Books and Coffee

The Supreme Court’s decision in McGirt v. Oklahoma is 86 pages of WOW, I didn’t have honoring our original treaties with the Muskogee/Creek on my 2020 Bingo Card!!

OPINION by GORSUCH: a, 1832 Treaty guaranteed land to the Creek, and promised that no US State or Territory would ever pass laws that would apply to the Creek people on that land. “[W]e hold the government to its word.” McGirt was convicted in Oklahoma State Court; he claims the state has no authority under the Federal Major Crimes act, which makes certain crimes committed by “Indians” on “Indian land” exclusively federal. Oklahoma claims that the land no longer belongs to the Creeks. OK state courts and the Tenth Circuit came to conflicting conclusions, so here we are.

States can’t change reservations (those are between the Tribes and the Feds). Allotment tried to break up the holdings, but the language permits private land within reservations, the Creek Reservation was never lawfully terminated, and Congress has explained that allotments don’t dissolve reservations anyway. (Likewise, land patents to homesteaders elsewhere didn’t dissolve the US’ sovereignty.) Congress may have hoped to dissolve the reservations by allotment, but didn’t get there.

OK points to other interference in the Tribe’s affairs, but those don’t change the law. OK notes that some of the region “has lost its Indian character,” but that doesn’t change the law. OK suggests that its disregard for federal law and habit of pulling the Creek into state courts proves something, but no. “Things only get worse from there.” Collected commentary from Tribal individuals and others does not change the law. The arrival of many white settlers (actually used by OK as evidence?) DOES NOT CHANGE THE LAW. OK’s efforts to get more of the Creek land through sketchy means once oil was discovered there… you know where this is going right? – STILL DOES NOT CHANGE THE LAW. “That would be the rule of the strong, not the rule of law.”

OK then suggests the reservation doesn’t exist, that Congress never made it, and I’m not even going to bother summarizing that – it’s too cray. Also, OK is trying to distinguish between a reservation and a “dependent Indian community” in a way that doesn’t help it legally, because OK lacks jurisdiction in both types of classifications. And then there is an argument that the treaty gave the Tribe fee title to the land, which they are pretending is bad. The Court isn’t having it, and hasn’t since 1900 or so.

OK then tries to argue that the merger of Oklahoma Territory and Indian Territory means that it is special and different from other states, but law on the books in 1885 says otherwise. So they tried the Enabling Act for OK statehood, but even that had federal court exceptions. (Why are they trying this on legal scholars?) OK took Creek people to state court anyway, but (say it with me) THAT DOES NOT CHANGE THE LAWS.

OK says that finding the Creek Reservations still exists would be complex, because it would mean up to half of OK still belongs to the Creek. To which the Court says, “And?”

(It’s hard to fairly summarize the dissent, because it feels too much like ‘possession is 9/10ths of the law.” I’m serious. Especially since it emphasizes intent, and says that you should respect the intended destruction of a tribe as law, even if that destruction was never completed explicitly, and even though Congress did things to RESTORE the Tribe’s sovereignty, too. It’s… weird.

It also comes so closely on the heels of the Bostick case (on transgender rights, among other things), where the conservatives insisted that you go back to the oldest law you can find and take it at its word UNTIL IT IS CHANGED EXPLICITLY: when their preferred approach was applied here, the conservatives suddenly switched standards. )

DISSENT by ROBERTS (with ALITO, KAVANAUGH, and THOMAS except for part): but! but! but! WHO COULD HAVE KNOWN that the laws are still on the books! How can the State do STATE THINGS if federal laws still apply! This is DESTABILIZING! And there was the Civil War! And there were SO MANY SETTLERS. And we will refer to reports about Congress’ intentions selectively. The population of Creek has been outnumbered. (WE WILL NOT USE MANY CITATIONS FOR THIS PART OF THE DISSENT!)

Intent, intent, intent, intent, intent. Everyone knew where this was going. Why did Congress have to be explicit? Laws were passed taking things away from the Creek; even if new laws were passed giving them those things back, that just proves that they were previously taken away (and what was our point again?). Any references to “former” lands mean ALL THE LANDS (notwithstanding all the transfers and changes of borders, which somehow couldn’t possibly be in this discussion?)(?!). If anyone among the Creek referred to the land as something other a reservation, that also means the treaty (which still exists legally) is gone because of the intent to dissolve everything through constant micro- and macro-aggressions. (p 46 – 82)

DISSENT by THOMAS: This Court lacks jurisdiction because of State law. Oklahoma deserves more respect. (p. 83 – 86).

‘If the state does you wrong for long enough, federal law doesn’t apply’ is kind of wild as an argument. I get the, ‘facts on the ground look bad,’ I get the complexity of forming new states and repeatedly dividing up jurisdictions between the feds and the states, but in nearly any other situation, the remedy for the state mistreating people because it was closer and the feds were far away would be a federal intervention. I mean, states the American South failed to guarantee lots of federal laws, and the Feds sometimes stepped in, which was the right thing to do. So. Gosh.

Oh, I saved this to publish before/after my hobbyist summary of Department of Homeland Security v. Regents of the University of California! These law geeks do this so well.

Rapid Reaction – Supreme Court Protects DREAMers – Rewire.News

DACA recipients and their supporters rally outside the Supreme Court, which denied the Trump administration’s attempt to end the Deferred Action for Childhood Arrivals program. Drew Angerer/Getty Images For the second time in a week, the Supreme Court came down on the side of justice!

Is it wrong for me to be happy this is only 74 pdf pages long? Department of Homeland Security v. Regents of the University of California came out on June 18th, and I’ve been so swamped with Supreme Court news – and general surprise – that I haven’t done my new-tradition of reading and annotating as I go.

This one is tricky for me, because the Administrative Procedures Act is its own WORLD. I try not to know too much about this. But it can’t be helped, really.

Okay, the main summary is this:

That’s the most important point: the Deferred Actions for Childhood Arrivals program can be shut down; it just has to be done so according to LAWS AND RULES AND ADMINISTRATIVE PROCEDURES.

The Court says the government canceled DACA in an “arbitrary and capricious” manner.

OPINION BY ROBERTS: the government characterizes the DACA program as a discretionary agency decision not to institute deportation proceedings, which can’t be reviewed under current law. The Court disagrees, saying it the program’s scope far exceeds that AND includes benefits which are normal for the Court to review. The same goes for the gov’t INA claims, which are also about removals: DACA isn’t just about removals, so no dice. (pages of the court website PDF p 6- 18)

The government’s original explanation for why it wanted to rescind the policy is the natural one under administrative law, and [the Court gives a rousing defensive of administrative procedure so the public has a right to know and can comment.] The follow-on retro-justifications are irrelevant. (p18 – 22)

The AG said one part of the law was potentially illegal, and tried to throw it all out, forgetting the State Farm case (my summary: don’t throw the baby out with the bathwater), which said that an agency can’t use one problem justify dumping many discrete activities in a program, especially if there is legitimate reliance upon them. (through p. 34)

CONCURRENCE/CONCURRENCE/DISSENT by SOTOMAYOR: The Court ruled out Equal Protection Clause challenges, but the respondents should develop those. There IS plausible animus! Especially from Trump, and specifically in this context! (p. 35 – 38)

CONCURRENCE/DISSENT by THOMAS with ALITO AND GORSUCH: This whole policy exists because one president issued a memo; it was rescinded the same way; fair’s fair. Also, if the AG says it is illegal, we shouldn’t even be talking about it. Illegal memos should not burden subsequent administrations. (p. 39 – 64)

CONCURRENCE/DISSENT by ALITO: DACA is illegal; if its creation was legal, its cancellation through a similar process was lawful discretion and so is unreviewable anway. And it’s NOT arbitrary and capricious. (p. 65 – 66)

CONCURRENCE/DISSENT by KAVANAUGH: The agency’s second try at justifying rescinding DACA is fine. The fact that it came later was only supposed to disqualify it if it was in litigation (which this doesn’t count as?) by lawyers (ah), rather than by agency decision makers. The program inappropriately addresses problems that should have been solved by the legislature; but at least the rejection of the Equal Protection Act claim is OK. (p67 – 74)

So the DREAMers aren’t safe, but have some more time while this goes back through more courts. But that’s all it really is – a bit more time. Because of that main first point – live by the memo, die by the memo (plus administrative procedures – this case provides an unsettled feeling.

I’ve had friends tell me it took a ton of money and more than a decade for them to be allowed to be citizens, even with one American parent; we could do better by people who want to be here.

I got through all 138 pages of this! JUNE MEDICAL SERVICES L. L. C. ET AL. v. RUSSO, INTERIM SECRETARY, LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS (supremecourt.gov/opinions)

Yes, I was that person who would post great quotes from Supreme Court decisions on my door at work when I worked at a law firm. Yes, especially if you have to write a lot of briefs, these decisions are INTERESTING to read.

This decision was an unexpectedly positive result for people who want women to have reproductive choice rather than forced births due to restrictions that do not improve healthcare, while pretending to be for women’s protection. This case was about whether the Court will follow other recent precedent for a NEARLY IDENTICAL law that was already deemed unconstitutional, what the role of the Supreme Court is and what matters were before it, who has standing to litigate abortion rights, and what happens next.

My notes from reading:

OPINION BY BREYER: this is just like Whole Women’s Health v. Hellerstedt, and so it’s unconstitutional. Undue burdens galore. Also, there were no errors by the District Courts on the facts, so we shouldn’t dwell on those, even though they’re really good here in showing that the admitting privilege law doesn’t benefit pregnant people. (pages 1 – 45 of the PDF of the decisions linked to above)

CONCURRENCE BY ROBERTS: I didn’t agree with Whole Women’s, but it is a precedent, this law is nearly identical, and so we must follow Whole Women’s. Substantial obstacles are unconstitutional. However, here is a master class on all the abortion restrictions that were good, and cases should really be more like those. (pages 46 – 61)

DISSENT BY THOMAS: These plaintiffs don’t have standing. (Footnote, we should be this nice about standing for guns. Waiting for Godot joke here.) “Our abortion precedents are grievously wrong and should be overruled.” Things have been bad throughout the 20th century, and we should really consider what people intended in the 1860s – these are not part of the “inheritance from our forefathers.” (Not a typo! 1860s!) (pages 62 – 81)

DISSENT BY ALITO: But the law PROTECTS women! No, really! Notwithstanding all of the District Court’s finding of facts to the contrary, they do! Also, no one proved that a law that was bad for one state is bad for another. And these doctors did not try hard enough, notwithstanding all of the findings of fact of the obstacles they encountered while the District Court watched, including documented hospital policies explicitly saying they can’t have admitting privilege if they do the only they do for a living. Also, they have no standing, because they don’t have a close relationship with their patients. (pages 82-115 and all agonizing to read)

DISSENT BY GORSUCH: The law protects women, notwithstanding the findings of fact, and we should defer to the legislature. Also: no standing (no close relationship). Also, we focus too much on people (a “substantial number” or “large fraction”) who are unreasonably burdened, when some women won’t be! And maybe everything will change, and maybe the hospitals will spontaneously develop new policies, and maybe there will be new clinics popping up just because – what about that speculative possibility? Doesn’t the market fix everything? (pages 116 – 136)

DISSENT BY KAVANAUGH: We need more facts before we can decide on this law. I have doubts about those admission privilege efforts the doctors made. (pages 137 – 138)

I have some favorite parts of Breyer’s opinion.

Here is the Rewire News half-hour reaction podcast, which I love for the combination of legal nerdery plus celebratory profanity:

Rapid Reaction – A Great Decision (Plus a Roberts Time Bomb) on Abortion Access – Rewire.News

A crowd rallies outside the Supreme Court during the arguments for June Medical Services v. Russo. Photo by Eric Kruszewski U.S. Supreme Court Justice Stephen Breyer has done it again! BREAKING NEWS: Supreme Court just confirmed what we all knew: Louisiana’s anti-abortion law is UNCONSTITUTIONAL.