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The U.S. Supreme Court delivered a major victory today for both school choice and religious liberty advocates. “A State need not subsidize private education,” declared Chief Justice John Roberts. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

The case is Espinoza v. Montana Department of Revenue. It centered on a 2015 scholarship program created by the Montana legislature “to provide parental and student choice in education.” The program functioned by offering a tax credit to individuals and businesses who donated to private, nonprofit scholarship organizations, which used those donations to fund educational scholarships. Qualifying families could then use the scholarship dollars to help send their children to a “qualified education provider,” including religiously affiliated private schools.

But the Montana Supreme Court killed the scholarship program in 2018, holding that it violated a provision of the Montana Constitution which bars the use of public funds “for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in party by any church, sect, or denomination.”

The Montana Supreme Court acknowledged that U.S. Supreme Court precedent—which has upheld the constitutionality of similar school choice programs—cut against its decision. But “we conclude that Montana’s Constitution more broadly prohibits ‘any’ state aid to sectarian schools and draws a ‘more stringent line than that drawn’ by its [federal] counterpart.” The state court, in other words, charted its own path in opposition to the federal jurisprudence laid down by SCOTUS.

Today the Supreme Court reversed the state court. “The Montana Supreme Court invalidated the program pursuant to a state law provision that expressly discriminates on the basis of religious status,” Chief Justice Roberts wrote for a 5-4 majority. That decision “burdens not only religious schools but also the families whose children attend or hope to attend them. Drawing on ‘enduring American tradition,'” he continued, “we have long recognized the rights of parents to direct ‘the religious upbringing’ of their children. Many parents exercise that right by sending their children to religious schools, a choice protected by the Constitution.”

“Given the conflict between the Free Exercise Clause and the application of the no-aid provision here,” Roberts concluded, “the Montana Supreme Court should have ‘disregard[ed]’ the no-aid provision and decided this case ‘conformably to the Constitution’ of the United States.”

The Supreme Court’s ruling in Espinoza v. Montana Department of Revenue is available here.

Read the Reason Foundation’s amicus brief in support of Kendra Espinoza here.

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Nearly a third of the 3,500 inmates incarcerated in San Quentin State Prison in California have tested positive for the coronavirus as of Monday.

California is one of the states seeing new spikes in COVID-19 infections, with nearly 225,000 infections across the state and 6,000 deaths as of Monday. Total deaths in the state still rank well below New York, which has had more than 31,000 deaths, but California is seeing new highs in the daily number of new infections as well as number of new deaths.

Nowhere is the spike more obvious than at San Quentin State Prison, north of San Francisco in Marin County. The prison accounts for half of all new COVID-19 infections among the state’s inmates. Up until May, San Quentin had managed to go without any reported infections at all. Now they have more than 1,000. A representative for the California Department of Corrections and Rehabilitation told USA Today that the prison is setting up tents within the prison to serve as triage space for handling new infections.

In a press conference on Monday, Gov. Gavin Newsom said it’s possible that the infections came to San Quentin via the transfer of prisoners from Chino, formally known as the California Institution for Men, located in San Bernardino County. According to NPR, the 122 prisoners who were transferred from Chino to San Quentin in late May were not tested before being moved. This is particularly foolish since prisoners were moved to San Quentin due to Chino’s own coronavirus outbreak and related overcrowding. (Currently, Chino has more than 500 active COVID-19 infections and has had 16 deaths.)

Newsom says California has released 3,500 inmates and has identified another 3,500 who could potentially be let out in order to reduce the level of crowding and thus the chances of the coronavirus spreading. The state has identified 110 inmates at San Quentin that could potentially be released soon. According to daily population data from California’s prison system, the state prison population is down more than 11,000 inmates from this same time last year.

Despite the new spike and California’s high prison population, the state’s prison system is still seeing fewer infections than in states like Texas and Ohio. Though The Marshall Project notes that 585 inmates in state and federal prisons have died of COVID-19 as of June 25, California has seen comparatively fewer prisoner deaths so far. Hopefully the prison system will learn from this disaster caused by poor planning in its prison transfers and will avoid creating new infection outbreaks. You can’t blame this one on bars and beachgoers.

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Today the U.S. Court of Appeals for the D.C. Circuit decided U.S. Postal Service v. Postal Regulatory Commission. In an opinion for the court, Judge Thomas Griffith resolved a dispute between these two agencies, holding that the PRC could order disclosure of certain financial data related to the sending of mail from foreign countries to the United States via Inbound Letter Post.

If you’re like me, this case may seem a little odd, because one federal agency is suing another. It’s federal government versus federal government, but not in the context of an interbranch dispute.  I am aware of this happening before, as when the Tennessee Valley Authority challenged the Environmental Protection Agency, but should this really be a thing? Should not an intrabranch dispute be resolved within that branch? Apparently not if one is an independent agency.

Judge Neomi Rao apparently had a similar thought. She concurred in Judge Griffith’s holding, but also wrote a separate brief concurrence, which I reproduce below.

I join the court’s opinion in full. I write separately to note the constitutional quandary
raised by a federal court resolving a lawsuit between two Executive Branch agencies. On one side of this dispute, we have the United States Postal Service—”an independent establishment of the executive branch of the Government of the United States.” 39 U.S.C. § 201. On the other, we have the Postal Regulatory Commission—”an independent establishment of the executive branch of the Government of the United States.” Id. § 501. Litigating on behalf of the Commission, the Department of Justice has taken sides in a disagreement between two Executive Branch entities tasked with oversight and administration of the nation’s mails.

This litigation stands in tension with Article II of the Constitution, which vests all executive power in the President and assigns him the duty to “take Care that the Laws be faithfully executed.” U.S. CONST. art. II, §§ 1, 3. “Moreover, because agencies involved in intra-Executive Branch disputes are not adverse to one another (rather, they are both subordinate parts of a single organization headed by one CEO), such disputes do not appear to constitute a case or controversy for purposes of Article III.” SEC v. FLRA, 568 F.3d 990, 997 (D.C. Cir. 2009) (Kavanaugh, J., concurring). The Constitution
creates a unitary executive and limits federal courts to deciding the rights of individuals in properly presented cases and controversies. The posture of this case thus presents constitutional questions about the power of an Article III court to resolve a purely Article II dispute. The fact that Congress specifically created federal court jurisdiction between the Postal Service and the Commission, see 39 U.S.C. § 3663, does not necessarily eliminate the constitutional concern because Congress cannot expand federal court jurisdiction beyond the Article III judicial power. See Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 65 (1996) (citing Marbury v. Madison, 1 Cranch
137 (1803)).

Our precedents are clear, however, that such disputes between “independent” agencies, such as the Postal Service and the Commission, are justiciable. See SEC v. FLRA, 568 F.3d at 997 (Kavanaugh, J., concurring) (collecting cases); see also USPS v. Postal Regulatory Comm’n, 886 F.3d 1253 (D.C. Cir. 2018). Therefore, I join the court’s well-reasoned opinion in this case.

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