a way as to make it clear who has jurisdiction over these time bars, and congress didn’t. The idea that the statute above somehow means that the tax court can’t opine on whether equitable tolling is warranted, is absurd. When they wrote “Such matter” into the clause giving the tax court jurisdiction, they could have excluded the time limit, and they didn’t. So “Such matter” can and should include the time limit.
SCOTUS is apparently not much of a fan of those lazy fucks in congress either, because this ruling basically says that going forward, if congress wants to limit who has jurisdiction to apply equitable tolling, they had better fucking do so explicitly, otherwise all the courts who have jurisdiction to hear the case, can consider equitable tolling. When they use ambiguous terms such as “Such matter” they leave their laws open to interpretations they may not have intended, and thus we’re sick of having to sort their shitty laws that appear to have been written by a fucking twelve year old out.
Part of their argument also seems to be that equitable tolling is an important part of judicial review. As such, it must be the default position that courts may consider tolling, until congress specifically writes otherwise, for whatever dumb fucking reasons they can think of.
Maybe the IRS will be a little more efficient now, too. Since they won’t have to do any more crazy cross-referencing.
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.
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
Okay.
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
Really?
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.
Okay.
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.
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.
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.
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.
log·i·cal: capable of reasoning or of using reason in an orderly cogent fashion lib·er·tar·i·an: an advocate of the doctrine of free will; a person who upholds the principles of individual liberty especially of thought and action
The Logical Libertarian™ 