Deaths from COVID-19 are overwhelmingly concentrated among the elderly, and thus it would seem obvious that vaccinating older Americans should be a top priority. Yet the Centers for Disease Control and Prevention (CDC) have released guidance suggesting that millions of essential workers should receive the vaccine before many people 65 and older.
Part of the reason for this, according to a CDC report, is to mitigate and racial and ethnic “health inequities.” Older Americans are disproportionately white, whereas the essential worker category includes a larger percentage of racial minorities and low-income people.
“Older populations are whiter, ” Harald Schmidt, a professor of ethics and health policy at the University of Pennsylvania, toldThe New York Times. “Society is structured in a way that enables them to live longer. Instead of giving additional health benefits to those who already had more of them, we can start to level the playing field a bit.”
It’s not as if there’s a consensus that this is the right thing to do. The Times notes that this approach “runs counter to frameworks proposed by the World Health Organization, the National Academies of Sciences, Engineering, and Medicine, and many countries, which say that reducing deaths should be the unequivocal priority and that older and sicker people should thus go before the workers, a view shared by many in public health and medicine.”
Indeed, this is a prime example of progressive thinking on racial justice leading otherwise intelligent people to take a position that actually hurts racial minorities. While it’s true that the 65-and-up demographic is somewhat whiter than the general population, there are still millions of elderly people of color, and they have by far the greatest risk of dying from COVID-19—the age skew of the disease’s victims is extreme. A policy of vaccinating police officers, firefighters, and grocery store employees before the elderly is clearly suboptimal, even from the standpoint of just trying to save as many people of color from dying as possible.
“The decision here is to not prioritize vaccinating them, but to instead vaccinate a different, less vulnerable group of people and then assert that this creates some kind of abstract collective racial benefit,” notes Matt Yglesias in a terrific post on this subject. “There have been a lot of takes lately about woke liberals prioritizing symbolic racial issues over the concrete needs of non-white people, but this idea really takes the cake.”
As Yglesias explains in greater detail:
Basically, if you take 1,000 prime-age Americans you’d expect to have 150 African-Americans in the pool versus about 100 if you take 1,000 senior citizens. So in that sense, vaccinating essential workers promotes racial equity because you’re giving shots to more Black people. But since the infection fatality rate for senior citizens is at least 10 times the rate for non-seniors, you’re not actually saving Black people’s lives this way. You’re opting for a strategy that leads to more Black deaths and more white deaths than the “vaccinate seniors first” strategy, but deciding that it’s better for equity and this is what ethics requires.
There are other problems with vaccinating essential workers before senior citizens, in that the former is an expansive and debatable category. Depending on who gets counted, some 70 percent of the workforce can be deemed essential, though restricting it to just “front line” workers gets that percentage down significantly, according to the Times. And while it’s true that vaccinating people in the workforce who are most likely to spread the disease to others could be a sound strategy for ultimately preventing deaths, this is a complicated approach and the current supply of vaccines is inadequate.
Yglesias recommends vaccinating health care workers, and then going by age: 85 and up, then 80 and up, then 75 and up, etc. This idea has a lot of merit, especially when the vaccine supply remains limited.
Ultimately, it’s up to the states to determine who gets vaccinated first; the CDC’s guidance is only a recommendation. Still, it’s regrettable that the CDC has embraced an approach to racial equity that might keep people in need of the vaccine from getting it first.
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Deaths from COVID-19 are overwhelmingly concentrated among the elderly, and thus it would seem obvious that vaccinating older Americans should be a top priority. Yet the Centers for Disease Control and Prevention (CDC) have released guidance suggesting that millions of essential workers should receive the vaccine before many people 65 and older.
Part of the reason for this, according to a CDC report, is to mitigate and racial and ethnic “health inequities.” Older Americans are disproportionately white, whereas the essential worker category includes a larger percentage of racial minorities and low-income people.
“Older populations are whiter, ” Harald Schmidt, a professor of ethics and health policy at the University of Pennsylvania, toldThe New York Times. “Society is structured in a way that enables them to live longer. Instead of giving additional health benefits to those who already had more of them, we can start to level the playing field a bit.”
It’s not as if there’s a consensus that this is the right thing to do. The Times notes that this approach “runs counter to frameworks proposed by the World Health Organization, the National Academies of Sciences, Engineering, and Medicine, and many countries, which say that reducing deaths should be the unequivocal priority and that older and sicker people should thus go before the workers, a view shared by many in public health and medicine.”
Indeed, this is a prime example of progressive thinking on racial justice leading otherwise intelligent people to take a position that actually hurts racial minorities. While it’s true that the 65-and-up demographic is somewhat whiter than the general population, there are still millions of elderly people of color, and they have by far the greatest risk of dying from COVID-19—the age skew of the disease’s victims is extreme. A policy of vaccinating police officers, firefighters, and grocery store employees before the elderly is clearly suboptimal, even from the standpoint of just trying to save as many people of color from dying as possible.
“The decision here is to not prioritize vaccinating them, but to instead vaccinate a different, less vulnerable group of people and then assert that this creates some kind of abstract collective racial benefit,” notes Matt Yglesias in a terrific post on this subject. “There have been a lot of takes lately about woke liberals prioritizing symbolic racial issues over the concrete needs of non-white people, but this idea really takes the cake.”
As Yglesias explains in greater detail:
Basically, if you take 1,000 prime-age Americans you’d expect to have 150 African-Americans in the pool versus about 100 if you take 1,000 senior citizens. So in that sense, vaccinating essential workers promotes racial equity because you’re giving shots to more Black people. But since the infection fatality rate for senior citizens is at least 10 times the rate for non-seniors, you’re not actually saving Black people’s lives this way. You’re opting for a strategy that leads to more Black deaths and more white deaths than the “vaccinate seniors first” strategy, but deciding that it’s better for equity and this is what ethics requires.
There are other problems with vaccinating essential workers before senior citizens, in that the former is an expansive and debatable category. Depending on who gets counted, some 70 percent of the workforce can be deemed essential, though restricting it to just “front line” workers gets that percentage down significantly, according to the Times. And while it’s true that vaccinating people in the workforce who are most likely to spread the disease to others could be a sound strategy for ultimately preventing deaths, this is a complicated approach and the current supply of vaccines is inadequate.
Yglesias recommends vaccinating health care workers, and then going by age: 85 and up, then 80 and up, then 75 and up, etc. This idea has a lot of merit, especially when the vaccine supply remains limited.
Ultimately, it’s up to the states to determine who gets vaccinated first; the CDC’s guidance is only a recommendation. Still, it’s regrettable that the CDC has embraced an approach to racial equity that might keep people in need of the vaccine from getting it first.
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The Supreme Court won’t stop the Trump administration from excluding undocumented immigrants in this year’s census—at least not until the administration officially does it.
The high court on Friday dismissed a challenge that sought to prevent the White House from excluding undocumented immigrants in the final numbers that will be used to apportion congressional seats. In an unsigned opinion, the court said the Trump v. New York case was “premature” and that plaintiffs lacked standing to seek a legal remedy because the census has not yet been finalized.
“This case is riddled with contingencies and speculation that impede judicial review,” the justices wrote. They noted that Trump “has made clear his desire” to exclude undocumented immigrants from the census, but that the court would have to wait until the plan was implemented before determining its constitutionality.
Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan filed a joint dissenting opinion arguing that the court should be able to rule on the merits of the case now, given the potential harms created if Trump moves ahead with implementing the changes.
“This fight isn’t over,” the American Civil Liberties Union, one of several groups involved in the lawsuit against the Trump administration, said in a statement. “If this policy is actually implemented, we’ll see them right back in court.”
Cutting undocumented immigrants out of the once-per-decade headcount of all Americans has important ramifications for the allocation of congressional seats and Electoral College votes, potentially shifting political power away from states that have larger immigrant populations. The U.S. Constitution requires only that the government count the “whole number of persons” every 10 years, and throughout history that has been interpreted to mean all people, including both citizens and noncitizens.
Until now. In July, Trump issued an executive order instructing the Commerce Department, which handles the census, to “exclude from the apportionment base aliens who are not in a lawful immigration status.” In the order, Trump argued that states have a perverse incentive to ignore federal immigration laws because they gain more congressional seats and political influence by having larger populations of undocumented immigrants.
On three occasions, lower federal courts told the Trump administration that it wasn’t allowed to exclude undocumented immigrants from the census.
Against that background, then, Friday’s ruling at the Supreme Court is something of a win for Trump—one that opens the door to changing how congressional and Electoral College power is distributed, even if only just a crack.
“The President now has the green light to try his hand at manipulating the count, and the Supreme Court—and the other federal courts—can only intervene if he actually does it (or perhaps if he clarifies what he’s going to do),” writes Thomas Wolf, a senior counsel and reapportionment expert for the Brennan Center, a nonprofit legal center.
Friday’s ruling “leaves the door open for any state that ends up losing congressional representation as a result of Trump’s plan to return to court at the end of the reapportionment process,” writes SCOTUSblog’s Amy Howe.
The right thing for the administration to do, of course, would be to drop this attempt at refusing to recognize the existence of individuals who are obviously residents of the United States and who are very much subject to the authority of the federal government. That, however, seems unlikely.
As the clock winds down on Trump’s time in office, what happens with the final stages of the census could be one of the administration’s most lasting impacts. Ten years’ worth of congressional redistricting and the next two presidential elections could be influenced by what the Trump administration decides to do next—and by what happens when and if the Supreme Court revisits this matter in the near future.
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The Supreme Court won’t stop the Trump administration from excluding undocumented immigrants in this year’s census—at least not until the administration officially does it.
The high court on Friday dismissed a challenge that sought to prevent the White House from excluding undocumented immigrants in the final numbers that will be used to apportion congressional seats. In an unsigned opinion, the court said the Trump v. New York case was “premature” and that plaintiffs lacked standing to seek a legal remedy because the census has not yet been finalized.
“This case is riddled with contingencies and speculation that impede judicial review,” the justices wrote. They noted that Trump “has made clear his desire” to exclude undocumented immigrants from the census, but that the court would have to wait until the plan was implemented before determining its constitutionality.
Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan filed a joint dissenting opinion arguing that the court should be able to rule on the merits of the case now, given the potential harms created if Trump moves ahead with implementing the changes.
“This fight isn’t over,” the American Civil Liberties Union, one of several groups involved in the lawsuit against the Trump administration, said in a statement. “If this policy is actually implemented, we’ll see them right back in court.”
Cutting undocumented immigrants out of the once-per-decade headcount of all Americans has important ramifications for the allocation of congressional seats and Electoral College votes, potentially shifting political power away from states that have larger immigrant populations. The U.S. Constitution requires only that the government count the “whole number of persons” every 10 years, and throughout history that has been interpreted to mean all people, including both citizens and noncitizens.
Until now. In July, Trump issued an executive order instructing the Commerce Department, which handles the census, to “exclude from the apportionment base aliens who are not in a lawful immigration status.” In the order, Trump argued that states have a perverse incentive to ignore federal immigration laws because they gain more congressional seats and political influence by having larger populations of undocumented immigrants.
On three occasions, lower federal courts told the Trump administration that it wasn’t allowed to exclude undocumented immigrants from the census.
Against that background, then, Friday’s ruling at the Supreme Court is something of a win for Trump—one that opens the door to changing how congressional and Electoral College power is distributed, even if only just a crack.
“The President now has the green light to try his hand at manipulating the count, and the Supreme Court—and the other federal courts—can only intervene if he actually does it (or perhaps if he clarifies what he’s going to do),” writes Thomas Wolf, a senior counsel and reapportionment expert for the Brennan Center, a nonprofit legal center.
Friday’s ruling “leaves the door open for any state that ends up losing congressional representation as a result of Trump’s plan to return to court at the end of the reapportionment process,” writes SCOTUSblog’s Amy Howe.
The right thing for the administration to do, of course, would be to drop this attempt at refusing to recognize the existence of individuals who are obviously residents of the United States and who are very much subject to the authority of the federal government. That, however, seems unlikely.
As the clock winds down on Trump’s time in office, what happens with the final stages of the census could be one of the administration’s most lasting impacts. Ten years’ worth of congressional redistricting and the next two presidential elections could be influenced by what the Trump administration decides to do next—and by what happens when and if the Supreme Court revisits this matter in the near future.
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Yesterday, the European Union Court of Justice decided Centraal Israëlitisch Consistorie van België and Others v. Vlaamse Regering. This case considered a Flemish law that restricted Kosher and Halal slaughter. Specifically, the government required butchers to use an electric stun gun on animals before slaughter. Kosher and Halal butchers contend that this stunning would render it impossible to perform the ritual slaughter. The court upheld this statute. Here is a snippet of the analysis:
Secondly, like the ECHR, the Charter is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today (see, by analogy, ECtHR, 7 July 2011, Bayatyan v. Armenia [GC], CE:ECHR:2011:0707JUD002345903, § 102 and the case-law cited), with the result that regard must be had to changes in values and ideas, both in terms of society and legislation, in the Member States. Animal welfare, as a value to which contemporary democratic societies have attached increasing importance for a number of years, may, in the light of changes in society, be taken into account to a greater extent in the context of ritual slaughter and thus help to justify the proportionality of legislation such as that at issue in the main proceedings. . . .
Consequently, it must be found that the measures contained in the decree at issue in the main proceedings allow a fair balance to be struck between the importance attached to animal welfare and the freedom of Jewish and Muslim believers to manifest their religion and are, therefore, proportionate.
Many critics of originalism would gladly prefer this sort of free-wheeling jurisprudence. I’ll take originalism, warts and all, any day over this sort of cosmopolitan living constitutionalism. Indeed, I remain blissfully unaware of European constitutional law. I take my cue from Justice Blair’s seriatim opinion in Chisholm v. Georgia: “The Constitution of the United States is the only fountain from which I shall draw; the only authority to which I shall appeal.”
Let’s assume California enacts this statute. Would it be constitutional? Would this law be neutral, and generally applicable? Unless there was some evidence that this law was targeted at Jewish or Muslim people, rational basis would be the likely standard of review. Well, at least as Smith is understood until Fulton is decided.
Let me throw one more wrinkle. Could an incorporated, for-profit butcher bring suit under the Free Exercise Clause? Gallagher v. Crown Kosher Supermarket would suggest that corporations do have Free Exercise rights. What about under RFRA? Justice Ginsburg’s dissent in Hobby Lobby, which was only joined by Justice Sotomayor, suggested that corporations could not avail themselves of a RFRA claim. Perhaps a sole proprietor butcher could bring a RFRA claim. But Hebrew National would be locked out of court.
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This morning, the Supreme dismissed a lawsuit filed by various state and local governments challenging the legality of Donald Trump’s plan to exclude undocumented migrants from population counts that determine the apportionment of seats in the House of Representatives. I wrote about the issues at stake in the case here and here, and in an amicus brief supporting the plaintiffs I submitted along with University of Texas law professor Sanford Levinson.
The Court’s ruling in Trump v. New York does not actually address the merits of the lawsuit. Instead, it dismissed the case based on the procedural doctrines of standing ripeness, because at this point it is not clear how many migrants will actually be excluded from the count based on the administration’s policy, and whether it will be enough to affect apportionment. This result is not surprising. The oral argument indicated that many of the justices preferred to avoid addressing the merits.
The per curiam opinion joined by the six conservative justices spells out their reasoning:
Two related doctrines of justiciability—each originating in the case-or-controversy requirement of Article III [of the Constitution]— underlie this determination….. First, a plaintiff must demonstrate standing, including “an injury that is concrete, particularized, and imminent rather than conjectural or hypothetical.” Carney v. Adams, ante, at 6…. Second, the case must be “ripe”—not de-pendent on “contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U. S. 296, 300 (1998) (internal quotation marks omitted).At present, this case is riddled with contingencies and speculation that impede judicial review. The President, to be sure, has made clear his desire to exclude aliens without lawful status from the apportionment base. But the President qualified his directive by providing that the Secretary should gather information “to the extent practicable” and that aliens should be excluded “to the extent feasible.” 85 Fed. Reg. 44680. Any prediction how the Executive Branch might eventually implement this general statement of pol-icy is “no more than conjecture” at this time. Los Angeles v. Lyons, 461 U. S. 95, 108 (1983).
To begin with, the policy may not prove feasible to implement in any manner whatsoever, let alone in a manner substantially likely to harm any of the plaintiffs here…..
Here the record is silent on which (and how many) aliens have administrative records that would allow the Secretary to avoid impermissible estimation, and whether the Census Bureau can even match the records in its possession to census data in a timely manner…. Uncertainty likewise pervades which (and how many) aliens the President will exclude from the census if the Secretary manages to gather and match suitable administrative records. We simply do not know whether and to what extent the President might direct the Secretary to “reform the census” to implement his general policy with respect to apportionment….
At the end of the day, the standing and ripeness inquiries both lead to the conclusion that judicial resolution of this dispute is premature. Consistent with our determination that standing has not been shown and that the case is not ripe, we express no view on the merits of the constitutional and related statutory claims presented. We hold only that they are not suitable for adjudication at this time.
The dissent by Justice Stephen Breyer, on behalf of the three liberal justices, takes issue with the majority’s standing analysis, arguing there is a high enough probability of injury here to resolve the case now. He emphasizes that there is enough evidence to show that the administration likely has the data to exclude hundreds of thousands undocumented migrants already:
We have long said that when plaintiffs “demonstrate a realistic danger of sustaining a direct injury as a result of [a policy’s] operation or enforcement,” they need “‘not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough.'” Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979)…. Here, inquiry into the threatened injury is unusually straightforward. The harm is clear on the face of the policy.The title of the Presidential memorandum reads: “Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census.” 85 Fed. Reg. 44679 (2020) (Presidential memorandum). That memorandum announces “the policy of the United States [shall be] to exclude from the apportionment base aliens who are not in a lawful immigration status . . . to the maximum extent feasible and consistent with the discretion delegated to the executive branch.” Id., at 44680. Notwithstanding the “contingencies and speculation” that “riddl[e]” this case, ante, at 4 (opinion of the Court), the Government has not backed away from its stated aim to exclude aliens without lawful status from apportionment….
The Government’s current plans suggest it will be able to exclude a significant number of people under its policy. To start, even a few weeks out, the Government still does not disclaim its intent to carry out the policy to the full extent it can do so…
Both here and in related litigation below, the Government has said that as of early December, it was already feasible to exclude aliens without lawful status housed in ICE detention centers on census day, a “category [that] is likely in the tens of thousands, spread out over multiple States.” Reply Brief for United States 6; see also Brief for Appellees New York Immigration Coalition et al. 15 (citing a prior Government estimate that doing so will exclude approximately “50,000 ICE detainees”). Beyond these detainees, appellees note that the Government has also identified at least several million more aliens without lawful status that it can “individually identify” and seek to exclude from the tabulation. Id., at 15–16. We have been told the Bureau is “working very hard to try to report on” (and exclude from the apportionment tabulation) a large number of aliens without lawful status, including “almost 200,000 persons who are subject to final orders of removal,” “700,000 DACA recipients,” and about “3.2 million non-detained individuals in removal proceedings.” Tr. of Oral Arg. 28–29. All told, the Bureau already possesses the administrative records necessary to exclude at least four to five million aliens. Id., at 29. Those figures are certainly large enough to affect apportionment.
I think Breyer has the better of the standing argument, and that the combination of the administration’s clearly stated intent and the government’s possession of data on numerous undocumented immigrants is enough to create a probablistic injury justifying standing. More generally, I have long advocated the abolition of standing requirements generally, which arise from a judicially created doctrine not actually in the Constitution, and cause more harm than good.
That said, I admit this is a tough case under current Supreme Court standing precedent. It has long been unclear exactly how likely an injury has to be in order to qualify as a “realistic danger” great enough to justify standing. In the present case, the risk is difficult to estimate, in part because it is not clear whether the administration can match the data it has on individual immigrants to census data for particular states. This aspect of standing doctrine—like many others—is a mess. Today’s decision does little to fix the mess, since it doesn’t articulate anything approaching a clear standard for for determining how great a probability of injury is enough.
As far as the Court is concerned, the way to determine whether a probablistic injury is probable enough to get standing is something like Justice Potter Stewart’s famous description of the standard for determining what qualifies as pornography: “I know it when I see it.” If a majority of Supreme Court justices, in their wisdom and majesty, determine that the probability is high enough, then it is. Otherwise not.
It is also notable that neither the majority nor the dissent gives any consideration to the “special solicitude” state governments are supposed to be entitled to for standing purposes, under the Supreme Court’s 2007 decision in Massachusetts v. EPA. If that doctrine doesn’t apply, it would have been useful for the majority to explain why.
Be that as it may, all nine justices recognize that the plaintiffs will have standing when and if the Trump administration determines how many (if any) undocumented immigrants it will try to exclude from the count -at least if that number is large enough to affect apportionment. The same applies if the number is large enough to affect the distribution of federal funds between states. For that reason, today’s ruling may well not be the final word on the case. It all depends on what Trump manages to do between now and when he leaves office on January 20 (after which time President-elect Joe Biden is likely to rescind Trump’s memorandum if the latter has not yet had a chance to implement it).
Today’s decision is likely to draw comparisons with the Court’s recent ruling in Texas v. Pennsylvania, where the Court rejected Texas’ challenge to the electoral outcomes in four states that voted for Biden, also based on lack of standing. In both instances, a major lawsuit brought by state governments was dismissed on similar procedural grounds.
There is, however, a crucial difference between the two cases. In the Texas case, the Court made clear that it was simply impossible for Texas to ever get standing to file this sort of case against another state, because “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” The issue was not the probability of the alleged injury in question, but the fact that it simply is not the type of injury that can justify standing in any situation, regardless of how likely it is to occur. By contrast, probability is the key issue in Trump v. New York. When and if the claimed injury becomes probable enough, the plaintiffs will have standing.
While the majority did not indicate any view on the merits of the case, Justice Breyer’s dissent noted the liberal justices’ agreement with the plaintiffs:
On the merits, I agree with the three lower courts that have decided the issue, and I would hold the Government’s policy unlawful…
The plaintiffs challenge that policy on both constitutional and statutory grounds, arguing that it contravenes the directives to report the “tabulation of total population by States . . . as required for the apportionment,” 13 U. S. C. §141(b), and to include the “whole number of persons in each State, excluding Indians not taxed.” U. S. Const., Amdt. 14, §2; 2 U. S. C. §2a(a). Consistent with this Court’s usual practice, I would avoid the constitutional dispute and resolve this case on the statutory question alone…
While that statutory question is important, it is not difficult. Our tools of statutory construction all point to “usual residence” as the primary touchstone for enumeration in the decennial census. The concept of residency does not turn, and has never turned, solely on a person’s immigration status. The memorandum therefore violates Congress’ clear command to count every person residing in the country, and should be set aside…
First, we have the text. The modern apportionment scheme dates back to 1929. See 46 Stat. 21 (1929 Act). The relevant language provides that the apportionment base shall include “the whole number of persons in each State” “as ascertained under the . . . decennial census.” §22, id., at 26 (codified at 2 U. S. C. §2a(a))…. The usual meaning of “persons,” of course,includes aliens without lawful status….
Moreover, the statute (like the Constitution) explicitly excludes only one category of persons from the apportionment, “Indians not taxed,” 2 U. S. C. §2a(a), though it is evident they “reside” within the United States. Congress clearly knew how to exclude a certain population that would otherwise meet the traditional residency requirement when it wished to do so. Yet it did not single out aliens without lawful status in the 1929 Act.
Second, historical practice leaves little doubt about the statute’s meaning. From the founding era until now, enumeration in the decennial census has always been concerned with residency, not immigration status…
Although we focus on the constitutional issue, many of the points made by Breyer are similar to those emphasized in our amicus brief, especially the general nature of the word “persons” and the significance of the exclusion of “Indians not taxed.”
Should the case come back to the Court, the oral argument suggests there is a good chance that at least two of the conservative justices will join with the liberals to rule against the administration. Most notably, newly appointed Justice Amy Coney Barrett indicated to the administration’s lawyer that “a lot of the historical evidence and longstanding practice really cuts against your position.” We’ll have to see what happens when and if the Trump administration figures out exactly which people it will actually try to exclude from the apportionment count.
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Yesterday, the European Union Court of Justice decided Centraal Israëlitisch Consistorie van België and Others v. Vlaamse Regering. This case considered a Flemish law that restricted Kosher and Halal slaughter. Specifically, the government required butchers to use an electric stun gun on animals before slaughter. Kosher and Halal butchers contend that this stunning would render it impossible to perform the ritual slaughter. The court upheld this statute. Here is a snippet of the analysis:
Secondly, like the ECHR, the Charter is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today (see, by analogy, ECtHR, 7 July 2011, Bayatyan v. Armenia [GC], CE:ECHR:2011:0707JUD002345903, § 102 and the case-law cited), with the result that regard must be had to changes in values and ideas, both in terms of society and legislation, in the Member States. Animal welfare, as a value to which contemporary democratic societies have attached increasing importance for a number of years, may, in the light of changes in society, be taken into account to a greater extent in the context of ritual slaughter and thus help to justify the proportionality of legislation such as that at issue in the main proceedings. . . .
Consequently, it must be found that the measures contained in the decree at issue in the main proceedings allow a fair balance to be struck between the importance attached to animal welfare and the freedom of Jewish and Muslim believers to manifest their religion and are, therefore, proportionate.
Many critics of originalism would gladly prefer this sort of free-wheeling jurisprudence. I’ll take originalism, warts and all, any day over this sort of cosmopolitan living constitutionalism. Indeed, I remain blissfully unaware of European constitutional law. I take my cue from Justice Blair’s seriatim opinion in Chisholm v. Georgia: “The Constitution of the United States is the only fountain from which I shall draw; the only authority to which I shall appeal.”
Let’s assume California enacts this statute. Would it be constitutional? Would this law be neutral, and generally applicable? Unless there was some evidence that this law was targeted at Jewish or Muslim people, rational basis would be the likely standard of review. Well, at least as Smith is understood until Fulton is decided.
Let me throw one more wrinkle. Could an incorporated, for-profit butcher bring suit under the Free Exercise Clause? Gallagher v. Crown Kosher Supermarket would suggest that corporations do have Free Exercise rights. What about under RFRA? Justice Ginsburg’s dissent in Hobby Lobby, which was only joined by Justice Sotomayor, suggested that corporations could not avail themselves of a RFRA claim. Perhaps a sole proprietor butcher could bring a RFRA claim. But Hebrew National would be locked out of court.
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This morning, the Supreme dismissed a lawsuit filed by various state and local governments challenging the legality of Donald Trump’s plan to exclude undocumented migrants from population counts that determine the apportionment of seats in the House of Representatives. I wrote about the issues at stake in the case here and here, and in an amicus brief supporting the plaintiffs I submitted along with University of Texas law professor Sanford Levinson.
The Court’s ruling in Trump v. New York does not actually address the merits of the lawsuit. Instead, it dismissed the case based on the procedural doctrines of standing ripeness, because at this point it is not clear how many migrants will actually be excluded from the count based on the administration’s policy, and whether it will be enough to affect apportionment. This result is not surprising. The oral argument indicated that many of the justices preferred to avoid addressing the merits.
The per curiam opinion joined by the six conservative justices spells out their reasoning:
Two related doctrines of justiciability—each originating in the case-or-controversy requirement of Article III [of the Constitution]— underlie this determination….. First, a plaintiff must demonstrate standing, including “an injury that is concrete, particularized, and imminent rather than conjectural or hypothetical.” Carney v. Adams, ante, at 6…. Second, the case must be “ripe”—not de-pendent on “contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U. S. 296, 300 (1998) (internal quotation marks omitted).At present, this case is riddled with contingencies and speculation that impede judicial review. The President, to be sure, has made clear his desire to exclude aliens without lawful status from the apportionment base. But the President qualified his directive by providing that the Secretary should gather information “to the extent practicable” and that aliens should be excluded “to the extent feasible.” 85 Fed. Reg. 44680. Any prediction how the Executive Branch might eventually implement this general statement of pol-icy is “no more than conjecture” at this time. Los Angeles v. Lyons, 461 U. S. 95, 108 (1983).
To begin with, the policy may not prove feasible to implement in any manner whatsoever, let alone in a manner substantially likely to harm any of the plaintiffs here…..
Here the record is silent on which (and how many) aliens have administrative records that would allow the Secretary to avoid impermissible estimation, and whether the Census Bureau can even match the records in its possession to census data in a timely manner…. Uncertainty likewise pervades which (and how many) aliens the President will exclude from the census if the Secretary manages to gather and match suitable administrative records. We simply do not know whether and to what extent the President might direct the Secretary to “reform the census” to implement his general policy with respect to apportionment….
At the end of the day, the standing and ripeness inquiries both lead to the conclusion that judicial resolution of this dispute is premature. Consistent with our determination that standing has not been shown and that the case is not ripe, we express no view on the merits of the constitutional and related statutory claims presented. We hold only that they are not suitable for adjudication at this time.
The dissent by Justice Stephen Breyer, on behalf of the three liberal justices, takes issue with the majority’s standing analysis, arguing there is a high enough probability of injury here to resolve the case now. He emphasizes that there is enough evidence to show that the administration likely has the data to exclude hundreds of thousands undocumented migrants already:
We have long said that when plaintiffs “demonstrate a realistic danger of sustaining a direct injury as a result of [a policy’s] operation or enforcement,” they need “‘not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough.'” Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979)…. Here, inquiry into the threatened injury is unusually straightforward. The harm is clear on the face of the policy.The title of the Presidential memorandum reads: “Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census.” 85 Fed. Reg. 44679 (2020) (Presidential memorandum). That memorandum announces “the policy of the United States [shall be] to exclude from the apportionment base aliens who are not in a lawful immigration status . . . to the maximum extent feasible and consistent with the discretion delegated to the executive branch.” Id., at 44680. Notwithstanding the “contingencies and speculation” that “riddl[e]” this case, ante, at 4 (opinion of the Court), the Government has not backed away from its stated aim to exclude aliens without lawful status from apportionment….
The Government’s current plans suggest it will be able to exclude a significant number of people under its policy. To start, even a few weeks out, the Government still does not disclaim its intent to carry out the policy to the full extent it can do so…
Both here and in related litigation below, the Government has said that as of early December, it was already feasible to exclude aliens without lawful status housed in ICE detention centers on census day, a “category [that] is likely in the tens of thousands, spread out over multiple States.” Reply Brief for United States 6; see also Brief for Appellees New York Immigration Coalition et al. 15 (citing a prior Government estimate that doing so will exclude approximately “50,000 ICE detainees”). Beyond these detainees, appellees note that the Government has also identified at least several million more aliens without lawful status that it can “individually identify” and seek to exclude from the tabulation. Id., at 15–16. We have been told the Bureau is “working very hard to try to report on” (and exclude from the apportionment tabulation) a large number of aliens without lawful status, including “almost 200,000 persons who are subject to final orders of removal,” “700,000 DACA recipients,” and about “3.2 million non-detained individuals in removal proceedings.” Tr. of Oral Arg. 28–29. All told, the Bureau already possesses the administrative records necessary to exclude at least four to five million aliens. Id., at 29. Those figures are certainly large enough to affect apportionment.
I think Breyer has the better of the standing argument, and that the combination of the administration’s clearly stated intent and the government’s possession of data on numerous undocumented immigrants is enough to create a probablistic injury justifying standing. More generally, I have long advocated the abolition of standing requirements generally, which arise from a judicially created doctrine not actually in the Constitution, and cause more harm than good.
That said, I admit this is a tough case under current Supreme Court standing precedent. It has long been unclear exactly how likely an injury has to be in order to qualify as a “realistic danger” great enough to justify standing. In the present case, the risk is difficult to estimate, in part because it is not clear whether the administration can match the data it has on individual immigrants to census data for particular states. This aspect of standing doctrine—like many others—is a mess. Today’s decision does little to fix the mess, since it doesn’t articulate anything approaching a clear standard for for determining how great a probability of injury is enough.
As far as the Court is concerned, the way to determine whether a probablistic injury is probable enough to get standing is something like Justice Potter Stewart’s famous description of the standard for determining what qualifies as pornography: “I know it when I see it.” If a majority of Supreme Court justices, in their wisdom and majesty, determine that the probability is high enough, then it is. Otherwise not.
It is also notable that neither the majority nor the dissent gives any consideration to the “special solicitude” state governments are supposed to be entitled to for standing purposes, under the Supreme Court’s 2007 decision in Massachusetts v. EPA. If that doctrine doesn’t apply, it would have been useful for the majority to explain why.
Be that as it may, all nine justices recognize that the plaintiffs will have standing when and if the Trump administration determines how many (if any) undocumented immigrants it will try to exclude from the count -at least if that number is large enough to affect apportionment. The same applies if the number is large enough to affect the distribution of federal funds between states. For that reason, today’s ruling may well not be the final word on the case. It all depends on what Trump manages to do between now and when he leaves office on January 20 (after which time President-elect Joe Biden is likely to rescind Trump’s memorandum if the latter has not yet had a chance to implement it).
Today’s decision is likely to draw comparisons with the Court’s recent ruling in Texas v. Pennsylvania, where the Court rejected Texas’ challenge to the electoral outcomes in four states that voted for Biden, also based on lack of standing. In both instances, a major lawsuit brought by state governments was dismissed on similar procedural grounds.
There is, however, a crucial difference between the two cases. In the Texas case, the Court made clear that it was simply impossible for Texas to ever get standing to file this sort of case against another state, because “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” The issue was not the probability of the alleged injury in question, but the fact that it simply is not the type of injury that can justify standing in any situation, regardless of how likely it is to occur. By contrast, probability is the key issue in Trump v. New York. When and if the claimed injury becomes probable enough, the plaintiffs will have standing.
While the majority did not indicate any view on the merits of the case, Justice Breyer’s dissent noted the liberal justices’ agreement with the plaintiffs:
On the merits, I agree with the three lower courts that have decided the issue, and I would hold the Government’s policy unlawful…
The plaintiffs challenge that policy on both constitutional and statutory grounds, arguing that it contravenes the directives to report the “tabulation of total population by States . . . as required for the apportionment,” 13 U. S. C. §141(b), and to include the “whole number of persons in each State, excluding Indians not taxed.” U. S. Const., Amdt. 14, §2; 2 U. S. C. §2a(a). Consistent with this Court’s usual practice, I would avoid the constitutional dispute and resolve this case on the statutory question alone…
While that statutory question is important, it is not difficult. Our tools of statutory construction all point to “usual residence” as the primary touchstone for enumeration in the decennial census. The concept of residency does not turn, and has never turned, solely on a person’s immigration status. The memorandum therefore violates Congress’ clear command to count every person residing in the country, and should be set aside…
First, we have the text. The modern apportionment scheme dates back to 1929. See 46 Stat. 21 (1929 Act). The relevant language provides that the apportionment base shall include “the whole number of persons in each State” “as ascertained under the . . . decennial census.” §22, id., at 26 (codified at 2 U. S. C. §2a(a))…. The usual meaning of “persons,” of course,includes aliens without lawful status….
Moreover, the statute (like the Constitution) explicitly excludes only one category of persons from the apportionment, “Indians not taxed,” 2 U. S. C. §2a(a), though it is evident they “reside” within the United States. Congress clearly knew how to exclude a certain population that would otherwise meet the traditional residency requirement when it wished to do so. Yet it did not single out aliens without lawful status in the 1929 Act.
Second, historical practice leaves little doubt about the statute’s meaning. From the founding era until now, enumeration in the decennial census has always been concerned with residency, not immigration status…
Although we focus on the constitutional issue, many of the points made by Breyer are similar to those emphasized in our amicus brief, especially the general nature of the word “persons” and the significance of the exclusion of “Indians not taxed.”
Should the case come back to the Court, the oral argument suggests there is a good chance that at least two of the conservative justices will join with the liberals to rule against the administration. Most notably, newly appointed Justice Amy Coney Barrett indicated to the administration’s lawyer that “a lot of the historical evidence and longstanding practice really cuts against your position.” We’ll have to see what happens when and if the Trump administration figures out exactly which people it will actually try to exclude from the apportionment count.
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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
This week, IJ launched the third edition of its landmark report on civil forfeiture, Policing for Profit. The report presents the largest ever collection of forfeiture data and updated grades for the civil forfeiture laws of each state, D.C. and the federal government, which together have forfeited at least $68.8 billion since 2000. It also includes a new analysis finding no increase in crime after New Mexico abolished civil forfeiture and the profit incentive in 2015. Click here to read more from ProPublica.
State wiretapping laws often bar secret unconsented recordings, but Massachusetts goes a step further and prohibits such recordings even in public places. First Circuit: That violates the First Amendment as applied to recordings of police, as history shows such “newsgathering” plays a critical role in public debate and can be conducted without interfering in police work. But we can’t consider broader challenges to recordings of other government officials or other individuals without a reasonable expectation of privacy, as those challenges are overly hypothetical and not yet ripe.
Armed robber robs Pittsburgh store precisely when its safes are most likely to be full; he also knows about second safe that few others did. Yikes! There’s no evidence that the man convicted of the crime in 2006 had inside knowledge of the store’s operations, nor is he ever connected to the getaway car. Third Circuit: The fact that his fingerprint was on a manila envelope the robber left behind and the fact that he didn’t match the robber’s description (but also wasn’t so far off that it necessarily excluded him) do not add up to proof of guilt beyond a reasonable doubt. Habeas granted.
After seeing a drug dealer repeatedly enter and exit a woman’s house, Parma, Ohio police search the home and find over $68k in cash. Sixth Circuit: Because she did not present any evidence to substantiate her claim that she owns the money, she lacks Article III standing to challenge its forfeiture.
Eagle Towing—a Michigan towing company—finds itself brusquely removed from the towing lists of two Michigan State Police posts. But neither of the post commanders complied with the department’s detailed, written processes for removing towing companies from the lists. A due process violation? District court: Potentially, and the company’s property interest was clear enough to defeat qualified immunity. Sixth Circuit: Affirmed. Judge Sutton (dissenting): “Even assuming there is a protected property interest in staying on a towing call list, that interest is not clearly established.” (No comment in the dissent on what some might deem the most controversial aspect of the majority opinion: its use of an all-caps “NO” for emphasis on page 7.)
In March 2020, the Sixth Circuit held 2–1 that a lawsuit alleging sexual harassment in a University of Michigan executive MBA program could proceed to trial. But the dissent wins the day, as the en banc Sixth Circuit reverses, holding that the university appropriately escalated its response to the alleged harasser at each stage.
Does forcing public union members to vote—when they’d rather not vote—on whether to keep their union certified violate their right to free speech? How about preventing them from bargaining about anything other than base wages? Is that a speech thing? Well, the Seventh Circuit told a Wisconsin union that it doesn’t matter because either there’s no standing or the court has already said this stuff before.
In the Ninth Circuit‘s view, the Supreme Court’s recent ruling in Roman Catholic Diocese of Brooklyn v. Cuomo “arguably represented a seismic shift in Free Exercise law.” It also compels the result in this nearly identical case, in which churches successfully challenged Nevada’s COVID-19 restrictions on in-person church attendance.
Allegation: Woman sentenced to Stevens County, Wash. work crew for 81 days must listen daily to county employee’s “repulsive comments regarding masturbation, sex, and other people’s wives, daughters, and girlfriends,” among much else. Which was “inappropriate and unacceptable,” says the Ninth Circuit, but not cruel and unusual. Qualified immunity. And no suing the county either.
Pretrial detainee sues Jefferson County, Colo. jail, alleging guards put him in proximity to another inmate despite an order not to and then didn’t intervene quickly enough when that inmate attacked him, resulting in a five-day hospital stay. His complaint, filed without counsel, is dismissed as frivolous, and he misses the deadline to appeal. Man: I am homeless. I don’t have an address or phone number. Tenth Circuit: The complaint was properly dismissed. But we think he can try to revive it.
Allegation: Denver and Aurora, Colo. police arrest suspect outside his apartment. They don’t have a warrant to search the apartment, and the suspect repeatedly denies permission to enter, but officers go in with guns drawn, finding suspect’s sleeping infant. Tenth Circuit: We have caselaw saying you can sue officers who fail to intervene to stop other officers from using excessive force or making unlawful arrests. But this is an unlawful entry claim, and there are no (published) cases about failing to intervene in those. Qualified immunity.
Abortion protestors sue City of Norman, Okla., challenging the city’s disturbing-the-peace law. (Some of the protestors had previously been cited under the law for shouting, using loudspeakers, and the like.) District court: The protestors’ request for a preliminary injunction is denied; their First Amendment challenge is unlikely to succeed. Tenth Circuit: Just so. The law targets the volume of speech, not the content.
During Parkland, Fla. high school shooting, the police officer in charge of school security stood outside the building with his gun drawn and made no attempt to intervene. Police responding to the shooting likewise “staged” outside the school. Students sue, claiming this lackadaisical response violated due process. Eleventh Circuit: Police do not have a duty to protect schoolchildren from harm, as they are not in police custody. Students can state a due process claim only if they allege that police intended to cause them harm, and the students allege nothing like that here.
If not for the pandemic, Elizabeth Brokamp could provide talk therapy to D.C. residents in person in Virginia, where she is a licensed professional counselor. But now she is only seeing clients online, and she cannot talk to new D.C. clients at their D.C. homes without a D.C. license. As a result, when D.C. residents have contacted her asking for help, she has had to turn them away. Now Elizabeth has joined with IJ to challenge D.C.’s licensing restriction as a violation of the First Amendment. Talk therapy is speech; Elizabeth doesn’t prescribe drugs or do anything other than talk. And under the First Amendment the government cannot prohibit unauthorized talking. Click here for more.
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Not allowed, says Delaware Court of Chancery Vice Chancellor Joseph R. Slights III, dealing with my notice opposing such sealing. (Many thanks to my local counsel Garrett Rice of Ross Aronstam & Moritz LLP for all his invaluable help, and to UCLA law student Jenna Battaglia, who worked on the case with me.) Here is an excerpt from the Vice Chancellor’s opinion; for similar federal cases, see Parson v. Farley(which I had also filed) and Holmes v. Grambling:
Court of Chancery Rule 5.1 … codifies the “powerful presumption of public access” to court proceedings and records…. [Confidential treatment is allowed only if a party] can demonstrate that “the public interest in access to Court proceedings is outweighed by the harm that public disclosure of sensitive, non-public information would cause.”
By design, the burden of demonstrating [this] is exacting, recognizing that “[t]hose who decide to litigate in a public forum … must do so in a manner consistent with the right of the public to follow and monitor the proceedings and the result of [the] dispute.” In this regard, our courts appreciate that public access to the courts and their business is “fundamental to a democratic state and necessary in the long run so that the public can judge the product of the courts in a given case.” And the public cannot “judge the product of the courts in a given case” if the information being withheld is necessary for understanding “the nature of the dispute” or the court’s bases for a decision….
There’s more, which you can see at the original post. Today, the Court of Chancery actually unsealed the documents (I presume because the time for appeal has lapsed), and we now know what the allegations were; I underline the material that had been redacted:
[3.] MetTel discovered that Granite has undertaken a coordinated effort, which appears to stretch from entry level sales personnel all the way to the CEO, to contact current and potential MetTel clients and tell them that MetTel is in dire financial straits and not likely to survive the COVID-19 crisis. These statements are completely false without any basis in fact, and Granite either knows they are false or is recklessly indifferent to whether they are true or false. Granite is making these false statements to sow doubt with MetTel’s existing and potential clients about MetTel’s near term viability, and generate fear of losing essential telecommunications services in the near future.
[4.] Granite’s conduct is even more despicable because many of MetTel’s clients are in healthcare, public service, public safety, and federal, state and local governments. MetTel provides essential services for its clients—a service all the more essential under the current circumstances, when the majority of employees in the U.S. who are able to do so are working solely by telecommuting, and telecommunications is the only practical way to remain connected to patients, customers and the public. Even more so during these times, clients need to know they are partnered with a financially secure company who can ensure continuation of their telecommunications services, which they are with MetTel. False word of MetTel’s supposedly impending financial ruin is the kind of rumor that will spread throughout the market and poison MetTel’s prospects, particularly among those for whom an interruption in telecommunications services would be the most devastating at this time: healthcare and government operations on the front lines of the pandemic….
[17.] Granite has begun telling MetTel’s current and potential clients—falsely—that MetTel is in bad financial shape and probably will not survive the COVID-19 crisis. The purpose of these lies is to convince MetTel’s clients and potential clients that MetTel is an unreliable telecom provider that will likely leave them without essential services when they are needed most….
There are a few other such items throughout the Complaint, and some supporting exhibits, but this seems to be the heart of the matter. I pass it along so readers can see for themselves how it bears on the sealing question on which I intervened, and which I had blogged about. (Naturally, I have no opinion on whether the allegations about MetTel were indeed libelous; that is left to be determined, though in a normal, publicly accessible proceeding.)
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