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28. Justice Gorsuch and the COVID Emergency
A new, wide-ranging criticism of state and federal COVID mitigation measures blurs the critical distinction between inherent executive emergency power and exercises of delegated legislative authority
Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.
Every Monday morning, I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope that you’ll consider sharing it with your networks (and subscribing if you don’t already):
On the Docket
Thursday was another big day for decisions in argued cases, with the justices handing down five signed decisions and a sixth unsigned ruling (that followed from one of the five). If there’s a pattern to the rulings, it’s that the Court is clearing out cases in which the justices are not sharply divided (none of Thursday’s rulings came with more than two dissents). It’s a virtual certainty that, as the Court turns toward the more divisive and controversial cases, this degree of consensus … will not hold.
In the order in which they were announced, Thursday’s rulings included:
Amgen Inc. v. Sanofi: For a unanimous Court, Justice Gorsuch held that Amgen could not recover against Sanofi for infringing its patents for certain antibodies to lower cholesterol because the patents at issue failed to satisfy the “enablement” requirement (which requires the patent to describe the invention in ways in which it can be replicated).
Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith: For a 7-2 Court, Justice Sotomayor held that Andy Warhol did infringe upon a copyrighted photograph of Prince when he used that photograph as the basis for 16 silkscreen portraits, concluding that Warhol could not claim “fair use” of Lynn Goldsmith’s photograph because his use of it was not sufficiently “transformative.” Even for non-copyright buffs, the majority opinion and Justice Kagan’s blistering dissent are worth reading—not only because of how they approach the issues differently or because of all of the art that’s included, but because there’s an unusual degree of … snippiness … between the two Obama appointees.
Ohio Adjutant General’s Dept. v. FLRA: For a 7-2 Court, Justice Thomas held that federal labor law does cover negotiations between a state and so-called “dual-status technicians” who are employed by the state National Guard. Ohio had argued that, because state National Guard members are not usually in federal service, they also fall outside of federal labor rules. But the majority disagreed, holding that the state National Guard qualifies as a federal agency when it hires and supervises such dual-status technicians. Justice Alito dissented, joined by Justice Gorsuch. (N.B.: Although there are some interesting constitutional federalism issues lurking in the background, both the majority opinion and the dissent focus entirely on statutory interpretation.)
Twitter, Inc. v. Taamneh: For a unanimous Court, Justice Thomas held that victims of terrorist attacks had failed to allege adequate facts to show that Twitter had aided and abetted those acts such that it could be held liable under the Anti-Terrorism Act, as amended by the Justice Against Sponsors of Terrorism Act. To show that Twitter “knowingly provide[d] substantial assistance,” Thomas explained, the plaintiffs had to show that it did something beyond providing regular and widely accessible means for transmitting information. This ruling is significant not only in narrowing the scope of aiding-and-abetting liability under the ATA (a subject on which I had filed an amicus brief in support of the decision below); but also because of what it allowed the Court to do in the next case.
Gonzalez v. Google LLC: In a short, unsigned ruling, the Court ducked a major dispute over the scope of immunity for tech and other internet companies under section 230 of the Communications Decency Act of 1996. The plaintiffs’ claims in Gonzalez were based upon the same statutes as the claims in Taamneh, so that the ruling in Taamneh (that the allegations are insufficient to state a claim under those statutes) means that Google should prevail on remand without even reaching whether it is immune from liability under section 230. Thus, what started as two potentially enormous test cases for the future of the internet ended with a modest ruling about something else entirely—a result that seemed rather inevitable at the time.
Polselli v. IRS: Finally, Chief Justice Roberts wrote for a unanimous Court in holding that an exception to the notice requirement for IRS summonses to collect funds owed to satisfy tax judgments is not limited to cases in which “a delinquent taxpayer has a legal interest in accounts or records summoned by the IRS,” but rather can extend to accounts or records in which the delinquent taxpayer does not have a legal interest, as well.
Last week started with a busy Order List, including the addition of three cases to the merits docket for next Term—a racial gerrymandering dispute from South Carolina; the definition of a “serious drug offense” under the Armed Career Criminals Act; and an important congressional oversight dispute involving the “seven-member rule,” which allows any seven members (including those in the minority) of certain House committees to request documents from executive branch agencies. (N.B.: My uncle represents the respondents in that case.) Justices Thomas and Alito also dissented from the denial of certiorari in Hamm v. Smith, an Alabama death penalty dispute in which the lower courts sided with a death-row inmate seeking to be executed by nitrogen hypoxia (in November, the Court had vacated the lower-court’s stay of his execution, but the execution was subsequently botched, and then postponed).
On Wednesday, with no explanation and no noted dissents, the Court denied the emergency application to block (on Second Amendment grounds) assault weapons bans adopted by Illinois and the City of Naperville after the Highland Park shooting last year. And Thursday afternoon, in light of the expiration of the COVID national emergency on May 11, the Court got rid of Arizona v. Mayorkas—a case about whether a group of red states could intervene to defend Title 42—by vacating the D.C. Circuit’s decision denying intervention and remanding with instructions to dismiss. (Curiously, although this is a quintessential “Munsingwear vacatur,” the unsigned order doesn’t cite to that 1950 ruling.) Justice Jackson dissented from the vacatur (she would have simply dismissed the case), presumably in line with her objections to Munsingwear vacaturs. And Justice Gorsuch penned a separate “statement,” which is the focus of this week’s “Long Read.”
This week, we expect a regular Order List at 9:30 ET on Monday, and some number of decisions in merits cases starting at 10:00 ET on Thursday.
The One First Long Read: Justice Gorsuch’s Title 42 “Statement”
As noted above, Justice Gorsuch filed an eight-page “statement” respecting the final disposition of the “Title 42” case. The first half of the statement rehashed his reasons for dissenting (alongside the three Democratic appointees) from the Court’s emergency intervention in December. But the back-half of the statement offers a remarkable jeremiad against COVID mitigation policies, beginning with the rather stunning claim that, “Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country.”
Leaving aside the ridiculousness of that historical claim (I don’t think it is remotely controversial that, among numerous other examples, slavery represented a greater intrusion on civil liberties), I wanted to reflect a bit on the broader thesis Gorsuch’s statement advances—that this was almost entirely a function of abuses of power by state and federal executive officials, and all while legislatures (and courts) sat idly by. To me, this view blurs a critical distinction in discussions of emergency powers—one that meaningfully differentiates the behavior of (most) state and federal officials in response to the COVID pandemic from prior examples of more serious (to me, anyway) abuses.
Consider each of the federal examples Justice Gorsuch invokes:
Federal executive officials entered the act too. Not just with emergency immigration decrees. They deployed a public-health agency to regulate landlord-tenant relations nationwide. They used a workplace-safety agency to issue a vaccination mandate for most working Americans. They threatened to fire noncompliant employees, and warned that service members who refused to vaccinate might face dishonorable discharge and confinement.
What’s missing from Gorsuch’s analysis is any discussion of the source of authority on which each of these policies was based. The Title 42 immigration policy was based on … the Public Health Service Act of 1944, codified in Title 42 of the U.S. Code. The CDC’s eviction moratorium was based on … the Public Health Service Act of 1944. The authority to terminate federal civilian employees and military servicemembers for non-compliance with vaccination requirements was also pegged to various statutes. Indeed, I’m unaware of any case in which the Biden administration claimed any authority to act in response to the COVID pandemic by dint of his inherent constitutional powers under Article II; rather, each of these policies followed the longstanding model for public health emergencies under U.S. law—in which Congress has delegated broad authority to the executive branch to react to both predictable and unpredictable crises as circumstances warrant. Courts that blocked these programs (including the Supreme Court) invariably disagreed with the executive branch’s interpretations of the relevant statutes, but that seems like a far more ordinary set of legal disputes than the ones Gorsuch portrays.
Indeed, this model for the separation of emergency powers dates all the way back to the Founding, and to the understanding reflected both in the Constitution itself and in early statutes passed by Congress that presidents would need broad authority to respond to emergencies, but that the authority was, in the first instance, the legislature’s to delegate. To take just one example, Congress gave early presidents remarkably broad substantive authority to use the militia to respond to different types of domestic emergencies, but included tight procedural limits on the power—requiring a judge or Supreme Court justice to sign off on the factual predicate; and sunsetting the more extreme powers to expire 30 days after the beginning of the next congressional session.
This approach reflected the prosaic notion that, in a true emergency, a unitary executive would be able to act far more expeditiously and efficiently than a multi-member legislative body, especially one that was only in session a few months out of each year. (Congress was famously out of session for the first 11 weeks of the Civil War.) Congress has since removed or diluted some of the procedural constraints on those authorities (much to my chagrin), but not the substantive constraints.
Justice Gorsuch’s objections, then, are to how the executive branch interpreted these statutory delegations of substantive authority. That’s not to dismiss his objections; presidents can abuse statutory delegations just as much as they can abuse their inherent constitutional powers. But I think it changes the tenor of the conversation rather significantly when these disputes are (properly) framed as statutory interpretation debates rather than executive claims to extraordinary constitutional emergency powers—such as claims to unilateral suspension of habeas corpus; unilateral military commissions; surveillance of U.S. citizens without statutory authorization; and so on.
For Justice Gorsuch, who is perhaps the staunchest defender of the non-delegation doctrine on the current Court (under which these delegations might themselves be impermissible even when they are clear), that distinction may blur. But it’s still one worth drawing. President Biden never argued that, even if the Public Health Service Act didn’t support the eviction moratorium or the OSHA vaccination-or-testing mandate, he would have the constitutional authority to impose them anyway. Nor did he ever argue that those statutes were unconstitutional to the extent that they didn’t authorize his responses to the COVID pandemic (in contrast to the regular arguments advanced by one of his predecessors about statutes limiting surveillance authorities and the detention and treatment of enemy combatants).
The more we lose sight of that distinction, the more we risk mistaking governmental responses to the COVID pandemic, however well thought-out or misguided they may have been, for “the greatest intrusions on civil liberties in the peacetime history of this country.” And the more that we also risk discouraging future presidents, of whatever party, from taking similar approaches to the statutory emergency powers that they have been delegated by Congress—perhaps, more than a little ironically, pushing them to rest instead on broader and more problematic claims of inherent constitutional authority to act.
SCOTUS Trivia: The “Special” Term
Speaking of emergencies, one of the quirky facts I discovered in doing the research for my book on the “shadow docket” is that, until 1980, the Supreme Court used to formally adjourn when it rose for its summer recess. In other words, the full Court as a body ceased to be legally constituted, and so could not rule in between when it rose for its summer recess and when it retook the bench on the first Monday of October (the first day of the Term from 1917 onwards). Since 1980, the Court has sat for a “continuous” Term, meaning that it is always at least formally in session—and, thus, able to rule as a full Court at any time.
Among other things, the pre-1980 adjournment practice meant that most emergency applications were handled exclusively by the Circuit Justice (a model that ought to get serious consideration for returning to); and that, in the rare, extraordinary circumstances in which the full Court was needed, the Chief Justice would have to call for a “Special Term” of the Court.
So far as I’ve been able to tell, there were five such “Special Terms” during the twentieth century: One in 1942 (for the Nazi saboteurs’ case, Ex parte Quirin); two in 1953 (both arising out of the impending executions of Julius and Ethel Rosenberg); one in 1958 (for Cooper v. Aaron); and one in 1972 (in a dispute over the seating of delegates at the 1972 Democratic National Convention). All of those Special Terms involved cases that were argued and then decided through opinions of the Court—a telling contrast to how most “emergencies” are handled by the justices today, whether before their summer recess or during it.
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Happy Monday, everyone! I hope you have a great week.