Reviewing Administrative Action: Salinas v. RR Retirement Board

The U.S. Railroad Retirement Board said, “we refuse to reconsider our decision to deny a railroad worker disability benefits.” The Supreme Court replied, “Fine. Federal courts can review your refusal.” The vote was 5:4. The majority’s decision is another win for those—like me—who generally favor judicial review of administrative action. But the win is a shaky one; the Justices disagreed about how to interpret a single clause in an Act of Congress, and both interpretations are intrinsically valid.

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Fides et Ratio: Espinoza v. Montana Dept. of Revenue

Fides et ratio, or “faith and reason,” was the penultimate encyclical of Pope John Paul II. He argued that faith and reason do—and must—go hand in hand. Doubtless, among those who would agree with this principle are the Montana parents who sued in Espinoza v. Montana Dept. of Revenue to send their children to parochial schools after winning tax-credit-funded scholarships. At first, the parents lost; the Montana Supreme Court invalidated the entire scholarship program. Last week, however, the U.S. Supreme Court reversed that decision by a 5:4 vote, concluding that it violates the Free Exercise Clause of the First Amendment to strike down the program under a version of the Blaine Amendment in the Montana state constitution. Here’s my analysis.

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The Calm Before the Storm: Weekly Brief for June 22

This week was relatively quiet, especially as the Court nears the end of its term. The Justices decided just two cases: Liu v. SEC (an arcane securities law case) and DHS v. Thuraissigiam (challenging asylum denials in court). They didn’t grant any new cases. Court-watchers enjoyed a brief lull after the tumultuous Title VII and DACA decisions last week, but that lull won’t last long. We’re the unguarded tree in the photo above, facing an impending deluge of 13 major decisions to be handed down over the next few weeks. So as we await the Court’s decisions in matters concerning abortion, Trump’s tax returns, religious liberty, Obamacare, free speech, and the Electoral College (among others), there’s just one thing to say: I hope you enjoyed the calm before the storm.

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Dream On, DACA! DHS v. University of California

Yesterday, Chief Justice Roberts concluded that the Trump administration violated the Administrative Procedure Act when it attempted to rescind Deferred Action for Childhood Arrivals, or DACA. Roberts’ opinion is momentous—both in what it says and in what it does not say. For example, Roberts is coy on whether DACA itself is legal. He concludes only that the manner in which the Trump administration sought to cancel it did not follow the proper administrative procedure. On the other hand, three Justices—Clarence Thomas, Samuel Alito, and Neil Gorsuch—were not shy in saying the opposite, bluntly declaring that DACA is illegal and that there’s no other justification required to terminate it. For now, Roberts’ opinion keeps DACA on the books and its recipients in the country. Their dream remains alive, albeit temporarily. Read more for an in-depth analysis of the Court’s decision in Department of Homeland Security v. Regents of the University of California.

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The Taxes Are Back in Town: Weekly Brief for May 11

President Trump’s tax returns? Check. “Faithless” members of the Electoral College? Yep. Whether half of Oklahoma is actually Native American land? Check that one too. And the Establishment Clause’s “ministerial” exception? You got it. The Supreme Court heard oral arguments this week on all of these issues, rounding out what was perhaps the biggest argument week of the term (and also the Court’s last). Given the stature of these cases, you’d be forgiven if you didn’t notice the Court also released one decision this week (it was pretty innocuous). Here’s a recap of the action at our nation’s highest court this past week.

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A $12 Billion Tab: Weekly Brief for April 27

The Supreme Court handed down three decisions this week, each one consequential in its own regard. In the only Second Amendment case of the term, six Justices found the case to be, well, no longer a case—in other words, they dismissed it as moot and didn’t opine on the Second Amendment implications (see my in-depth analysis of the decision here [forthcoming]). Next, the Court slapped Congress and the Department of Health and Human Services on the wrist—along with a $12 billion tab due private insurers. Finally, a 5:4 majority barred legislators from copyrighting annotations they write to state laws. Here’s your brief for the week of April 27.

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