Tag Archives: logical libertarian

Average Joe SCOTUS: Ysleta del Sur Pueblo v. Texas

For most Americans, what they know about Native Americans is what they learned in history class, and that those fuckers love to gamble. More specifically, they love to open places for American tourists to gamble—that shit is profitable as fuck, and these reservations really need the scratch. Apparently, it’s way better than opening an iPhone factory or some shit. Also, I’m guessing that the reservation’s rules don’t really allow them to open a factory there, but I could be mistaken.

Before we dig in too much, it’s important to point out the difference between a law and regulation. I’m guessing if you’re reading this, you already have more than a passing interest in government, and probably understand the difference, but still, for the weary traveler who stumbled on this page by mistake, and just decided, “Aw fuck it. I’m here, might as well read on to the end,” this is for you.

While I’ll talk about this from the point of view of the federal government, it’s just as true for states and local governments, too.

A law is some rule passed by congress that sets framework for what you may or may not do, or more specifically, creates an invisible line between, “I can get arrested for this, I cannot get arrested for this.”

Library of Congress

Regulations however, are more complicated. Regulations start with congress passing a bill to create a regulatory agency, such as a federal gaming commission. Once that entity is created, the president (or the executive) appoints a head of that agency, which congress then approves. That head of the agency then hires minions to do his or her bidding.

These regulatory agencies are generally created to handle areas which require expertise that congress doesn’t have. They’re all mostly lawyers, so their expertise is generally limited to law.

In our example, they’re not experts on gambling, how people and casinos might cheat, how games should fairly be played, etc. So this head of the gaming commission would typically either be an expert themselves, or a good leader who hires experts to advise them.

Those experts that work for the agency then write regulations for the area they’re tasked by law to govern. Regulations largely carry the same weight as laws, as they’re backed by the laws that created the agency that wrote them. So if you violate a regulation, you’re still penalized by the law authorizing the creation of that regulation. Make sense?

Now, we talked about how Native Americans love to open casinos. This started back in the 1970’s when a Seminole tribe in Florida apparently smoked a shit ton of peyote and were like, “Dude, we should open a fucking casino.” It made a fortune, and so Native Americans all over the country collectively thought, “Wait a minute, there’s a way we can bilk the non-natives out of a lot of their cash, and they’ll be happy we did it? Tell me more!” The golden rule of casinos after all, is “the house always wins.”

In general, in order to repay Native Americans for the ways the US Government has fucked them over the years, we created tribal reservations and let them govern themselves to some extent. However, there’s always this push and pull about how much autonomy they have, versus how much the state they reside in, or the federal government may impose on them. This is the heart of our case, here.

Back in 1987, in California v. Cabazon Band of Mission Indians, SCOTUS basically said that if the state outright bans a particular means of gambling, the Native Americans can’t just do that game on their land. But if the state has regulations around that game, allowing it to be played within the state, so long as it’s within their regulations, then those regulations don’t apply to the Native American’s casino—they are free to regulate their own shit. This precedent later became law when congress passed the Indian Gaming Regulatory Act (IGRA), which incorporated much of the language from the Cabazon Band ruling.

Texas, a state that claims to be all about liberty, except for pregnant women, LGBTQ folks, and Indian casinos apparently, wants to regulate the Native American casinos. Specifically, the reservation belonging to the Ysleta del Sur Pueblo tribe, which has a Bingo-themed casino. But they know based on IGRA, they’re not allowed. So they’ve decided to get creative in their legislation.

Ysleta Del Sur Pueblo

Yselta’s casino has both traditional “live call” bingo, and bingo machines, that are basically slot machines, but for old people who play bingo. However, Texas law only allows bingo to be played with real money, when it’s for a charity, and shit like that, not as part of a profitable business model.

Back in 1968, realizing they had bigger fish to fry, like putting a man on the moon, congress had transferred it’s trust relationship with the pueblo tribes in the Texas area to the state of Texas. But in 1983, Texas courts ruled that transfer violated the Texas constitution, so they were like, “Nah, federal government, they’re your problem.” So the trust was transferred back to the US Government, who shortly after the Cabazon ruling, passed the Restoration Act, resuming control of that trust.

Texas argues that the Restoration Act has language that basically invalidates the Cabazon ruling, meaning they can regulate the fuck out of the Ysleta bingo game. Remember, bingo is legal in Texas, they just regulate it. If it was illegal, the Ysleta tribe would be out of luck, and that shit wouldn’t be allowed at all.

As the good folks at SCOTUSBlog laid out, the relevant passages in the restoration act are these:

First, Section 105(f) grants Texas “civil and criminal jurisdiction within the boundaries of the reservation as if” Texas were subject to Public Law 280. Second, Section 107(a) provides that “[a]ll gaming activities which are prohibited by the laws of the State of Texas are hereby prohibited on the reservation and on lands of the tribe.” Third, Section 107(b) provides: “NO STATE REGULATORY JURISDICTION. — Nothing in this section shall be construed as a grant of civil or criminal regulatory jurisdiction to the State of Texas.”

Public Law 280 was the law that allowed states to ban certain types of gambling on Native Reservations, so long as they were banned outright in the state.

Ysleta Del Sur Pueblo Native Americans performing tribal dances

So Texas’ argument is pretty fucking creative. They say that 107(a) allows them to ban any form of gambling that they have deemed by regulation, as improper. That 107(b) is just about regulations in general, and isn’t about gambling, and thus largely irrelevant.

The Pueblo however, think Texas are fucking idiots who apparently can’t read a law. That clearly, 105(f) in their estimation, means Texas is bound under Public Law 280, and as such, anything that falls under Texas regulation, vs Texas law is like Teflon to the Native Americans. That shit don’t stick.

I’m not sure if I can explain this in a way that makes sense, but I’m sure as fuck going to try.

You know how I love when the justices give hypotheticals, right? Well, I’m going to take a crack at that shit. Bear with me, I’m new at this.

Remember first, that the way the law reads, Texas can ban a game at the casino which they’ve banned in Texas everywhere else. But if they allow a game and merely regulate it, they cannot impose those regulations on the casino.

So here’s my hypo: Imagine there’s an overarching game with certain basic principles, and it’s called Bingo. But then there’s different versions of Bingo, we’ll say there’s one with 50 numbers, and one with 60 numbers.

Now imagine Texas allows Bingo to be played in Texas for money, but their regulations only allow it if it’s the 50-number variety.

In this example, Bingo is legal in Texas, but it’s regulated to the 50-number version.

So Texas’s argument in this hypothetical is that because their regulation prohibits 60-number Bingo, they think that gives them the right to ban it at the casino, because they have “banned “prohibited” it everywhere else in Texas.

The Pueblo people on the other hand, say “Hey look, you Texas assholes. You do allow Bingo in your fucking state, you just regulate certain types of it. So it isn’t fucking “prohibited” in your state, which means you can’t regulate what version we decide to offer.

So where Texas thinks regulations can be related to prohibitions, Ysleta basically argues they’re mutually exclusive.

Make sense? God I hope so. I don’t know how better to explain it, if not.

On to the arguments!

Justice Roberts, seeming skeptical of Yselta’s argument that prohibited means prohibited entirely, not just by regulation asked this question to Ysleta counsel Brant C. Martin:

I was just going to say I don’t know who you’re including in everybody here, but it says prohibited.

Chief Justice John Roberts

And just—I mean, if you had—under Texas law, you can have bingo games sort of up to $100 at stake, okay, and then what’s happening is the tribe is having bingo games up to $1,000. Now, if you told somebody that, that they have games up to $1,000, it would be perfectly natural for that person to say, well, that’s prohibited because there’s a $100 cap.

But counsel Martin fired back, and was like, “Dude, did you read the court’s opinion in Cabazon? I included it in my fucking briefs. Your predecessors specifically made this distinction already. I’m not reinventing the fucking wheel, here. I didn’t just make this shit up.”

But Justice Kagan, who fucking loves to argue (don’t know if I’ve mentioned that before), hit back with this:

Well, suppose that that’s right, Mr. Martin, but I think what the Chief Justice is suggesting is that it’s not the normal term—use of the term “prohibited.” What you’re really relying on is the idea that Cabazon turns this language into a kind of term of art and that Congress was aware of that and that when Congress used the word “prohibited” it was incorporating this distinction that had been made in Cabazon.

And let’s say that your argument really does depend on that.

It’s not the normal use of the word “prohibited.” It’s a Cabazon use of the word “prohibited.” So then the question is, what’s your best evidence that this Court—that the—that Congress, when it passed this statute, really did have Cabazon in mind rather than was using the normal use of the word “prohibited”?

Associate Justice Elena Kagan

Her argument being that Ysleta’s argument relies on the idea that congress adopted the Cabazon ruling’s definition of prohibited, but that those fucks in congress don’t necessarily give a fuck about what SCOTUS says or does. They’re grown ass men and women. They may have decided they didn’t like Cabazon, and wrote the law with a more normal usage of prohibited as Justice Roberts laid out.

But counsel Martin was undeterred. He was like, “Listen, you argumentative old hag, the language in the law, specifically 107(a) and 107(b) clearly states Texas shall have no jurisdiction. How the fuck else can you possibly interpret that shit?”

Justice Alito, also not willing to let this shit go, regarding the meaning of prohibited, asked this to counsel Martin:

If you were in Congress and you were aware of Cabazon and you wanted to use “prohibited” in the normal sense of the word and you said, well, I’m afraid that if I use this word “prohibited,” people are going to think it has the Cabazon meaning, what would you have — how would you have written this?

He went on to ask if they should have used the word “forbidden” instead, or something like that?

Counsel Martin responded:

Your Honor, my submission would be that by using the word “prohibited” in 107(a) and then using no regulatory jurisdiction in 107(b), that it was clear that they were intending to implicate Cabazon.

Brant C. Martin

Justice Barrett, hearing this argument point blank asked if that means that Ysleta loses if Cabazon hadn’t been ruled on, and this law was just a random law congress wrote this way.

Counsel Martin was like, “Hell no. Let’s not get crazy, Justice Barrett. The ordinary meaning of “prohibit” is to forbid. Bingo isn’t fucking forbidden in Texas. I get Justice Robert’s argument, that other normal folk might interpret it that way, but normal folks are morons. We’re fucking lawyers, and we know better.”

As they moved away from defining “prohibited,” they went on to the idea as to whether these machines that are like slot machines, but one where you play Bingo, are really Bingo, or in fact slot machines under the guise of Bingo, and therefore prohibited, even under his definition of prohibited.

Justice Roberts even point blank asked, “Does this fucking thing look like a slot machine?”

Counsel Martin was like, “No dude, it looks like a Bingo machine.”

This bit of comedy garnered a few laughs, which is rare for SCOTUS. But they had been out of session and under COVID restrictions for a while, so maybe they were just a little happy to be back hearing arguments.

The heart of the argument seemed to be whether the casino could get away with having a prohibited slot machine by merely naming it Bingo. But counsel went out of his way to describe that these games are easily recognizable as an electronic form of Bingo, even if they bear some resemblance to a slot machine.

But counsel Martin was quick to point out that Texas wasn’t singling out the slot…’er…bingo machines, they complained about all the Bingo they were playing there.

Justice Thomas went on to question when specifically is Bingo allowed in Texas, and counsel Martin advised him that the statute allows for charitable organizations to play Bingo for money.

So justice Thomas was like, “Well, if the casino isn’t a charity, then how are they not prohibited?”

His argument seems to put forth the idea that the rules of Bingo in Texas aren’t regulated, the “Who can do it” is regulated.

But counsel Martin pointed out that in the Indian Gaming Regulatory Act (IGRA), any game which is allowed to be played under any situation, is allowed under IGRA’s rules, specifically.

Associate Justice Samuel Alito

Justice Alito, seemingly nostalgic over the laughter he heard a few minutes ago, went back to the “machines” line of questioning. And asked this juicy hypothetical, getting a laugh of his own:

Well, I’m puzzled by both your argument and by Cabazon and, in particular, by how a court is going to decide whether these machines, which I don’t have a very clear picture of in my mind, are bingo or not bingo. If they are not bingo, they’re something else.

Let’s say they’re dingo.

And Texas prohibits dingo, then you can’t have them, right?

Counsel Martin tacitly agreed, that if Texas had an all out ban on Dingo, then those machines would not be allowed.

So then Alito was like, “Well who the fuck decides if it’s even Bingo, Dingo, or your mom? Someone has to!”

So counsel Martin was like, “Alright man, I’ll play your stupid fucking game. The Texas Bingo Enabling Act defines Bingo. Our slot…’er…bingo machine fits their fucking definition. There are experts on this shit, and they say it’s Bingo.”

I shit you not, Justice Breyer, looking for some laughs of his own, when he heard about these so-called Bingo experts, chimed in with:

Did you ask my grandmother?

Associate Justice Stephen Breyer

He won the “Joke of the day” award with this one. Congrats Justice Breyer.

Counsel Martin, recognizing a good joke when he hears it, responded humorously, while still answering the question:

My own mother has asked me questions about those very issues, Your Honor.

But there are experts, in fact, that talk about whether or not something has a random number generator or not, whether or not the math makes it bingo, whether or not the evidence of the pattern makes it bingo.

All of those things are taken into account. All of those same things, Your Honor, are taken into account by the NIGC.

Justice Alito, not done with his juicy hypotheticals, threw counsel Martin a curveball with this little nugget:

Do you think that the sale of opioids without a prescription is prohibited, or is it merely regulated?

Counsel Martin was like, “Dude, why the fuck are we talking about drugs? The Restoration Act that we’re talking about here is about gaming, not hitting the crack pipe, so I’m not going near that shit with a 20′ pole. I’m just going to say that our argument is restricted to gaming issues, and move this shit right along. Let’s talk about your drug habits another day.”

Chief Arguer, Justice Kagan wasn’t really done yet with this problem, though. She asked:

You know, Mr. Martin, I guess just following up on what Justice Alito talked about, this Cabazon distinction presents a wealth of sort of complicated and, quite frankly, weird questions. And the slot machine would just be one of like a thousand of them.

Associate Justice Elena Kagan

I mean, it just—Cabazon tells us to make a distinction between “prohibition” and “regulation” when most of regulation prohibits certain things. And then you’re stuck in the middle of trying to figure out what’s a prohibition and what’s a regulation.

But I guess, as I—well, Cabazon is there, it’s not unique to the question of slot machines. I mean, how should we figure in any discomfort about Cabazon and the distinction that it makes itself?

Counsel Martin’s answer was basically that IGRA was specifically drafter about gaming, so hypotheticals about opiods and shit, are a whole different animal, and therefore not relevant to this shit.

The United States agrees with the Ysleta people so much, that they filed an amicus brief with them, in hopes to bolster Ysleta’s argument, and to shut Texas down.

Counsel Anthony Yang opened with this:

Mr. Chief Justice, and may it please the Court: Just six months after this Court drew the distinction in Cabazon under Public Law 280 between gaming activity that is prohibited versus gaming activity that is regulated by state law, Congress enacted Section 107, mirroring that language to draw the same distinction in the exact same Indian gaming context. Section 107(a) forbids a tribe from engaging in gaming activities that are prohibited under Texas law, and Section 107(b) further provides that Section 107(a) does not grant the state civil or criminal regulatory jurisdiction. Texas has conceded in this Court that Section 107(b) restates the limits of Public Law 280.

Those limits draw directly from Cabazon, they limit state regulatory jurisdiction, and they make clear that Section 107 adopts the Cabazon framework. The Fifth Circuit’s contrary view erroneously relies on legislative history and text that Congress once excluded but then removed from the legislation.

This Court should correct that error.

Anthony Yang

Justice Thomas started off questioning what the difference between a regulation and prohibition are, when he asked, “what if there’s a law that says, “Nobody under 21 can come into this fucking establishment.” Is that a prohibition, or regulation?”

But counsel Yang was ready for this:

That could be a prohibition but, here, not in this context.

The statute focuses on gaming activities that are prohibited.

The gaming activity would not be prohibited in that context.

That is a method of conducting the gaming activity with people under the age of 21. This is exactly the distinction that Congress—that this Court in Cabazon drew. And I would point to Williams versus Taylor, which—a unanimous decision of this Court which said that when a later statute on the same subject matter uses words of a prior Supreme Court opinion, those words are given the same meaning unless there’s a specific direction to the contrary. And the word there was “failed.” It wasn’t “failed” can have a lot of different meanings in a lot of different contexts.

Justice Roberts, apparently concerned about the workload of the US Attorney’s office asked this:

Mr. Yang, I think your office is going to be very busy over the next 10 years explaining why the word “prohibited,” in 18 U.S.C. whatever, still covers, you know, activities, possession of whatever, even though it’s permitted at some level, right? I mean, it’s prohibited to possess a certain amount of whatever, but, you know, at — at a level of personal use or medical whatever, it’s okay, then you can’t prohibit it at all.

Chief Justice John Roberts

His point being, that if they give Ysleta the victory, a lot of laws that use the words “prohibit” and “regulate,” are going to be interpreted differently, and may overturn a lot of convictions and shit.

But Mr. Yang, knowing he works for the federal government, and can work his cases in his own time, not worrying about getting fired because government doesn’t give a fuck if there’s a queue a mile long, responded with this:

We aren’t concerned about that because, with respect to this distinction—let me take a step back.

This distinction exists in Public Law 280. It’s done so for a long time.

Cabazon was 35 years ago. Cabazon applied a distinction in Bryan.

Bryan understood that there’s an important principle at stake here. You need to preserve tribal sovereignty and tribal government and that if you allow state regulatory power on tribal lands, you would destroy tribal sovereignty.

That principle in Bryan was extended in Cabazon specifically to the gaming context, where the Court drew this prohibitory/regulatory distinction. We don’t think this is a problem with respect to all of 18 U.S. Code C because, when you’re interpreting a statute like this, particularly a statute enacted directly on the heels of a Supreme Court decision on the same subject matter using the same language, what you look to is not some general understanding of the word “prohibit;” you look to the way that this Court has used the term “prohibit.”

During counsel Yang’s time, the subject of canon’s came up a lot. One was the Indian Canon, the other the Major Questions canon.

Canon’s aren’t so much laws, as they are basic operating principles. The Indian canon is basically that whenever SCOTUS considers a case between the government and Native American tribes, and there’s a bit of a gray area, they should defer to the tribe. Since we’ve historically fucked them over, we owe them that.

The major questions canon is something we’ve sort of discussed before in the OSHA decisions regarding vaccine mandates. It’s basically that for major questions that affect nearly the entirety of the American people, congress should be passing such laws, not regulatory authorities like OSHA, which is why SCOTUS sided against them in that case.

With that in mind, it seems the Indian canon should suggest that Texas loses, unless there’s a pretty compelling argument that the only way to interpret those laws, is Texas winning. Since we’re here, seems like it’s clearly not the only way to interpret them.

After counsel Yang wrapped up, it was counsel Lanora C. Pettit for the great state of Texas’ turn. She opened with an explanation as to why Texas gives a fuck about all this.

Thank you, Mr. Chief Justice, and may it please the Court: In the 1980s, everybody in this case wanted something.

The tribe wanted federal recognition and was willing to cede some of its sovereignty.

Texas wanted to avoid high-stakes gambling, which it saw as an invitation to organized crime, and was willing to cede some of its jurisdiction. The federal government was split about how to balance these sovereign interests.

So everyone made concessions, which are embodied in the Restoration Act.

The tribe got its recognition and may offer gambling to the same extent as other Texans, but further gambling is banned under federal law. The tribe asks to rewrite this legislative bargain based on Cabazon Band, but it’s admitted that Cabazon Band did not address how to interpret a statute that federalizes state law.

Its effort to extend Cabazon Band suffers from three primary faults. First, it ignores that when it comes to gambling, the Restoration Act departs from the Cabazon Band framework by treating both civil and criminal penalties and civil and criminal regulatory jurisdiction the same way. Second, it overlooks that the Cabazon Band test was written to avoid a form of state encroachment into tribal affairs that isn’t possible when a federal court is applying federal law. And, third, it depends on a definition of jurisdiction that disregards the close tie between that term in the 1980s and an adjudicator’s ability to decide a case.

Lanora C. Pettit

That’s how it’s used in Public Law 280, in Section 105(f), and, as Justice Kagan noted, in Section 107(c). Applying that same definition to 107(b), regulatory jurisdiction encompasses a state administrative agency’s ability to exercise oversight through, among other things, reporting requirements, inspections, and ultimately enforcement actions, not the state’s larger ability to set substantive limits on gambling. I welcome this Court’s questions.

Justice Thomas, concerned over the redundancy of “prohibit” and “Regulate” in these laws, wanted to understand where the line was. So he was like, “Give me an example of a situation where there’s a regulation that doesn’t apply, that’s not a prohibition in your eyes.”

Counsel Pettit responded:

There is a regulation that would apply to somebody who’s not the tribe that wouldn’t be a prohibition would, for example, be that the Texas Lottery Commission can typically get access to passwords so that people—they can—would have an ongoing oversight into the way that software functions. That’s a regulation that wouldn’t apply to the tribe because it’s not a prohibition relating to gaming activity.

So apparently, her idea is that a regulation on how the games are played, fall under the banner of prohibition, but other clerical shit, such as forcing the player to log in with a password first, that’s where Texas agrees it should stay the fuck out of it.

Chief Arguer, Justice Kagan really pressed counsel Pettit on the relationship between the Cabazon precedent, and the Restoration Act written shortly after by congress. It seems quite clear, that there’s plenty of text and history to show congress passed this law, in the wake of Cabazon, to make sure it wasn’t merely precedent, it was the fucking law.

Associate Justice Elena Kagan

So for Texas to win, SCOTUS would somehow have to ignore all that, and act like The Restoration Act was written in a vacuum, and that their use of “prohibit” was not the same “prohibit” in Cabazon.

Counsel Pettit replied:

So, in Cabazon, this Court used the phrase “regulatory authority,” not “regulatory jurisdiction.” When referring to the power to set laws, this Court has typically used the term “legislative jurisdiction,” which is tellingly not the word that Congress had selected.

In all this hubbub, it should also be noted that the Restoration Act gave the authority to govern these tribes to federal courts. So basically, if Texas has beef with Yseta’s casino, they go to a federal court to get a judgement.

Justice Kagan, Arguer-in-chief was quite argumentative with counsel Pettit, since that’s her default position. She asked:

Your position requires you to accept the idea that, for example, if Texas has a statute that says bingo has to end at 1 a.m. and instead it goes to 1:10, that all of a sudden that’s a federal crime adjudicable in federal court. I mean, that’s your position.

It’s not—you know, the other person—side’s position is essentially no, the federal courts are there when Texas has a statute that says no table games, and all of a sudden a casino opens up with craps, but your position is like everything, you know, the amount of the betting, the hours, the—I mean, everything that relates to the turn of the wheel or whatever, and that’s a lot of stuff.

After she attempted to argue that away, Justice Gorsuch came right out and asker her if she expected them to overrule Cabazon?

Associate Justice Neil Gorsuch

Counsel Pettit responded that they didn’t think that was the case. That IGRA’s verbiage breaks with Cabazon on this particular argument enough that the two can coexist peacefully. She argued that whole IGRA incorporates much of, and stems from Cabazon, because they were slightly different issues, Cabazon doesn’t necessarily apply here, IGRA does, with her reading of how it’s written.

Near the end of questioning, counsel Pettit also emphasized that other states like California start from the premise that gambling is legal, except when they say it isn’t. Whereas Texas assumes the opposite. All gambling is illegal, unless Texas says you may, because they think it’s basically an engraved invitation for organized crime to come to Texas and set up shop as they did in Nevada.

So in her mind, if all gaming is banned unless specifically authorized, that means that the casinos on Native American reservations in Texas can only have games which Texas specifically allows.

She also took one final swipe at Ysleta, and was like, “Those fucking Bingo machines, they’re fucking slot machines, and any idiot who sees it and plays it, knows it. The fact that it’s bingo-based doesn’t make it bingo, no different than a baseball-themed slot machine is baseball. They’ve really got to be kidding with this fucking nonsense.

So much for Texas being a liberty-minded state. And that’s an oppressive regime if I’ve ever heard one.

In a 5:4 ruling where Justices Gorsuch and Barrett joined the three Democratic appointees, SCOTUS sided with the Ysleta Pueblo. “Regulated” and “Prohibited” are essentially mutually exclusive. Unless the game is banned altogether in the state, the argument can only mean that it’s regulated, and therefore cannot be regulated away within the reservation. If they want to have their fucking Bingo games, they can have their fucking Bingo games.

Gorsuch literally broke out the dictionary, and included the definitions of “Prohibit” and “Regulate” in his opinion, since Texas clearly don’t understand the meaning of these words, and their rather distinct differences. Although, he did politely congratulate them on their colorful and creative interpretation of those two words, and somehow thinking a regulation could be deemed as a ban of certain types of Bingo, even if they’re clearly wrong as fuck.

Once again, Gorsuch has shown that he is quite possibly the biggest friend of the Native American community.

Average Joe SCOTUS: Gallardo v. Marstiller

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

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

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

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

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

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

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

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

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

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

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

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

Brian Gowdy

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

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

Spoiler alert: they were.

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

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

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

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

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

Our answer is that it would work the same way.

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

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

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

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

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

It’s in (B).

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

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

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

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

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

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

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

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

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

Justice Neil Gorsuch

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

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

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

It has multiple avenues for doing that.

It’s received an assignment.

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

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

Clearly, Vivek was ready for this shit.

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

Henry Whitaker

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

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

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

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

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

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

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

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

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

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

~Counsel for Florida Henry Whitaker

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

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

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

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

Average Joe SCOTUS: Biden v. Missouri

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

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

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

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

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

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

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

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

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

Justice Sonya Sotomayor

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

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

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

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

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

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

Justice Neil Gorsuch

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

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

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

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

Counsel Jesus Osete

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

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

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

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

Justice Elena Kagan

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

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

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

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

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

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

Justice Brett Kavanaugh

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

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

He asked:

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

His response:

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

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

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

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

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

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

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

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

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

Elizabeth Murrill

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

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

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

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

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

Average Joe SCOTUS: Shinn v. Ramirez

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

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

All Around Scumbag David Ramirez

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

So why is this case here at SCOTUS then?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Robert M. Loeb

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

You have a right to an effective trial counsel.

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

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

It was not objected to.

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

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

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

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

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

That’s a waiver.

It was not fair to the panel.

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

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

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

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

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

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

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

Average Joe SCOTUS: Becerra v. Empire Health Foundation

With this case, its level of complication is only surpassed by it’s level of boringness. I’ve read it multiple times, and have basically determined that it’s just a prime example of how when government writes a law, they only make things overcomplicated and inefficient.

Basically, the gyst is this. Medicare and Medicaid pay hospitals for treating patients. The amount they pay, is a set amount for a set procedure. So if you have to get your taint amputated because you have ass cancer, they might pay $10,000, no matter where you get that shit done.

That being said, there are hospitals, knows as Disproportionate Share Hospitals (DSH). These hospitals exist to help underprivileged Americans get care they might not otherwise be able to afford to get at other care facilities. As such, these hospitals are broke AF, and need money to help cover these extra expenses. DSHs get higher payments, since their patients are poor, and often in worse health, needing more treatment, as a result of their financial situation.

The Health and Human Services agency, has an algorithm to calculate how much to pay these DSHs., which basically looks at their Social Security Insurance (SSI) benefits, time spent in the hospital, and whether Medicare and/or Medicaid pay for it.

They have two separate algorithms for Medicare and Medicaid, to try to catch everyone using one benefit or the other, but then special rules to make sure if a person uses Medicare and Medicaid, they aren’t counted twice.

This is where it gets laughably complicated. The issue is regarding the phrases “entitled to” and “eligible for.” In the English language, they certainly mean two different things. The first means, it’s yours unless a reason is presented it should not be. The latter means it could be yours, if reasons are presented it should be.

But, HHS, apparently unaware of the English language, treated them as essentially the same. Both phrases represented patients whose bills were paid my either Medicare or Medicaid. But then, an appellate court, looking at the phrase “eligible for” came in and was like, “We don’t give a fuck if Medicare or Medicaid paid their bills, if they’re eligible for either Medicare or Medicaid, then they’re to be counted.” This new definition, broadened the “eligible for” phrase, which now makes the two phrases in question mean something different.

So then, HHS was like, “Well fuck you, appellate court. We think they’re the same. So if you’re going to redefine “eligible for” while just redefine “entitled to” to mean the same thing, using your new and broader definition.

So now, SCOTUS must decide, if HHS overstepped its bounds, broadening these definitions of the statute (as opposed to congress rewriting the law, I’m guessing), which would result in billions more taxpayer dollars finding their way to DHS locations around the country.

In a 5:4 decision authored by Justice Kagan, and joined by Justices Thomas, Breyer, Sotomayor, and Barrett, SCOTUS ruled HHS fucking nailed it. That it doesn’t matter if those agencies paid for the care, if the people were covered by these programs, they count, and HHS is well within their scope of authority to interpret the rule that way. As such, these people can be included in the algorithm, whether Medicare paid for their shit or not.

If I understand this right, and fuck me if I don’t, because this shit is confusing. Since there’s only so much money to be paid out, by expanding the number of people covered in the algorithm, it means the available money is divided up and doled out to more hospitals, thus reducing the amount DSHs will get over regular hospitals.

Justice Kavanaugh wrote the dissent, with Roberts, Alito, and Gorsuch joining him. They looked at the statute itself and felt that if Medicare doesn’t pay for the care they received by statute, the patient and DHS aren’t “entitled to” get Medicare to pay for it by adding them into their algorithm anyway.

Hear oral arguments and read about the case at Oyez here, and SCOTUS Blog here.

Average Joe SCOTUS: United States v. Tsarnaev

If the name Dzhokhar Tsarnaev looks familiar to you, it’s because it’s the dipshit who decided to blow up the Boston Marathon with his asshole brother. He killed three people, but hundreds were injured.

As you may know, his efforts earned him a justifiable one way trip to ride the lightning.

While on death row, the US Court of Appeals First Circuit threw out his death penalty ruling. Their argument was twofold. They believed that the courts didn’t do a good job scrutinizing jurors to see if they had watched any news about the bombing. But it was a national fucking story. The judge in the case screened a LOT of fucking jurors, and even spent 21 days with these nine angry fucks, probing the shit out of them to make sure that even if they had seen news stories, they exhibited signs they could be swayed by the evidence at trial, as opposed to having their mind made up before the trial even started.

Not sure where the hell you’d find nine people who hadn’t heard about it, unless you had nine homeless jurors from the midwest or something.

They also raised concerns about the fact the jurors didn’t hear about his scumbag brother Tamerlan who was also involved. Dzhokar and Tamerlan shot an MIT police officer in the head, then stole an SUV from a student. Somehow, Dzhokar managed to run over Tamerlan with the stolen SUV and killed him, saving the state from having to put both these fuckheads on trial. But the argument being made, is that Tamerlan may have been overly influential to Dzhokar, and Dzhoker somehow would have been an innocent little flower, had he not been influenced by Tamerlan.

Counsel for the US made a pretty compelling argument that since Dzhokar killed Tamerlan, it’s pretty convenient to throw blame on that prick, he’s fucking dead. He can’t cross examine anyone. He can’t deny the accusations against him. He’s the best fucking patsy you could ask for.

Curiously, despite Biden superseding Trump, having been on record as being in favor of ending the federal death penalty, apparently is keen to light this little piece of shit up like a Christmas tree. They are the ones pursuing it after all.

Tsarnaev’s counsel argues that in typical cases like this, the judge at the trial hearing would usually ask jurors what shit they’ve seen in the news about a case like this, to look for anyone who’s basically ready to pull the fucking switch on this little prick themselves, and the judge didn’t do that.

So now SCOTUS is being asked if the US Court of Appeals blew their load in vacation his death sentence, based on their insistence that the judge should have pursued more, whether these jurors were biased from the onset.

In a 6:3 partisan decision, SCOTUS ruled for the United States, arguing the 5th circuit, as usual, were a bunch of dumb fucks. The district court was well within their discretion, not to ask every juror to rattle off every fucking thing they heard on the news about this little prick. Instead, the court need only to assess the juror’s open-mindedness, or overwhelming bias, which they did.

The courts left three dissented, feeling that excluding the evidence about what a controlling dickhead his brother was, was unfair, and should have been allowed. If the jury had heard this shit, they might’ve chosen a lesser sentence.

But all for naught. Tsarnaev’s date with a needle is back on track. Good bye, you little prick.

Hear oral arguments or read about the case here.

Average Joe SCOTUS: Wooden v. United States

Ever heard of the Armed Career Criminal Act (ACCA)? Well, there’s a provision in it that goes something like this:

(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years

Well, that whole “three previous” shit is going to come into play here.

You see, all around dipshit William Wooden decided to roll up on a storage facility in Georgia back in 1997, and see if he could find some shit he wanted to own, but didn’t currently own. He proceeded to take possession without consulting the current owners of the property. Probably stocking up for the impending Y2K.

Wooden may have been an idiot, but he didn’t lack ambition. This fuckhead broke into ten different units and robbed each one. See where this is going?

That’s right. Ten units equals ten separate burglaries. He may have had one helluva night, but in the eyes of the law, he committed ten subsequent crimes.

Anyway, part of the ACCA is you’re not allowed to own a fucking gun if you’re an Armed Career Criminal.

So in 2014, a plain clothes officer came to Wooden’s house looking for Wooden’s wife. No clue why—doesn’t matter. Wooden, not knowing he was a cop, let him in, while he went to get his wife. Dude knew Wooden was a felon, and he saw the rifle in plain sight. Knowing Wooden wouldn’t be allowed to own a gun, the cop arrested him on the spot.

The feds charged Wooden accordingly, which gave him ten years in the pokey, after he already served eight for the burglaries back in the day. But the feds were also like, “Hey, wait a minute, he has three or more burglaries in his past doesn’t he? We can hit this mother fucker upside his had with the old ACCA fifteen year minimum, too.

Wooden of course tried to appeal. He was like, “Come on, man. Maybe I hit ten units, but it was just one crazy night. And that shit should be one ‘occasion’ under your stupid fucking law.”

But the 6th circuit court of appeals told Wooden to eat a bag of dicks. Occasions can be one after the other, as in hitting ten units in a row.

So now, the question before the court, is if some dipshit goes on a crime spree in one outing, is each successive crime he/she commits while enjoying a night on the town a separate “occasion” for purposes of the ACCA?

Justice Thomas opened up questions, and queried Wooden’s counsel how much time he would argue has to pass before it’s a new “occasion.” Clearly, they don’t want this interpretation to be some subjective bullshit. Otherwise, it ends up being constitutionally vague.

Counsel argued that this was one stream of illegal activity, from the time he hit the first storage locker, to the time they hit the last, he never stopped burgling. So that’s one occasion, in his argument. So it could be a new day, it could be that he did one in the morning, broke for lunch, and did a second one in the afternoon. As long as it’s broken up, it’s a new occasion, otherwise not.

In a unanimous decision, SCOTUS agreed with Wooden. If you go on a spree, without pause, that’s one fucking occasion.

Hear oral arguments or read about the case here.