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President Donald Trump is a nearly inexhaustible source of constitutional puzzles. I’ve practically organized a class around it. One never knows what new gifts he is going to bestow on us. Today, in his morning tweetstorm, he offers us the thought that he could appeal an impeachment to the U.S. Supreme Court.

Can he do that? One would think not, but I suppose hope springs eternal. There are both legal and political reasons for thinking the Court would stay out.

Legally, the text of the U.S. Constitution specifies that the House of Representatives possesses the “sole” power to impeach and the Senate possesses the “sole power to try all impeachments.” When Judge Walter Nixon tried to appeal his impeachment and conviction to the U.S. Supreme Court on the grounds that the procedures that the Senate followed were defective, the Rehnquist Court unanimously rejected that effort.

The parties do not offer evidence of a single word in the history of the Constitutional Convention or in contemporary commentary that even alludes to the possibility of judicial review in the context of the impeachment powers.

Chief Justice William Rehnquist even speculated about the problem of judicial review of a presidential impeachment.

We agree with the Court of Appeals that opening the door of judicial review to the procedures used by the Senate in trying impeachments would “expose the political life of the country to months, or perhaps years, of chaos.” . . . This lack of finality would manifest itself most dramatically if the President were impeached. The legitimacy of any successor, and hence his effectiveness, would be impaired severely, not merely while the judicial process was running its course, but during any retrial that a differently constituted Senate might conduct if its first judgment of conviction were invalidated.

The modern Court does not often seem inclined to invoke the political question doctrine, but here at least the justices were willing to admit that the Constitution had committed this question into the hands of the legislature, not the judiciary.

Perhaps there are circumstances that might tempt the justices to assert judicial supremacy over impeachments as well. After all, the Court is fond of reminding us that it is emphatically a judicial task to say what the law is, and what if Congress seemed to be riding roughshod over the Constitution in how it used the impeachment power? Imagine a Congress willing to impeach a president on grounds that no reasonable person could think constitutes an impeachable offense. Donald Trump apparently prefers to eat his steaks well-done with ketchup. To be sure, this is a grievous offense, but presumably no one thinks it is a high crime or misdemeanor. Imagine further that two-thirds of the Senate is willing convict such a president with no semblance of a trial. “Convict first, go through due process second,” declares the Senate majority leader. The Court might well think that such a Congress has badly abused its constitutional powers and is not even making a pretense of adhering to a good-faith interpretation of the Constitution. Maybe a Court confronted with such a runaway Congress would be tempted to ride to the president’s rescue and discover the limits to the political question doctrine.

But that’s when politics comes into play. A Congress willing to impeach and remove a sitting president on the pretext that he routinely dishonors his steaks could hardly be trusted to sit idly by while the justices attempted to reinstall that president in the White House. If a Court were to attempt to intervene in such a scenario, the justices might well find themselves next on the chopping block. The justices might at this point recall the words of Chief Justice Salmon Chase when the Court was asked to order the president not to enforce the Reconstruction Acts in Mississippi after the Civil War.

Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that case could this court interfere, in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court?

“These questions answer themselves,” Chase observed. Indeed. Sorry, Mr. President, you are on your own on this one.

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From Curto v. A Counry Place Condo. Ass’n, decided Monday:

Looking to the express terms of the pool policy, the Association emphasizes that it allows for roughly equal swimming time for both men and women in the aggregate. But this is not enough to save the pool schedule, which discriminates in its allotment of different times to men and women in addition to employing sex as its criterion. Under the most recent version of the schedule, women are able to swim for only 3.5 hours after 5:00 p.m. on weeknights, compared to 16.5 hours for men. The schedule also assigns to men the entire period from 4:00 p.m. onward on Friday afternoons. Women with regular-hour jobs thus have little access to the pool during the work week, and the schedule appears to reflect particular assumptions about the roles of men and women.

The majority doesn’t opine on whether a more balanced allocation of women-only and men-only would be permissible, but Judge Fuentes’s concurrence would have taken a broader position:

While the majority opinion explains that we do not reach the issue of “whether sex-segregated swimming hours necessarily violate the FHA,” I write separately to express my skepticism that the pool’s sex-segregated schedule could be saved by a more even allocation of evening hours between men and women. Our jurisprudence makes clear that facial discrimination does not become lawful merely because its burdens are felt by members of both sexes….

The concurrence noted that

[Some circuit courts] have determined that in certain circumstances, there may be legal justifications for facial discrimination under the FHA. The Sixth, Ninth, and Tenth Circuits have concluded that facially discriminatory policies may be justified if a defendant can show that the policies benefit the protected class or respond to legitimate safety concerns. The Eighth Circuit uses a different standard, requiring defendants to demonstrate that the facially discriminatory policy “was necessary to promote a governmental interest commensurate with the level of scrutiny afforded the class of people affected by the law under the equal protection clause.”

But it concluded that the court needn’t confront the issue, in part because there in any event wasn’t enough of a justification for the discrimination. And he noted in particular that the policy couldn’t be justified as an accommodation for some residents’ religious preferences:

Although the Association defends its discrimination on the basis of the religious concerns of its Orthodox Jewish members, it did not argue that its discriminatory schedule was justified under any recognized exception to the FHA’s antidiscrimination provision…. It also waived any argument that its discrimination was protected by the Religious Freedom Restoration Act.

The Association instead argued that if it did not discriminate on the basis of sex, it would be discriminating against its Orthodox Jewish population because they would be unable to use the swimming pool due to religious modesty laws. But there is no evidence in the record of the number of Orthodox Jewish residents who use the pool, and no evidence of the number of Orthodox Jewish pool users who would be unable to use a mixed-sex pool due to religious objections. At the very least, at the summary judgment stage, the Condominium Association was required to put forward more than speculation about the effects of integrating the swimming pool.

The majority agreed:

Although the Condominium Association’s pool use policy was motivated by the Orthodox Jewish residents’ religious beliefs, the Association did not mention the Religious Freedom Restoration Act at any point in its filings in the District Court or in its merits brief before us. (At our request, the parties discussed RFRA implications in supplemental memoranda.) Thus we determine that the Association has waived any possible RFRA defense to the plaintiffs’ FHA claim.

Even had the Association asserted a RFRA defense, it would lack associational standing to assert the religious free exercise rights of its Orthodox Jewish members. To have associational standing, (1) individual members must have standing in their own right, (2) the interest asserted must be germane to the purpose of the organization, and (3) neither the claim nor the relief requested must require the participation of the individual members in the lawsuit. The first prong is easily met here, but the Condominium Association does not have a religious purpose. Moreover, religious beliefs are highly personal, and in a typical RFRA case the parties asserting a burden on their religion would provide personal testimony about their beliefs and the nature of the burden. Here we have only the Association’s general assertions as to the beliefs of its Orthodox members.

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In a New England Journal of Medicine commentary published today, the authors of the opioid prescribing guidelines that the U.S. Centers for Disease Control and Prevention issued in 2016 reiterate the agency’s recent warning that it does not recommend abrupt or nonconsensual tapering for patients who are already taking high doses of narcotic analgesics for chronic pain. “Unfortunately, some policies and practices purportedly derived from the guideline have in fact been inconsistent with, and often go beyond, its recommendations,” write Deborah Dowell, Tamara Haegerich, and Roger Chou. Those policies and practices, they say, include “inflexible application of recommended dosage and duration thresholds and policies that encourage hard limits and abrupt tapering of drug dosages, resulting in sudden opioid discontinuation or dismissal of patients from a physician’s practice.”

Dowell, Haegerich, and Chou warn that patients forced to reduce their doses “could face risks related to withdrawal symptoms, increased pain, or unrecognized opioid use disorder” and “if their dosages are abruptly tapered may seek other sources of opioids or have adverse psychological and physical outcomes.” They also worry that doctors are responding to the CDC’s advice about the potential risks of opioids by “dismiss[ing] patients from care” or declining to prescribe opioids at all, “even in situations in which the benefits might outweigh the risks.” Dowell et al. say “such actions disregard messages emphasized in the guideline that clinicians should not dismiss patients from care, which can adversely affect patient safety, could represent patient abandonment, and can result in missed opportunities to provide potentially lifesaving information and treatment.” And they note that the guidelines have been improperly applied to “patients with pain associated with cancer, surgical procedures, or acute sickle cell crises.”

The CDC’s recognition that misinterpretation of its guidelines has resulted in needless suffering, patient abandonment, and “adverse psychological and physical outcomes” (including suicide) is welcome, if overdue. “This article should allay anxiety among physicians who prescribe responsibly for patients with chronic pain,” says Sally Satel, a Washington, D.C., psychiatrist who helped organize a March 6 letter to the CDC in which hundreds of health professionals and addiction specialists, including three former drug czars, expressed concern about the unintended consequences of the CDC’s advice. “No longer can any clinician, insurer, health care system, or pharmacist claim ‘the CDC Guideline says’ when it comes to tapering or discontinuation.”

Stefan Kertesz, a University of Alabama at Birmingham pain and addiction specialist who worked with Satel on the letter to the CDC, was also heartened by the NEJM article. “We needed CDC and its guideline’s authors to do precisely what they have done, which was to speak with vigor and clarity to the pressing ethical concern we laid out in our letter,” he says. “In affirming that the guideline did not call for hard dose cutoffs and forced tapers, the guideline’s authors have effectively called for recalibration of policies by insurers, by Medicaid authorities, and by agencies that have set ‘the number of patients above a given dose’ as the primary indicator of bad care.”

The letter to the CDC included testimony from hundreds of patients who have suffered the consequences of that ham-handed approach. “The trauma to patients who have been living in terror these past three years nearly broke my heart many times,” Kertesz says. “The only possible step has been for people familiar with the nexus of science and health policy to speak openly about the problems we have seen, and to trust that most people ultimately want to do what’s right.”

Yet Dowell et al. conspicuously fail to take any responsibility for the unintended but foreseeable harm caused by their advice. When a document is as widely misconstrued as the CDC’s guidelines have been—by insurers, regulators, legislators, pharmacists, and law enforcement agencies as well as clinicians—it is fair to ask how the authors left themselves open to misinterpretation.

According to the guidelines, “Clinicians should use caution when prescribing opioids at any dosage, should carefully reassess evidence of individual benefits and risks when considering increasing dosage to ≥50 morphine milligram equivalents (MME)/day, and should avoid increasing dosage to ≥90 MME/day or carefully justify a decision to titrate dosage to ≥90 MME/day.” The implication is that daily doses of 90 MME or more per day are rarely, if ever, medically justified.

It is hardly a stretch for physicians with patients who exceed this arbitrary threshold, including patients who have been functioning well on high doses for years, to worry that they will be perceived as practicing outside the bounds of proper medical care. Given the scrutiny that regulators and law enforcement agencies such as the Drug Enforcement Administration (DEA) have been applying to doctors in response to the “opioid epidemic,” prescribing practices portrayed as extreme and dubious by the CDC are apt to attract unwelcome attention that could jeopardize a physician’s livelihood and liberty.

“We still, unfortunately, have physicians who worry about capriciousness on the part of the DEA,” Satel notes. “That is the next step in efforts to ensure that doctors can continue to serve pain patients who have been benefiting from opioids.” While “the DEA does indeed have a job to do,” she says, “doctors are confused about what could make them a target.”

How doctors respond to anti-opioid pressure will depend on how they weigh their duty to patients against their personal risk. In this context, forced tapering and abandonment were predictable outcomes, even though the CDC guidelines say doctors should reduce doses only when the risks outweigh the benefits and describe the process as collaborative and consensual.

“Clinicians should empathically [sic] review benefits and risks of continued high-dosage opioid therapy and should offer to work with the patient to taper opioids to safer dosages,” the guidelines say. “For patients who agree to taper opioids to lower dosages, clinicians should collaborate with the patient on a tapering plan.”

Dowell et al. complain that “the guideline has been misimplemented,” saying “policies invoking the opioid-prescribing guideline that do not actually reflect its content and nuances can be used to justify actions contrary to the guideline’s intent.” But those nuances were bound to be lost amid the fear and anxiety caused by the government’s crackdown on prescription pain relievers.

Notwithstanding Dowell et al.’s disavowal of “hard limits and abrupt tapering,” that is what happened across the country after the CDC guidelines came out, as reflected in this sign at a doctor’s office in Washington state. “Beginning February 2017,” it says, “Morphine Equivalency Dosing WILL decrease until CDC guidelines are met by June 2017. Target is 90mg of Morphine equivalency per day, or less. All medication adjustments will be based on this new clinic policy.”

While decrying involuntary and precipitous tapering, Dowell et al. present the general decline in opioid prescribing as a sign of progress. “Although outpatient opioid prescribing had been declining since 2012,” they write, “accelerated decreases—including in high-risk prescribing—followed the guideline’s release.” Yet the continuing drive to reduce the volume of opioids prescribed in the United States has encouraged doctors, insurers, and policy makers to target patients on high doses, who consume a disproportionate share of the total. Kertesz emphasized that point at a recent conference in Charleston.

Dowell et al. do not acknowledge the downside to the decline in opioid prescribing, which has been accompanied by a surge in opioid-related deaths as both patients and nonmedical users turn to the black market, where the drugs are much more dangerous because potency is highly variable and unpredictable. Nor do they question their emphasis on the 90-MME threshold, which is scientifically problematic for several reasons. It assumes that analgesic effect corresponds to overdose risk and that different opioids can be reliably compared to each other based on fixed ratios. It ignores numerous factors that affect how a patient responds to a given dose of a particular opioid, including obvious considerations such as the patient’s weight, treatment history, and pain intensity as well as subtler ones such as interactions with other drugs (which can suppress or amplify an opioid’s effects) and genetically determined differences in enzyme production and opioid receptors.

“Policies should allow clinicians to account for each patient’s unique circumstances in making clinical decisions,” Dowell et al. write. The CDC’s 90-MME threshold, however it was intended, has in practice encouraged a much less discriminating approach, one that sacrifices patients’ welfare for the sake of conforming with the perceived demands of the federal government.

“The CDC bears full responsibility for how these arbitrary dose levels are being implemented throughout the country and the consequences for the people in pain,” Lynn Webster, a former president of the American Academy of Pain Medicine who signed the March 6 letter to the CDC, told me last year. “I said at the time when they were proposed that if something comes from the CDC as a guideline, it is more than a guideline. It will be interpreted basically as a level of dosing that if you exceed [it], then you are at legal jeopardy.”

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