When exactly did the shadow docket begin? People are now arguing about what was the first relevant shadow docket case, but those disagreements turn on stated and unstated assumptions. The answer depends on how you define the shadow docket. I need to give some more thought to exactly what the “shadow docket” is.
My colleague Stephanie Barclay suggests that the shadow docket actually began on New Year’s Eve 2013 when Circuit Justice Sotomayor granted emergency relief to the Little Sisters of the Poor.
I wrote about this moment at some length in Chapter 15 of my 2016 book, Unraveled: Obamacare, Religious Liberty, and Executive Power. I will include an excerpt of the book after the jump.
Here, I will offer a few reasons why the Little Sisters order can be distinguished from the Clean Power Plan order about two years later. This ruling may still qualify as the first shadow docket entry under certain assumptions, but I have some doubts.
First, the Little Sisters of the Poor were only seeking an exemption for themselves. Other litigation had been filed throughout the country by other religious non-profits. Almost all of those courts had granted emergency relief to the plaintiffs. Only two plaintiffs were denied relief: the Little Sisters of the Poor and Notre Dame University. Notre Dame did not file an emergency appeal to the Supreme Court. Instead, they caved and made coverage of emergency contraception available under their plan. The Little Sisters, represented by the Becket Fund, would file an emergency application with Circuit Justice Sotomayor. With modern emergency docket litigation, plaintiffs often seek universal relief, whether through nationwide injunctions, vacatur, certified classes, or broad associational standing. Outside death penalty cases, it is rare for the Supreme Court to grant emergency one-off relief. Mirabelli is one such case.
Second, the Clean Power Plan litigation was somewhat unique in that the case began at the D.C. Circuit. There were no district court proceedings. Moreover, the Supreme Court issued its stay of the executive action before the D.C. Circuit had an opportunity to rule. By contrast, for the contraception mandate, the District Court and the Tenth Circuit both denied relief after full briefing and consideration. Justice Sotomayor’s order in no way short-circuited the appellate process. Moreover, Sotomayor did what virtually every court had done at that point.
Third, on December 31, 2013, Justice Sotomayor granted what we would now call an administrative stay:
IT IS ORDERED that [the government is] temporarily enjoined from enforcing against [the Little Sisters of the Poor] the contraceptive coverage requirements imposed by the Patient Protection and Affordable Care Act, and related regulations pending the receipt of a response and further order of the undersigned or of the Court. The response to the application is due Friday, January 3, 2014, by 10 AM.
To be precise, if the shadow docket was born with the Little Sisters, the birth occurred twenty-one days later on January 24, 2014, when the full Court issued a one-paragraph order:
The application for an injunction having been submitted to Justice Sotomayor and by her referred to the Court, the Court orders: If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit. To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators. The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court’s views on the merits.
A few things stand out here. The Court to did not enjoin the contraceptive mandate altogether. It granted relief to one party, and only one party. There was no suggestion at the time this ruling set a precedent, which other parties could rely on. Notre Dame, which did not appeal, did not benefit from this ruling. Instead, the Court effectively granted an accommodation to a single plaintiff. This sort of tailored remedy stands in stark contrast with the sweeping relief granted in the Clean Power Plan case. That ruling completely enjoined the policy nationwide.
Fourth, in the Clean Power Plan case, it is pretty clear the Obama Administration was trying to rush the policy to “bake it in” before the Supreme Court could review it. Will Baude suggested that the Chief Justice was “concern[ed] that the executive branch [was] openly circumventing the federal courts.” The Obama Administration was not trying to circumvent all federal court review. They were content to run out the clock in the favorable D.C. Circuit. DOJ was trying to avoid Supreme Court review. There was some gamesmanship.
But I don’t think there was a similar gaming for the contraceptive mandate. The ACA statute provided that the employer mandate would go into effect on January 1, 2014 (though the statute itself said nothing at all about contraception coverage). You may recall that initially, the Obama Administration argued that the “penalty” enforcing the individual mandate was a tax, and since the tax would not be collected until 2014, the challenge to Obamacare in 2010 was not yet ripe in light of the Tax Anti-Injunction Act. This was a clever way of “baking in” Obamacare before the Supreme Court could review it. But DOJ abandoned this strategy once they realized they needed the taxing power argument to save the law. There is lots of gamesmanship and playing keep-away from SCOTUS
Fifth, there is another reason to distinguish the Clean Power Plan and the Little Sisters of the Poor. This reason is somewhat political, but not really. There were no recorded dissents for the nuns. The Justices all likely agreed that the District Court in Colorado committed a clear error, and the ex ante status quo had to be preserved. In other words, the claim for legal relief was clearly established. That would seem to be a very strong factor in favor of granting emergency relief. The Clean Power Plan case split hard by a 5-4 vote. Such a sharp disagreement is almost certain proof that the basis for legal relief is not clearly established. This is what Justice Kagan wrote in her memorandum, and in many subsequent published dissents.
For these reasons, and others, I think it is tough to view the Clean Power Plan and the Little Sisters of the Poor on the same wavelength. I spoke with several DOJ lawyers at the time. They were a “little bit surprised” by the Court’s ruling. But this reaction pales in comparison to the shock the Obama Administration had after the Clean Power Plan ruling, where the Justices bypassed the lower court altogether.
Here is an excerpt from Chapter 15, titled “New Year’s Resolution.” As I’ve noted in other contexts, I wrote this book behind the veil of ignorance. The shadow docket wasn’t even a glimmer in my eye at the time. Indeed, if memory serves, I wrote this chapter before the Clean Power Plan ruling. (The book was sent to the press circa June 2016.)
15.1. “Adhere to Their Religious Conviction”
In September 2013, as a government shutdown loomed, and with only three months before the contraceptive mandate went into effect, the Little Sisters of the Poor finally challenged Accommodation 2.0 in court. One of their attorneys told me that they were very late to file because the Little Sisters didn’t want to have anything to do with litigation. But as New Year’s Eve drew near, the order of nuns were left with no other options. Over the next three months their lawyers at the Becket Fund for Religious Liberty anxiously waited for a decision. “We kept calling, saying, ‘hey we have an emergency coming up,'” the lawyer told me. “We needed an answer.”
Finally, late in the afternoon on Friday, December 27, the district court ruled against the Little Sisters. Judge William J. Martínez did not question whether the mandate conflicts with their religious beliefs. However, Martínez did “analyze the challenged regulations to determine whether their implementation will cause the allegedly harmful act to in fact occur.”1 Despite the Little Sisters’ objection to filling out the form, the court concluded that “nothing on the face of the Form expressly authorizes [providing] contraceptive care.” Signing the form “does not authorize any organization to deliver contraceptive coverage to Little Sisters’ employees,” the court concluded. As a result, Accommodation 2.0 does “not substantially burden Plaintiffs’ religious beliefs,” and the Little Sisters are not actually “required to buy into a scheme that substantially burdens their religious beliefs.”
At that time, the overwhelming majority of courts had already granted interim relief to religious non-profits. One of the attorneys for the Little Sisters was shocked that the court ruled against them. “I would have thought that of all the clients in the country who were going to get relief from the lower courts, the one I don’t need to worry about is the Little Sisters of the Poor, because who’s really going to turn down Little Sisters of the Poor? They’re so obviously religious that it’s idiotic to not call them a religious employer.”
After an all-nighter, the very next day the Becket Fund lawyers requested an emergency injunction from the Tenth Circuit Court of Appeals in Denver. The twenty-one-page brief explained: “By midnight on New Year’s Eve, Mother Provincial Loraine Marie Maguire must decide whether the Little Sisters should adhere to their religious conviction that they cannot participate in the Mandate, or whether they should sacrifice that religious belief to spare their ministry from the government’s crushing fines.” This prayer for relief would also go unanswered.
Three days later, at noon on December 31, 2013 – as it had done a year earlier with Hobby Lobby – the Tenth Circuit denied the injunction. Judges Paul Joseph Kelly, Jr. and Carlos F. Lucero found that under the accommodation, stage is not warranted.”
Like the year before, the Tenth Circuit’s refusal to put the mandate on hold was at odds with virtually all other federal courts to consider the issue. In seventeen out of nineteen cases, the courts had granted an injunction for the religious non-profits before the December 31 deadline. Leading up to New Year’s Eve, only the Little Sisters and Notre Dame University were denied an injunction by the lower courts.2
In early December, Father Jenkins, who had invited Obama to speak at Notre Dame four years earlier, explained that succumbing to the mandate will lead us “down a path that ultimately will undermine those [religious] institutions.”3 However, with a decision that surprised many, Notre Dame acquiesced to the Seventh Circuit’s order. A spokesperson for the university announced on December 31, “Having been denied a stay, Notre Dame is advising employees that pursuant to the Affordable Care Act, our third party administrator is required to notify plan participants of coverage provided under its contraceptives payment program.”4 Coverage of emergency contraceptives such as Plan B and Ella would soon become available through Notre Dame’s insurance plan.
Many criticized the university for not having a strong enough commitment to fight the mandate all the way. Father Bill Miscamble, a professor of history at Notre Dame, told the National Catholic Register that he was disappointed “with the tepid way in which Notre Dame has acquiesced with the Obamacare provisions and authorized its health-insurance administrator to implement the HHS mandate.”5 Notre Dame did not seek an injunction from the Supreme Court. I asked one of the attorneys for the Little Sisters why Notre Dame did not request emergency relief from the Justices. He replied, “I don’t know, and you will never find out.” Notre Dame continued to challenge the mandate in the lower courts, but by that point it had already complied with the accommodation.
Later that month, Pope Francis spoke about Notre Dame, saying, “[I]t is my hope that the University of Notre Dame will continue to offer unambiguous testimony to this aspect of its foundational Catholic identity, especially in the face of efforts, from whatever quarter, to dilute that indispensable witness…. And this is important: its identity, as it was intended from the beginning. To defend it, to preserve it and to advance it!” Notre Dame Professor Carter Snead saw the Pope’s remarks as encouraging the university to continue its fight against the contraception mandate: “The Holy Father’s words strike me as a timely and profound encouragement to Notre Dame in its continuing efforts to defend its religious liberty in court.”6 Patrick Deneen, also a Professor at Notre Dame, told National Review that “[o]n the same day that Pope Francis’s statement was publicized, members of the university community were given notice that we would be receiving new health ID cards for ‘women’s preventive services.'”7
The Little Sisters of the Poor would not be so easily deterred. Mother Provincial Loraine joked with one of her attorneys, “Well, really, how many nuns can they put in jail?”
15.2. “Sotomayor Drops Ball on Obamacare”
With less than twelve hours till the new year, the contraceptive mandate was barreling toward the Little Sisters like an oncoming train. Justice Sonia Sotomayor – who at that very moment was riding Amtrak to New York City – would soon pull the emergency brake. The Bronx native was invited to push the button to start the New Year’s Eve ball drop. The president of the Times Square Alliance exclaimed, “Who better to join us in the crossroads of the world than one of New York’s own?”8 Sotomayor would receive notice of the Little Sisters’ emergency petition around 5:00 PM while she was on the northbound train from Union Station to Penn Station. Fortunately, Amtrak’s wireless Internet actually worked that evening.
The Little Sisters made their case: “Mother Loraine must make that decision by midnight tonight, unless relief is granted by this Court.” There was a strong sense of déjà vu to this appeal. The Becket Fund represented both Hobby Lobby and the Little Sisters. And just like the year before, the attorneys were forced to frantically file a last-minute appeal with Circuit Justice Sotomayor on December 31. The year before, Sotomayor rebuffed Hobby Lobby. Fortunately, should old acquaintance be forgot and never brought to mind, this prayer for extraordinary relief was answered.
Before Justice Sotomayor released the Waterford Crystal Ball over the Crossroads of the World, she would first release an injunction halting the contraceptive mandate. Or, as The Drudge Report more colorfully captioned it, “Sotomayor Drops Ball on Obamacare.”9 At 10:00 PM, Mark Rienzi’s phone rang. It was Danny Bickel, the Supreme Court’s Emergency Applications clerk. Capital defense lawyers have dubbed Bickel “the death clerk” because he handles the eleventh-hour requests to stay executions.10 But tonight, there was a far less somber call to make. Bickel told the Becket Fund attorney that the Court would soon issue an order, and he would send him a copy. Around 10:15 PM, as hundreds of thousands massed in Times Square, Sotomayor issued a one-paragraph order:
IT IS ORDERED that [the government is] temporarily enjoined from enforcing against [the Little Sisters of the Poor] the contraceptive coverage requirements imposed by the Patient Protection and Affordable Care Act, and related regulations pending the receipt of a response and further order of the undersigned or of the Court. The response to the application is due Friday, January 3, 2014, by 10 AM.
Success! But this was an ephemeral victory, and the nuns’ angst was not quite over. Sotomayor’s December 31 order was only temporary. That evening, Mark Rienzi called Mother Loraine, who had “been praying about what she was going to do tomorrow.” He told her, “[W]e at least have life for a little while.”
As the nuns hailed Mary, Miley Cyrus twerked away 2013 in Times Square.11 Fortunately, the New York Times observed, “Viewers should not expect to see Ms. Cyrus twerking near Justice Sotomayor.”12 The Justice had a private space to handle these more pressing matters.13
15.3. Accommodation 3.0
On Friday, the government submitted its reply, and urged the Court that the injunction should be denied. “Applicants claim a right to extraordinary relief,” the solicitor general wrote, “even though compliance with the procedure they challenge will not result in anyone else’s provision of the items and services to which applicants object.” Recall that under Accommodation 2.0, the nuns, would not have to pay for the contraceptives. The Becket Fund lawyers replied that same day in a plea to keep the injunction in place:
The temporary injunction issued Tuesday night saved Mother Provincial Loraine Marie Maguire from the choice of violating her faith by executing the government’s required form, or exposing the Little Sisters’ ministry to decimation by IRS penalties. She exercised her religion that night, and each day since, by acting in accordance with God’s will as she understands it. The temporary injunction protected, and continues to protect, that religious exercise. That injunction should remain in place.
Twenty-one days of silence from the Court would follow. Then on January 24, the Justices issued a one-paragraph order:
The application for an injunction having been submitted to Justice Sotomayor and by her referred to the Court, the Court orders: If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit. To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators. The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court’s views on the merits.
Simply stated, if the Little Sisters notify the government in writing that they “have a religious objection to providing coverage for contraceptive service,” which they obviously do, they are exempted from the contraceptive mandate altogether. I will refer to this approach as Accommodation 3.0, although in effect it mirrors the exemption given to the houses of worship. Rather than having to certify a religious objection, which would serve as notice for the insurer to begin paying for contraceptive coverage, under Accommodation 3.0, the employees of the Little Sister would not receive the coverage at all. There was no need for the Little Sisters to use the form provided by the government. Critically, however, the Justices stressed that “this order should not be construed as an expression of the Court’s views on the merits.” With that order, the Little Sisters finally received the relief they needed.
There was no recorded dissent to the order, but that does not mean that all of the Justices in fact agreed. For example, when the court refuses to halt an execution, Justice Ginsburg has explained that the lack of dissent on a last-minute appeal does not mean everyone concurs: “When a stay [of execution] is denied,” she observed, “it doesn’t mean we are in fact unanimous.”14
A senior DOJ official told me that they “were a little bit surprised” by the claim of the Little Sisters of the Poor and other religious non-profits. In contrast with Hobby Lobby, where the position of the government was that there was no RFRA claim at all, for the Little Sisters, there had been this evolution of working to try to frame that accommodation that would work for religious non-profits, or at least the vast majority of them. He added that there had been a lot of discussions between the administration and representatives of religious organizations to try to find some common ground, to find some way to make it work. That resulted in these changes over time in the nature of accommodation. That is, the upgrade from Accommodation 1.0 to 2.0. The Justice Department, he explained, did think by the time we’ve gotten to the idea of the form, that it would be perceived that we had avoided a substantial burden on religion and come up with a system that really seemed fair and would work. He shrugged his shoulders, and said, “So I think we were a little surprised about the stay.”
The Little Sisters’ fight was far from over. The case would be sent back to the Tenth Circuit Court of Appeals for another round of litigation. But first, exactly two months later on March 25, 2014, the Supreme Court would hear oral arguments in Sebelius v. Hobby Lobby Stores.
The post "Sotomayor Drops The Ball on Obamacare" And The Shadow Docket appeared first on Reason.com.
from Latest – Reason.com https://ift.tt/1AYBEQs
via IFTTT
