The justice will hear oral arguments in Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission and Rivers v. Guerrero this morning. Catholic Charities is one of three religious rights cases the justices will hear in the final weeks of the 2024-25 term’s arguments. The social ministry arm of the Catholic diocese in Wisconsin urges the justices to rule
that the state violated the group’s constitutional rights when Wisconsin failed to give it a religious tax exemption from state unemployment tax.
Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Monday morning read:
The Supreme Court on Wednesday was divided over whether Planned Parenthood has a legal right under federal civil rights laws to challenge the order by South Carolina’s governor barring abortion clinics, including Planned Parenthood, from participating in Medicaid.
During more than 90 minutes of oral arguments, the justices struggled to determine whether the Medicaid law on which Planned Parenthood relies must use specific words to signal that Congress intended to create a private right to enforce it – and, if so, what those words might be.
For 60 years, the Medicaid program has provided medical care to more than 72 million Americans of limited financial means. Congress enacted the law pursuant to its power under the Constitution’s spending clause, which allows it to attach conditions to the federal funds that it gives to states.
In 2018, South Carolina Governor Henry McMaster ordered the state’s Department of Health and Human Services to prohibit abortion clinics from participating in the Medicaid program. Federal law generally bars the use of Medicaid funds for abortions. Planned Parenthood provides other medical services, such as gynecological and reproductive care but also screenings for cancer, high blood pressure, and high cholesterol. But because money is fungible, McMaster reasoned, any Medicaid funds that go to clinics where abortion is provided would effectively subsidize “abortion and the denial of the right to life.”
Julie Edwards, a Medicaid patient in South Carolina who suffers from diabetes and has used Planned Parenthood for birth control, went to federal court in South Carolina along with Planned Parenthood. They contended that McMaster’s order violated a provision of the Medicaid Act that allows any patient who is eligible for Medicaid to seek health care from any “qualified” provider.
The U.S. Court of Appeals for the 4th Circuit agreed with Planned Parenthood and Edwards that the Medicaid Act creates individual rights that can be enforced under federal civil rights laws, and it barred the state from excluding Planned Parenthood from its Medicaid program.
John Bursch, a lawyer for the conservative advocacy group Alliance Defending Freedom, represented the state. He told the justices that for laws enacted pursuant to Congress’s spending clause power, “clear rights-creating language is critical to creating private rights. Congress did not use” such language in the “any qualified provider” provision, he stressed. Indeed, he noted, Congress “knows how to clearly confer a private right to choose a provider” when it wants to do so, as it did in the Federal Nursing Home Reform Act.
Justice Clarence Thomas asked Bursch whether the word “right” is “absolutely necessary in order to determine whether or not a right has been created” under the “any qualified provider” provision.
Bursch answered that “if Congress wants to be clear, ‘right’ is the best word, but we would take its functional equivalent” – for example, “entitlement” or “privilege.”
Thomas’s question kicked off a debate that continued on and off throughout the morning’s argument: Does a federal law only create a privately enforceable right if it uses specific – or as some justices put it, “magic” – words?
Justice Sonia Sotomayor told Bursch, “You’re not quite calling it a magic word, but you’re coming very close.”
Bursch countered that what states need is a “clear statement” about their obligations under the Medicaid Act.
But Sotomayor was unconvinced. “It seems a little bit odd,” she suggested, “to think that a problem that motivated Congress to pass this provision was that states were limiting the choices people had.” In light of that history, she posited, it “seems hard to understand that states didn’t understand that they had to give individuals the right to choose a provider.”
Justice Amy Coney Barrett echoed Sotomayor’s concern about the purpose of the “any qualified provider” provision. If I want to go see the provider of my choice, she said, but the state has disqualified him from participating in Medicaid, “You’re depriving me of my ability … to see the provider of my choice. And nobody’s disputing that” the physician “can provide the services in a competent way that I want to have.”
Justice Brett Kavanaugh was more supportive of the idea that laws should have to use specific words to create privately enforceable rights. The Supreme Court, he observed, “has failed to give guidance … that lower courts can follow, that states, providers, and beneficiaries can follow.” What words, he asked Bursch, would create such rights, “rather than having something like ‘or its functional equivalent,’ would could” lead to “another decade of litigation”?
Bursch suggested that the words “rights,” “entitlement,” “privileges,” and “immunities” would fit the bill. “If you don’t limit it to those few words,” he told the justices, “then all of a sudden, the floodgates are open.”
Representing the federal government, Kyle Hawkins told the justices that their cases “emphasized that rights-creating statutes are atypical. But” the “any qualified provider” provision, he stressed, “is a run-of-the-mill spending clause statute, and holding otherwise would invite line-drawing problems.”
Sotomayor pressed Hawkins, observing that the federal government for two decades had contended that the “any qualified provider” provision could be privately enforced through federal civil rights laws. Although the government now contends that it had changed its position after the court’s decision in Health and Hospital Corporation of Marion County, Ind. v. Talevski, holding that nursing-home residents could use federal civil rights laws to enforce two provisions of the Federal Nursing Home Reform Act, Sotomayor suggested that in Talevski the court had simply “reiterated” its analysis in an earlier decision. “Did you need a hit over the head,” she asked, “meaning did you need for us to say it a second time before you understood it?”
Kagan contended that imposing a “magic words” requirement would be “kind of changing the rules midstream.” Congress, she emphasized, enacted the Medicaid Act a long time ago. “And if we come in now and say you have to use one of these three words,” she noted, it might be useful for future laws, “but it’s not a fair way to interpret statutes that Congress passed many years ago.”
Unlike Bursch, Hawkins declined to suggest specific words that would create a privately enforceable right. He agreed that words like “right,” “entitlement,” “privilege,” and “immunity” “would count,” but he suggested that “a helpful way to think about it” is that “we’re looking for words that have a real rights-creating pedigree in our nation’s history and legal traditions.”
But that answer did not necessarily please Kavanaugh, who told him that Kagan had “raised good points about how, once you open it up like that, there are going to be line-drawing problems. You’re not going to solve the issue that you came here to solve.”
Nicole Saharsky, who represented Planned Parenthood, told the justices that there is no dispute that South Carolina violated the Medicaid Act when it denied Julie Edwards “her choice of a qualified and willing provider.” “The only question,” she said, “is whether she can do something about it, to sue under” federal civil rights laws.
The “any qualified provider” provision, Saharsky maintained, “uses mandatory, individual-centric, rights-creating language. The only thing it doesn’t do,” she said, “is use the word ‘right.’ And this Court has repeatedly said that magic words aren’t required.”
The justices raised other concerns as well. Barrett questioned whether allowing the 4th Circuit’s ruling to stand would “open the floodgates of people bringing” similar suits, “or is this kind of a pretty unusual circumstance?”
Hawkins answers that it was “hard to say it’s unusual,” adding that the “any qualified provider” provision was “the most litigated provision” in the statute.
Saharsky pushed back against any idea that a ruling in her clients’ favor would lead to more lawsuits, noting that the 6th Circuit had issued a decision similar to the 4th Circuit’s “more than 20 years ago. If the flood of lawsuits was supposed to happen, we would expect to see it.”
Moreover, she added, there is no real benefit to Medicaid patients from bringing lawsuits to challenge the denial of their provider of choice. Money damages are not available, she noted. “These aren’t people getting rich,” she said. “They’re just trying to get healthcare here.”
Kavanaugh voiced what he characterized as a “broader separation-of-powers concern” – the idea that “Congress creates rights of action and remedies, not the Court.” For more than two decades, Kavanaugh told Saharsky, the Supreme Court had “really tightened up” on creating causes of action, “and said essentially that far and no further.”
Saharsky countered that this dispute involves “an express cause of action” under the federal civil rights laws, so there is no need for the court to create one. And she conceded that there “is a high bar to find that Congress put in place an individually-enforceable right. What we’re saying is that this provision meets the bar.”
Justice Samuel Alito was similarly skeptical, describing it as “quite extraordinary” for the court to find that a law enacted pursuant to Congress’s spending clause power creates a privately enforceable right of action. And if a federal civil rights lawsuit can follow “whenever Congress uses the word ‘individual,’” he told Saharsky, “then all sorts of provisions could give rise to” liability. “Congress,” he said a few minutes later, “may well have had in mind” that the state needs to provide Medicaid beneficiaries with the ability to choose their own qualified health-care providers, “but not that this is something that allows an individual to sue in court.”
In his rebuttal, Bursch argued that “the fact that the 12 of us can have such a robust conversation about whether this statute is mandatory or not, whether it’s rights-creating or not, demonstrates that the rights-creating language is ambiguous, not clear and explicit. And if there is any ambiguity in this context,” he concluded, “the state has to win because it’s not being put on notice of when it might be sued.”
A group of nonprofits challenging the layoffs of thousands of probationary employees urged the Supreme Court to leave in place an order by a federal judge in San Francisco that would require the federal government to reinstate more than 16,000 employees who were fired by six agencies in February. “It strains credulity that returning employees to work would cause irreparable harm to the Government,” the group said in a 40-page filing
, “when these employees had the same workplaces, credentials, benefits, and training just a few weeks ago.”
In the federal government, probationary employees are those who have been newly hired for a position, normally within the past year. Not all probationary employees are new to the federal government or the workforce, however; the term also applies to experienced federal employees who transfer to a new role. In February, the Trump administration fired tens of thousands of probationary employees as part of its broader effort to shrink the size of the federal workforce.
The nonprofits that contend that layoffs could lead to fewer government services, affecting their members, went to federal court on Feb. 19, arguing that the Office of Personnel Management’s actions violated several different provisions of the federal law governing administrative agencies.
The government insisted that OPM had not been responsible for any of the firings. But Senior U.S. District Judge William Alsup concluded, based on a “mountain of evidence,” that “OPM directed other agencies to fire their probationary employees” under false pretenses – with the agencies citing poor performance but with OPM telling the agencies themselves that performance ratings did not matter in determining who should be fired.
At a hearing on March 13, Alsup issued a preliminary injunction that ordered OPM and six agencies – the Departments of Veterans Affairs, Agriculture, Defense, Energy, Interior, and the Treasury – to immediately reinstate the probationary employees who had been fired.
The U.S. Court of Appeals for the 9th Circuit fast-tracked the government’s appeal, setting a briefing schedule that requires the government to file its opening brief on April 10, but declined to pause Alsup’s order while that appeal plays out.
Acting Solicitor General Sarah Harris went to the Supreme Court on March 25
, asking the justices to intervene. Alsup’s ruling, she contended, allows “third parties” like the groups in this case to “highjack the employment relationship between the federal government and its workforce.”
In their filing on Thursday, the groups counter that the government is wrong when it contends that the groups lack a legal right to sue, known as standing, to challenge the firings of probationary employees. For example, they note, the termination of probationary employees who worked for the Department of Veterans Affairs “has already had and will imminently continue to have serious negative consequences” for members of the veterans’ non-profit in the case.
Nor is the government correct, the groups continue, when that it contends that “no one can challenge the illegal mass firing of federal employees by OPM, because the only way to challenge termination of federal employees is” for each individual employee to go to the Merit Systems Protection Board.
And Alsup did not go beyond his power, the groups say, when he ordered the government to reinstate fired employees. Instead, he merely “restored the status quo that existed prior to OPM’s illegal conduct, and reinstatement is a routine remedy in the fact of illegal termination.”
A federal district court in Maryland also issued an order that temporarily stopped the firings, and required the reinstatement, of probationary employees at 20 different federal agencies who live and work in the 19 states (along with the District of Columbia) that brought the case.
The U.S. Court of Appeals for the 4th Circuit rejected the government’s request to put that order on hold. The government’s efforts to comply with the district court’s order in this case, the groups suggest, establish that any burden on the government from complying with Alsup’s order to reinstate the fired probationary employees is not insurmountable.
The Racketeer Influenced and Corrupt Organizations Act provides for federal criminal and civil penalties for harms from “racketeering.” Wednesday’s ruling in Medical Marijuana, Inc v. Horn
, like so many of the court’s RICO decisions, involves the civil penalties.
Douglas Horn was fired from his commercial truck driving job after he ingested a product marketed as including only CBD (cannabidiol, which is completely legal) rather than THC (tetrahydrocannabinol, which continues to be illegal in many contexts) and failed a drug test. Justice Amy Coney Barrett’s opinion for a sharply divided court on Wednesday upheld liability for damages to a business or property that flow from personal injury, a win for Horn at this stage. The case now will return to the lower court.
The question before the court involves the RICO clause that requires the claimant to show that it has been “injured in [it]s business or property.” For Barrett, it is wholly irrelevant that an injury to business or property might have been preceded by, or flowed from, a personal injury. She acknowledges that the statute “does not allow recovery for all harms,” because the “explicit permi[ssion of] recovery for harms to business and property … implicitly excludes recovery for harm to one’s person.” For her, though, that requirement “operates with respect to the kinds of harm for which the plaintiff can recover, not the cause of the harm for which [it] seeks relief.” She offers the example of “the owner of a gas station [who] is beaten in a robbery.” He “cannot recover for his pain and suffering. But if his injuries force him to shut his doors, he can recover for the loss of his business.” In other words, she writes, “a plaintiff can seek damages for business or property loss regardless of whether the loss resulted from a personal injury.”
Barrett presents the main argument of the defendants (led byMedical Marijuana, Inc., one of the the businesses that made the THC-laced CBD products at the center of the case) as viewing the reference to a plaintiff “injured” in a particular way as having a “specialized” meaning under which the originating injury must be “an invasion of a business or property right” that amounts to “a business or property tort.” Under that theory, because the initial invasion here was purely personal (ingestion of Medical Marijuana products), Medical Marijuana would face liability. But Barrett finds that in the contest between “an ordinary and specialized meaning,” the “context cuts decisively in favor of ordinary meaning,” largely because the specialized meaning is most common for references to a type of “injury” rather than to the people that are “injured.”
The defendants also urge the court to look to antitrust cases requiring allegations of “business or property injuries” to “track common-law torts.” Barrett rejects that argument, agreeing that the court’s “modern antitrust precedent forecloses recovery for certain economic harms” because of the court’s decision “to require … an injury of the type the antitrust laws were intended to prevent.” Previous cases, though, have conclude that “transplanting this … interpretation … into the RICO context would be inappropriate,” so she declines to do it here.
Barrett closes with caution, emphasizing that Horn’s case faces many obstacles. “First and foremost,” she notes, RICO requires a “direct” relation between the injury and the racketeering conduct: “The key word is ‘direct’; foreseeability does not cut it. … Given the number of steps in Horn’s theory …, this requirement may present an insurmountable obstacle in his case.” Second, she points to the requirement of a “pattern” of racketeering activity. Here, “harm resulting from a single tort is not a ticket to federal court for treble damages,” so Horn will need to persuade the lower courts that there was not only a single wrongful act, but multiple acts.
Justice Clarence Thomas dissented, writing with some frustration that by the time the case came to oral argument the contentions of the parties were so far removed from those presented in the original papers that the court should have dismissed the case as improvidently granted. His comments echo the complaint of Justice Samuel Alito in Monday’s argument in Rivers v. Guerreroabout a “mini epidemic of cert petitions” that lead to arguments on the merits that are “quite a bit different from what we were sold at the petition stage.”
Justice Brett Kavanaugh, joined by Chief Justice John Roberts and Alito, filed a separate and vigorous dissent, expressing deep concern about the federalization of garden-variety tort litigation.
Despite the tone of the dissents, Barrett’s opinion seems to resolve the case on grounds that will not resonate widely in civil RICO litigation. Though only time will tell, my guess is that the case will not cause a substantial uptick in that area.
The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.
Over the past couple of conferences, the Supreme Court has continued to clear out the rolls of relisted cases. Remarkably, the Supreme Court denied review without comment in the most recent newly relisted case
, Escobar v. Texas
, in which Texas conceded that erroneous DNA evidence had contributed to the defendant’s conviction for capital murder.
The court also denied review this week in Shockley v. Vandergriff
, which asked the justices to decide whether the fact that an actual judge considered a prisoner’s claim to be meritorious was enough to demonstrate that “reasonable jurists could debate” the claim — the showing necessary for a prisoner to obtain the “certificate of appealability” necessary under federal law to appeal the denial of the prisoner’s habeas corpus petition. Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson, dissented from the denial of certiorari
.
That brings us to the upcoming conference. There are 96 petitions and motions on the docket for this Friday’s conference. Only one of them is on its first relist: Villarreal v. Texas
.
David Asa Villarreal was the only defense witness at his trial in Texas state court for murdering his boyfriend and methamphetamine supplier Aaron Estrada. His direct examination was interrupted at noon by a lengthy overnight recess. The trial judge, in an instruction whose limits could charitably be described as “not a model of clarity,” told defense counsel to act as though Villarreal were still “on the stand,” and thus not to confer with him about his testimony overnight. In a series of offhand comments, the judge suggested counsel might still confer about sentencing and trial logistics, just not about Villarreal’s testimony. Villareal’s attorney objected that such an instruction interfered with his client’s right to confer with his counsel. The next day, Villarreal finished testifying, was convicted, and drew a 60-year sentence.
Villarreal’s case implicates two aging Supreme Court criminal procedure precedents. Geders v. United States
, held that a trial court violates the Sixth Amendment by prohibiting the defendant from speaking with his counsel during an overnight recess between the defendant’s direct and cross-examination. But Perry v. Leeke
, 13 years later, held that a trial court does not violate the Sixth Amendment by prohibiting the defendant from consulting his counsel during a fifteen-minute recess between his direct testimony and cross-examination.
By a 2-1 vote, the court of appeals affirmed Villarreal’s conviction, though noting confusion among the lower courts on the subject. And Texas’s highest court for criminal appeals, the aptly named Texas Court of Criminal Appeals, likewise affirmed by a divided vote. It concluded that by placing off limits only discussion of the defendant’s ongoing testimony, the trial court had complied with the Sixth Amendment.
Villarreal now seeks review, asking the court for further guidance about the universe of circumstances not covered by Geders and Perry. Texas opposes review on the ground that, “[w]hile there is a split of authority concerning such orders,” orders restricting a defendant’s conferring with counsel during substantial recesses “are rarely issued
.” The state argues that the decision in Villarreal’s case comports with the Supreme Court’s Sixth Amendment precedents.
On the one hand, it has been a long, long time since the Supreme Court last weighed in on this issue: Most readers would consider me an old man
, I have been practicing for over 30 years, and I didn’t even begin law school until the year after Perry was decided
. But the current courts shows little appetite for weighing in on constitutional issues of trial practice. This case seems unlikely to result in more than an opinion dissenting from denial of review. I would be happy to eat crow on this.
New Relists
Villarreal v. Texas
, 24-557 Issue: Whether a trial court abridges a defendant’s Sixth Amendment right to counsel by prohibiting the defendant and his counsel from discussing the defendant’s testimony during an overnight recess.
Returning Relists
Apache Stronghold v. United States
, 24-291 Issue: Whether the government “substantially burdens” religious exercise under the Religious Freedom Restoration Act
, or must satisfy heightened scrutiny under the free exercise clause of the First Amendment, when it singles out a sacred site for complete physical destruction, ending specific religious rituals forever.
(Relisted after the Dec. 6, Dec. 13, Jan. 10, Jan. 17, Jan. 24, Feb. 21, Feb. 28, Mar. 7, Mar. 21 and Mar. 28 conferences.)
Ocean State Tactical, LLC v. Rhode Island
, 24-131 Issues: (1) Whether a retrospective and confiscatory ban on the possession of ammunition-feeding devices that are in common use violates the Second Amendment; and (2) whether a law dispossessing citizens without compensation of property that they lawfully acquired and long possessed without incident violates the takings clause of the Fifth Amendment.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, Feb. 21, Feb. 28, Mar. 7, Mar. 21 and Mar. 28 conferences.)
Snope v. Brown
, 24-203 Issue: Whether the Constitution permits Maryland to ban semiautomatic rifles that are in common use for lawful purposes, including the most popular rifle in America.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, Feb. 21, Feb. 28, Mar. 7, Mar. 21 and Mar. 28 conferences.)
L.M. v. Town of Middleborough, Massachusetts
, 24-410 Issue: Whether school officials may presume substantial disruption or a violation of the rights of others from a student’s silent, passive, and untargeted ideological speech simply because that speech relates to matters of personal identity, even when the speech responds to the school’s opposing views, actions, or policies.
(Relisted after the Feb. 21, Feb. 28, Mar. 7, Mar. 21 and Mar. 28 conferences.)
Neilly v. Michigan
, 24-395 Issue: Whether restitution ordered as part of a criminal sentence is punishment for purposes of the Constitution’s ex post facto clause.
(Relisted after the Feb. 28, Mar. 7, Mar. 21 and Mar. 28 conferences.)
With most of the 2024-25 term behind them, the justices’ final stretch of oral arguments is stacked with all three religious rights cases of the year. All three cases look to the justices to take up an expansive view of the Constitution’s religious protections. The first of those cases, on Monday, could significantly shift the bounds of which organizations receive religious tax exemptions. In the other two, on April 22 and 30, the court will consider whether parents can opt to have their children excused from instruction with LGBTQ-themed storybooks, on religious grounds, and whether a Catholic online school can become the country’s first religious charter school.
At oral arguments on Monday, the court will take up a tax dispute between Wisconsin and Catholic Charities, which is a social ministry arm of each Roman Catholic diocese in Wisconsin. One Catholic Charities chapter contends that Wisconsin violated the Constitution when it rejected the group’s application for an exemption from a state unemployment tax that the state gives to churches, religious schools, and some religious groups.
The Catholic Charities chapter argues that the real question in the case is “whether Wisconsin can pick and choose which religious groups to tax based on the state’s own cramped, idiosyncratic understanding of what constitutes ‘religious’ behavior.” But Wisconsin counters that unless its rejection of the exemption stands, legislatures may have to choose between providing such accommodations to everyone or eliminating them altogether.
The chapter at the center of this case is the Catholic Charities for the diocese of Superior, in the northwestern part of the state. Its mission is to “carry on the redeeming work of our Lord by reflecting gospel values and the moral teaching of the church.” Four separate groups operating under the Catholic Charities umbrella in the diocese are also involved in the case; each primarily provides social services to people with disabilities.
In 2016, Catholic Charities sought an exemption from having to pay a Wisconsin unemployment tax for its employees, arguing that they fall within a provision of the statute that carves out from the definition of “employment” anyone who works for (as relevant here) “an organization operated primarily for religious purposes.” Catholic Charities contended that the exemption applies because it carries out its charitable works to put Catholic principles into operation.
A state labor commission rejected Catholic Charities’ bid for an exemption. It reasoned that the group’s activities are secular, even if its motivations are religious.
The Wisconsin Supreme Court concluded that the group was not operated primarily for religious purposes. Although its motivations are primarily religious, the state supreme court acknowledged, its activities are not: It does not “attempt to imbue” people who participate in its programs “with the Catholic faith nor supply any religious materials to program participants or employees.” Indeed, it added, the group both employs and offers its services to people of all faiths.
Catholic Charities came to the Supreme Court, which agreed on December 13 to decide whether, by denying the group the tax exemption because it did not meet the state’s criteria for religious behavior, Wisconsin violates the First Amendment’s religion clauses, which bar the government from establishing a religion and from interfering with the free exercise of religion.
In its brief in the Supreme Court, Catholic Charities tells the justices that “Wisconsin’s effort to pick and choose among religious groups — and carve out works of mercy from the realm of the ‘religious’ altogether — thus violates the Constitution three times over.”
First, the group argues, the denial of the exemption violates the doctrine of church autonomy – the idea that the government should not interfere in internal church affairs, and in particular in how a religious organization governs itself. The Wisconsin Supreme Court’s ruling defies this principle by penalizing Catholic Charities because of the way that it is organized, the group insists.
If Catholic Charities were part of the diocese, as a single nonprofit, it would undoubtedly be entitled to the exemption, the group observes. But, Catholic Charities continues, when the state denies the exemption because it is organized (along with the groups under its umbrella) separately, it is being penalized for following specific Catholic teachings about church governance – specifically, the concept of subsidiarity, the idea that when work can be more efficiently performed by a less centralized group, it should be.
By denying the exemption to Catholic Charities, the group writes, the state also violates the Constitution’s bar on the entanglement of church and state. “Put simply,” Catholic Charities argues, “Wisconsin has taken it upon itself to decide which activities can be religious and which ones can’t. That is wrong. Wisconsin courts should not be in the business of deciding religious questions.” What’s worse, the group suggests, Wisconsin has attempted to hold the Catholic Church to standards – such as proselytizing and limiting its services to members of its own faith – “that directly contradict the Catholic Church’s actual religious beliefs.” Catholic Charities posits that courts should use a different approach that focuses on “the sincerity and religiosity of a claimant’s beliefs rather than trying to decide whether particular activities are ‘inherently religious.’”
The denial of the religious exemption also amounts to discrimination among religions by the state, Catholic Charities tells the justices. The Wisconsin Supreme Court declined Catholic Charities’ request for an exemption because the group adheres to the Catholic Church’s teachings in providing services – which departs “from what Wisconsin judged to be ‘typical’ religious activities.” Moreover, the group added, the Wisconsin Supreme Court’s decision also discriminates “against religious groups with more complex” structures, because the diocese operates Catholic Charities and the groups under its umbrella “as separately incorporated ministries that carry out Christ’s command to help the needy. But if Catholic Charities were not separately incorporated, it would be exempt.”
The Trump administration filed a “friend of the court” brief supporting Catholic Charities
, noting that the Wisconsin law “mirrors and implements” a federal unemployment tax law. It tells the justices that they could reverse the Wisconsin Supreme Court’s ruling based only on the text of the law, which “makes clear that the inquiry focuses on whether the organization actually operates primarily for religious reasons, not on the nature of its activities or on whether another organization could undertake the same activities for nonreligious reasons.”
Two other “friend of the court” briefs – filed by the Jewish Coalition for Religious Liberty
and the International Society for Krishna Consciousness
– assert that the Wisconsin Supreme Court’s reasoning could have a particularly negative effect on religious minorities. The Jewish Coalition for Religious Liberty writes that “[b]y limiting eligibility for the tax exemption based on the perceived religiosity of an organization’s activities, the State’s approach will require courts to use their own judgment about what activities qualify. Yet courts make basic errors concerning Judaism, misunderstanding or lacking awareness of even foundational aspects of the faith like Sabbath observance.”
The International Society for Krishna Consciousness echoes this concern, telling the justices that in cases involving Hare Krishnas, determining whether particular conduct is sincerely motivated by religion would require courts to review Hindu religious texts. “Absent an understanding of how these sacred texts have been interpreted by religious adherents and leaders over time, and within the current cultural context, judicial scrutiny of the Hare Krishna’s faith’s religious tenets will inevitably yield an incomplete and misleading picture of what that faith requires.”
Wisconsin counters that the First Amendment does not prohibit all entanglements with religion, but only “excessive” ones – which normally involve “official and continuing surveillance” of religious organizations. But to determine whether a group like Catholic Charities is entitled to an exemption, the state explains, Wisconsin merely engages in a “one-time examination” of the group’s activities so that the exemption serves “its disentangling purpose: keeping the state out of employment disputes that turn on distinctively religious conduct.”
Religiously affiliated organizations only qualify for the exemption if they are “operated primarily for a religious purpose,” the state explains, “which covers those that primarily perform distinctively religious functions such as religious education or worship.” The mere fact that a group’s activities are motivated by religion is not enough to create the prospect that the state will become entangled in employment disputes, Wisconsin reasons, and so it “permissibly requires more” – looking in particular at whether a group’s main activities are “distinctively religious.” This does not, the state insists, require courts to look at “what is and is not religious” or what is “typical” of a religion. Catholic Charities misconstrues the Wisconsin Supreme Court’s decision.
Wisconsin emphasizes that the state supreme court did not deny the exemption because Catholic Charities does not engage in proselytization. Indeed, the state stresses, the court indicated that if the group did, it would weigh in favor of its religious status.
Catholic Charities was “ultimately denied the exemption because” it “identified no distinctively religious activities whatsoever, not just a lack of proselytization,” the state tells the justices. And Catholic Charities’ sincere religious beliefs are “beside the point,” because the exemption “does not seek to alleviate burdens on specific religious beliefs or practices,” but instead is intended to “preserve the religious autonomy of organizations likely to present entangling unemployment questions.”
Wisconsin next pushes back against any suggestion that it unconstitutionally discriminates based on religion when it denies Catholic Charities the exemption. Subjecting Catholic Charities “to the unemployment system does not burden their exercise of religious faith, target them as a disfavored religion, or amount to preferential treatment for secular groups over religious ones,” the state maintains. Instead, the state contends, the purpose of the unemployment exemption – “avoiding interference with employment decisions that may turn on faith and doctrine” – is purely secular, and “does not raise concerns about favoring particular religions.”
Finally, the state tells the justices that denying Catholic Charities the unemployment exemption does not violate the principle of church autonomy, because the purpose of the doctrine is to protect religious institutions from government compulsion. The dispute in this case, the state says, merely imposes “minor and incidental incentives” on how the group is structured. Because it is a nonprofit, the state notes, it does not pay a tax but must instead “reimburse the State for benefits (if any) provided to their laid-off employees.” Catholic Charities does not indicate that “this threatens their autonomy.” And the denial of the exemption does not require Catholic Charities to restructure its operations: It has not had the exemption “for decades yet remained separately incorporated,” the state observes.
Wisconsin urges the Supreme Court not to weigh in on whether the Wisconsin Supreme Court correctly interpreted the state’s unemployment law, because Catholic Charities did not ask it to do so, the justices did not agree to take up that question, and the Supreme Court cannot review state court’s interpretation of state laws. But in any event, the state maintains, that court’s interpretation was proper.
A “friend of the court” brief by the group Freedom from Religion
warned that a ruling for Catholic Charities could have widespread implications, allowing other organizations affiliated with religious institutions to invoke the exemptions as well as long as they “can draw a connection between its operation and the religious mission of its parent entity.” “Such connections,” Freedom from Religion contends, “would be trivially easy to make for religiously-affiliated hospital systems” and could lead to the invalidation of “numerous other government regulatory programs that currently protect over 787,000 healthcare workers at Catholic-affiliated hospital systems throughout the nation.”
More broadly, the International Municipal Lawyers Association
, which represents local government lawyers, cautions in its own supporting brief, Catholic Charities’ “approach, if embraced by this Court, would effectively require state and local governments to allow a tax exemption to every organization that claims it is religiously motivated — regardless of the activities it performs — or be found in violation of the First Amendment.”
Faced with possible large-scale revenue losses “if forced to allow religious exemptions for all manner of organizations,” IMLA concludes, state and local governments may instead opt to “eliminate religious exemptions in a variety of contexts.”
Lawyers for alleged members of the Venezuelan gang Tren de Aragua urged the Supreme Court on Tuesday
to leave in place an order by a federal judge in Washington, D.C., that prohibits the federal government from removing them, or anyone else, from the United States under the Alien Enemies Act, an 18th-century law that until now has only been invoked during wartime.
In a 39-page filing, the plaintiffs noted that “it is becoming increasingly clear that many (perhaps most) of the men” who were sent to El Salvador on March 15 “were not actually members of” TdA, “and were instead erroneously listed” as TdA members largely because of their tattoos. The order by U.S. District Judge James Boasberg, the plaintiffs say, “is thus essential to ensure that more individuals who have no affiliation with the gang will not be sent to a notorious foreign prison.”
President Donald Trump issued the executive order at the center of the case on March 15. It targets Tren de Aragua, a large Venezuelan gang that began in that country’s prisons and then expanded into other parts of Latin America. The order directs government officials to quickly remove, without a hearing, noncitizens who are designated as members of TdA.
Trump relied on the Alien Enemies Act, a 1798 law that authorizes the president to detain or deport citizens of an enemy nation without a hearing when Congress has declared war or when an “invasion” has occurred.
Five Venezuelans in immigration custody who believed they could be removed under Trump’s order went to federal court in Washington to challenge Trump’s use of the AEA. Boasberg prohibited the federal government from removing any of the individual plaintiffs for 14 days, as well as anyone else under the AEA. During a hearing, he directed any flights carrying noncitizens that had already taken off to return to the United States, although news reports later indicated that more than 200 noncitizens later landed in El Salvador, where they were taken to a maximum-security prison.
The U.S. Court of Appeals for the District of Columbia Circuit expedited the government’s appeal, and on March 26 it turned down the government’s request to put Boasberg’s order on hold.
The government came to the Supreme Court on March 28, asking the justices to step in. It told the court that Boasberg’s orders “jeopardize sensitive diplomatic negotiations and delicate national-security operations, which were designed to extirpate TdA’s presence in our country before it gains a greater foothold.”
The plaintiffs countered on Tuesday that there is no harm to the government from keeping Boasberg’s orders in place. Indeed, the plaintiffs noted, the government has, using other immigration laws and procedures, continued to remove alleged members of the Tren de Aragua.
But by contrast, the plaintiffs wrote, if Boasberg’s orders are lifted, the plaintiffs “will suffer extraordinary and irreparable harms — being sent out of the United States to a notorious Salvadoran prison, where they will remain incommunicado, potentially for the rest of their lives, without having had any opportunity to contest their designation as gang members.”
The plaintiffs stressed that the government agrees with them that individuals should have an opportunity to challenge their designation as TdA before they can be removed. Instead, they observed, the government simply contends that the plaintiffs were instead required to bring a habeas corpus case – that is, a case to challenge the legality of their detentions – and contests the decision to challenge the president’s use of the Alien Enemies Act in Washington, D.C., rather than in Texas, where the five named plaintiffs are being held. These kinds of questions “are procedural issues more appropriately decided by lower courts in the first instance,” rather than by the Supreme Court in an emergency appeal, the plaintiffs suggested.
Moreover, the plaintiffs continued, because the Trump administration concedes that some court somewhere can review their case, “its dire claims about the TRO amounting to intolerable judicial interference with national security reduce, at best, to technical disputes” about where that court should be, which can be determined by the district court.
And the government is in any event wrong on the merits, the plaintiffs concluded. The Alien Enemies Act does not justify the president’s March 15 order. The AEA was intended to “address ‘military’ hostilities directed at the United States, not criminal activity by a gang during peacetime.”
The plaintiffs are also not required to bring their claims as habeas cases, they insisted. This is particularly true, they say, when it will be a “practical impossibility” for most people subject to the AEA to bring a habeas claim in time to stave off their removals. Among other things, the plaintiffs noted, the government continues to contend that it is not obligated to notify individuals who are covered by the president’s order. “And when asked pointedly in the court of appeals whether it plans to load more individuals onto plans without notice the moment the TRO is dissolved, the government did not hesitate to take that position.” As a result, the plaintiffs said, Boasberg’s order “is the only thing preventing” the Trump administration “from invoking the AEA to send individuals to a prison in El Salvador,” “perhaps never to be seen again, without any kind of procedural protection, much less judicial review.”
The Supreme Court on Wednesday largely upheld the Food and Drug Administration’s denials of two companies’ applications to sell flavored liquids for use in e-cigarettes. In a unanimous ruling, the justices threw out a ruling by the conservative U.S. Court of Appeals for the 5th Circuit holding that the FDA had improperly pulled a “regulatory switcheroo” when it gave the companies instructions that they followed but then ignored those instructions and denied authorization while imposing new requirements. In a 46-page ruling by Justice Samuel Alito, the court sent the case back to the court of appeals so that it could take another look at one aspect of the dispute – specifically, whether it made a difference that the FDA had changed its position and failed to consider marketing plans that the companies had submitted as part of their applications.
E-cigarettes, also known as vapes, are battery-powered devices that heat a liquid, which in turn produce an aerosol that the user inhales. E-cigarettes normally contain nicotine, the addictive ingredient released by the burning of a traditional cigarette, but without some of the other chemicals that are released when tobacco is burned.
A 2009 law, the Family Smoking Prevention and Tobacco Control Act, requires manufacturers to get permission from the FDA before putting a new tobacco product on the market. The law requires the applicant to show, among other things, that marketing the product would be “appropriate for the protection of the public health” – a standard that the FDA applies by considering both the likelihood that people who currently use tobacco products will quit and the possibility that people who do not use tobacco products will start using them.
In 2021, the FDA denied applications from Triton Distribution and Vapetasia to sell flavored liquids with names like “Rainbow Road,” “Crème Brulee,” and “Jimmy the Juice Peachy Strawberry” for use in e-cigarettes. Young people are more likely to use e-cigarettes when these kinds of flavored liquids are available, the FDA reasoned, and it had not found any evidence that flavored liquids would benefit adult smokers.
The full U.S. Court of Appeals for the 5th Circuit set aside the FDA’s denial of the two companies’ applications. The companies had followed specific instructions that the FDA had provided, the court of appeals reasoned, but then the FDA ignored those instructions and instead imposed – without acknowledging it – new requirements.
On Wednesday, the Supreme Court unanimously rejected the 5th Circuit’s ruling. Alito explained that under the federal law governing administrative agencies, courts reviewing an agency’s actions can only set them aside if they are arbitrary and capricious – that is, if they lack a rational basis or are unreasonable. Courts, Alito stressed, “must exercise appropriate deference” in such cases and cannot “substitute their own judgment for that of the agency.”
At its core, Alito continued, the companies’ argument boils down to the idea that the “FDA told them in guidance documents that it would do one thing and then turned around and did something different when it reviewed their applications.” But federal administrative law, Alito emphasized, allows agencies to change their positions as long as they “provide a reasoned explanation for the change, display awareness that they are changing position, and consider serious reliance interests.”
Alito acknowledged that in the lead-up to its consideration of the companies’ applications to market their products, the FDA issued “voluminous and discursive documents” that “paint a picture of an agency that was feeling its way toward a final stance and was unable or unwilling to say in clear and specific terms precisely what” the companies “would have to provide.” But for three of the issues about which the companies complain – the FDA’s alleged failure to provide clear notice about the kind of scientific evidence that they would have to provide, the FDA’s requirement that manufacturers compare the health effects of their non-tobacco-flavored products with those of tobacco-flavored products, and the FDA’s alleged shift in enforcement priorities away from cartridge-based products to include other kinds of e-cigarettes – the justices concluded that the FDA’s orders denying the companies’ applications were “sufficiently consistent” with the guidance that it had provided that it had not violated federal administrative law.
The FDA did not challenge the holding by the court of appeals that it had changed its position on the significance of submitting marketing plans that outlined a manufacturer’s proposals and restrictions to keep e-cigarettes out of the hands of young people. The FDA had told manufacturers that the submission of such plans would be “critical” but then did not consider them, the companies complained.
The FDA argued in the Supreme Court that its failure to consider the marketing plans would not have made a difference for these companies, because it had later denied applications by other manufacturers with very similar marketing plans that it had reviewed. The justices sent the case back to the court of appeals for it to take another look and determine whether the case should return to the FDA or instead whether it should consider the argument itself.
Justice Sonia Sotomayor wrote a brief concurring opinion to “clarify” that, in her view, the FDA was not necessarily “feeling its way toward a final stance,” as Alito suggested. “Instead,” she said, “the record shows the agency reasonably gave manufacturers some flexibility as to the forms of evidence that would suffice for premarket approval of their products, while hewing to (and never suggesting it would stray from) its statutory duty to approve only those products that would be ‘appropriate for the protection of the public health.’”
