The Trumpy cases, once again, fall to me! But that’s not until the end of the week. Let's start with Monday.
Monday will be only slightly less controversial as the Court takes up City of Grants Pass v. Johnson, involving the ability of cities to respond to the rising homelessness crisis by banning camping in public.
The case stems from a previous decision by the Ninth Circuit a few years back called Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019). There, the Ninth Circuit interpreted the Cruel and Unusual Punishments Clause of the Eighth Amendment as preventing cities from criminalizing camping in public if the city has a shortage of beds depriving the campers of "access to adequate temporary shelter." The Ninth Circuit reasoned that if there aren’t enough beds, then the person is being forced to camp involuntarily---even if they’ve taken actions that have made them unable to get shelter and even if they've made no effort to get out of their situation.
It’s true, of course, that there are several laws in place that keep people in systematic poverty and the government could do a ton to help people out of poverty if it would just get out of their way and make it easier to hire, to build, to earn, to keep the fruits of one's labor, and to buy or sell property. So yes, the government plays a role in exacerbating the homelessness crisis. But it's also true that categorically saying that all people who are public camping are in that situation "involuntarily" erases their agency---especially given that many are, in fact, competent and have been in the same situation for decades.
Putting aside whether that’s what “involuntary” means, the Ninth Circuit has certainly stretched the meaning of the Eighth Amendment. As you can listen to here (courtesy of a fantastic episode of the hit podcast Dissed), the Cruel and Unusual Punishment Clause doesn’t prohibit government from doing whatever some judge at the time finds subjectively brutal or strange. Rather, it was meant to prohibit punishments that were disproportionate in relation to the crime or that have fallen out of use over time.
In Grants Pass, the Ninth Circuit extended Martin even further and said cities cannot even enforce a camping ordinance through civil citations.
The case has garned a wide array of amicus briefs, including the ACLU, Southern Poverty Law Center, the Becket Fund, Elizabeth's employer the Pacific Legal Foundation, the City of Los Angeles, California Governor Gavin Newsom, and the Sacramento DA. Perhaps surpsingly, the latter three filed to emphasize the problems that have unfolded as cities struggle to apply Martin in the face of rising homeless, as well as the growing threats to public health and safety.
The debate over bans is important, but one does wonder when we'll start talking about the root of homelessness: things like restrictive housing policies that suppress supply, laws that keep people out of a job, and regulations that make it harder for people to access healthcare of all kinds.
After that argument, the Court will switch to a decidedly less controversial issue: Whether Section 3 of the Federal Arbitration Act requires district courts to stay a lawsuit pending arbitration, or whether district courts have discretion to dismiss when all claims are subject to arbitration.
On Tuesday, in Department of State v. Muñoz, the Court willl consider "whether a consular officer's refusal of a visa to a U.S. citizen's noncitizen spouse impinges upon a constitutionally protected interest of the citizen" and "whether, assuming that such a constitutional interest exists, notifying a visa applicant that he was deemed inadmissible... suffices to provide any process that is due."
The case stems out of the marriage of Salvadoran citizen Luis Asencio-Cordero and U.S. citizen Sandra Muñoz. Asencio-Cordero entered the country in 2005 and the couple married in 2010. Once married, Muñoz filed a petition to allow Asencio-Cordero to become a lawful permanent resident. In the meanwhile, Asencio-Cordero also filed an application (as required) for a provisional waiver of his unlawful presence. After extensive correspondence with U.S. officials, the last step was for Asencio-Cordero to interview at the U.S. Consulate in El Salvador. There, the consular officer deemed him inadmissible based on the belief that Asencio-Cordero sought to enter the U.S. "to engage solely, principally, or incidentally in…unlawful activity.” Several years later, after Asencio-Cordero filed a lawsuit, it came out that the consular officer had made that decision based solely on Asencio-Cordero's tattoos, which the officer (incorrectly) suspected denoted gang affiliation.
Noncitizens have virtually no ability to challenge such decisions, so Muñoz filed a lawsuit arguing that the officer's decision affected her rights. Now the Court will determine whether the Ninth Circuit was correct to let her sue.
Keeping with the pattern from Monday, the Court will then turn to a rather less sensational case, Starbucks v. McKinney, which asks whether the National Labor Relations Board’s requests for injunctions under the National Labor Relations Act is applicable to the same four-factor test as all other preliminary injunctions or some other more lenient standard. (As I always say, what’s good for the goose is good for the National Labor Relations Board!).
On Wednesday, the Court will consider whether the Emergency Medical Treatment And Labor Act (known better as EMTALA) preempts state laws curbing the ability to get an abortion. EMTALA requires hospitals that receive Medicare funding to provide emergency treatment, including emergency stabilizing treatment to pregnant women. After the Court’s decision last term in Dobbs, Idaho passed a law prohibiting abortions unless necessary to save the life of the mother. A district court judge subsequently ruled that the law was preempted to the extent that it conflicts with EMTALA.
The state argues that the DOJ’s argument is a mere power grab that widely interprets EMTALA in order to curb a state law it doesn’t like. DOJ argues that EMTALA requires hospitals to provide any treatment necessary to stabilize the patient without regard to whether that treatment is permitted under state law, and it is merely pressing a straightforward interpretation of the statute.
After the Fifth Circuit ruled in a similar case that EMTALA does not preempt Texas’s abortion restrictions, thus creating a circuit split, the Court granted a stay in the Idaho case and agreed to hear oral argument.
The Court will round out the week by deciding just how immune former presidents are from criminal prosecution. President Trump argues that they are bigly immune. In fact, he argues that former presidents are so immune that they could assassinate political rivals and not face prosecution for it.
You may recall that Trump is currently being criminally prosecuted for his actions on January 6th. Trump unsuccessfully argued at the D.C. Circuit that he was immune for all official acts when he was president and instead that former presidents can only be prosecuted after they are first impeached. We'll see if this argument fares better at the Supreme Court, where the justices are keener on immunity of all kinds, as well as deference to the Executive.
I'll be back later this week for a full recap! Four very full days of SCOTUS arguments. It's like Christmas come early.