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Supreme Court Previews
The previews are contributed by the Legal Information Institute, a nonprofit activity of Cornell Law School. The previews include an in-depth look at several cases plus executive summaries of other cases before the Supreme Court. The executive summaries include a link to the full text of the preview.
Biden v. Missouri (No. 21A240)
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Oral argument: Jan. 7, 2022
Question as Framed for the Court by the Parties
Whether the Supreme Court should issue a stay of the injunction issued by the United States District Court for the Eastern District of Missouri blocking a federal rule that requires all health care workers at facilities that participate in Medicare and Medicaid programs to be fully vaccinated against COVID-19 unless they are eligible for a medical or religious exemption.
Facts
On Nov. 5, 2021, the Centers for Medicare and Medicaid Services’ (CMS), an agency within the Department of Health and Human Services (HHS), promulgated 86 Fed. Reg. 61,555, an Interim Final Rule with Comment Period (IFC) titled “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination.” The mandate requires almost all staff who work or volunteer at Medicare- and Medicaid-certified healthcare facilities to be fully vaccinated against COVID-19. On Nov. 10, 2021, the States of Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming (collectively Missouri) challenged the mandate in the United States District Court for the Eastern District of Missouri. Missouri requested that the district court issue a preliminary injunction that would temporarily block CMS from enforcing the vaccine mandate.
Before considering Missouri’s request for an injunction, the district court first noted that it had jurisdiction over the claims, rejecting the Biden administration’s argument that the Medicare Act, 42 U.S.C. § 1395ii, bars the court from hearing the matter. Next, in deciding whether to grant the preliminary injunction, the district court applied Dataphase Sys., Inc. v. C L Sys., Inc.’s four-factor balancing test. The test weighs the moving party’s likelihood of success on the merits, the threat of irreparable harm to the moving party absent an injunction, the overall balance of equities and hardships, and whether the public interest supports an injunction.
The district court first assessed the States’ likelihood of success on the merits of their argument that CMS exceeded its authority in enacting the mandate. The court noted that because the mandate will have a wide-ranging impact and raises significant federalism concerns, an express grant of authority from Congress is required. Congress did not provide such authority and the court held that it would not infer Congressional intent. Moreover, the court indicated that Missouri would likely succeed on the merits because CMS did not abide by notice and comment requirements, CMS did not have “good cause” to bypass the requirements, and the mandate is arbitrary and capricious.
Next, the district court found that Missouri would suffer irreparable harm absent an injunction. The court indicated that enforcement of the mandate would hinder Missouri’s ability to enforce their own laws. The court also pointed to potential harm that those receiving care in affected facilities would suffer because of the loss of unvaccinated staff. Lastly, the court merged consideration of the balance of equities factor with the public interest factor, finding that although the public has an interest in reducing the transmission of COVID-19, maintaining the status quo pending final resolution of the case is in the public interest. Upon weighing the four factors, the district court granted the preliminary injunction. The Biden administration appealed the district court’s decision to the United States Court of Appeals for the Eighth Circuit.
Pending consideration and disposition of the appeal in the Eighth Circuit, the Biden administration requested that the United States Supreme Court issue a stay of the injunction, allowing CMS to continue to enforce the mandate. On Dec. 22, 2021, the Supreme Court decided to hear oral argument on the question of whether to issue the stay. This case is consolidated with Becerra v. Louisiana, in which the United States District Court for the Western District of Louisiana similarly enjoined enforcement of the mandate.
Legal Analysis
STATUTORY AUTHORIZATION THROUGH MEDICAID
The Biden administration contends that a stay of the injunction is proper because the administration is statutorily authorized to issue the mandate. Specifically, the Biden administration argues that HHS possesses the statutory authority to require facilities that participate in the Medicare or Medicaid programs to comply with restrictions that protect patient health and safety. The Biden administration asserts that the text of the Medicare Act, 42 U.S.C. § 1302(a), unambiguously vests authority in the secretary of HHS to make rules that “may be necessary and efficient” to the administration of the Medicare and Medicaid programs. The Biden administration points to several provisions of the Medicare Act that recognize the HHS secretary’s broad power to set standards that ensure patient health and safety. The Biden administration contends that the vaccine mandate is analogous to these provisions and similarly necessary to protecting patient health and safety. The Biden administration also posits that science and common sense support the conclusion that requiring healthcare staff to be vaccinated protects patients by reducing the likelihood of patient COVID-19 infection and provid-
ing greater assurance to patients that they are less likely to be exposed to the virus. Moreover, the Biden administration claims that vaccination requirements are consistent with both the history of the Medicare Act and public-health measures generally. Accordingly, the Biden administration argues that Congress did in fact authorize the mandate and that the district court erred in finding otherwise.
Missouri and nine other states (collectively Missouri) counter that a stay is improper because the mandate unequivocally lacks statutory authorization. Missouri notes that the Biden administration impermissibly applies an expansive reading to § 1302(a), which Missouri argues only recognizes a general responsibility of the HHS secretary to maintain the Medicare and Medicaid programs. Missouri claims that the authority recognized in § 1302(a) only permits the secretary of HHS to promulgate practical rules such as billing procedures and cannot support a far-reaching and consequential vaccine mandate. Missouri claims that because of the vaccine mandate’s broad and serious implications, Congress needed to provide CMS with an express grant of authorization and that no such grant exists here. Missouri points to several Supreme Court precedents for the proposition that agency decisions with significant economic and political ramifications must be made consistent with a clear showing that Congress has ordered the action. Missouri asserts that the mandate will affect over two million healthcare staff, will reduce healthcare access for almost all Americans, places billions of dollars of federal funding at risk if facilities do not comply, and endangers the states’ own police power. Accordingly, Missouri contends that the decision to require such widespread vaccination cannot be imposed and enforced without exceedingly clear Congressional authorization. Furthermore, Missouri posits that even if Congress had authorized the mandate, the mandate is nonetheless unconstitutional under both the Spending Clause and the Non-Delegation Doctrine.
THE ARBITRARY AND CAPRICIOUS STANDARD
The Biden administration asserts that a stay should issue because the mandate is not arbitrary and capricious but rather is supported by extensive evidence of the efficacy of the vaccination requirement. The Biden administration argues that the district court erred when it determined that the secretary of HHS failed to consider the effects of staff shortages brought on by the mandate. The Biden administration contends that the HHS secretary did assess the possibility that some healthcare staff would quit instead of receiving the vaccine but concluded that this concern was not enough to outweigh the benefits of the nationwide vaccine mandate. For instance, the Biden administration notes that only 0.6% of the staff at the Houston Methodist Hospital system chose to resign when a vaccine mandate was imposed there. Additionally, the Biden administration posits that countervailing factors, such as reduced staff absenteeism resulting from COVID-19 infections, would yield a substantial benefit to healthcare facilities. Moreover, the Biden administration indicates that the vaccine mandate enjoys widespread support from leading healthcare associations. The Biden administration also asserts that the secretary of HHS considered alternatives to a vaccination requirement, such as repeated testing, and determined that those alternatives would not adequately protect patients.
Missouri counters that the mandate is arbitrary and capricious because the evidence overwhelmingly counsels against imposing a nationwide vaccine mandate. Missouri notes that the mandate disregards both patient well-being and access to care. Specifically, Missouri argues that the Biden administration downplays the significant staff shortages that will result from mandating the COVID-19 vaccine, and that these shortages will only exacerbate the healthcare crisis that the nation already confronts. Missouri contends that fewer healthcare workers necessarily means that patient care will suffer. Moreover, Missouri posits that the Biden administration ignores the particularly detrimental impact that the mandate will have on rural hospitals, which flouts the protections that the Medicare Act provides for rural populations in § 1302(b). Furthermore, Missouri asserts that the Biden administration does not provide any evidence that alternatives to a vaccine mandate cannot effectively guarantee both patient well-being and ensure access to care. For instance, Missouri contends that a testing requirement would prevent the staff shortages that a vaccine mandate would generate.
Discussion
PROTECTION OF HEALTHCARE STAFF
The Service Employees International Union and two other unions (collectively the Unions), in support of the Biden administration, argue that the vaccine mandate protects not only patients, but also healthcare staff. Specifically, the Unions argue that healthcare workers are at significant risk of exposure to the virus and that the death rate among healthcare staff during the first year of the pandemic supports this conclusion. The Unions assert that stricter vaccination policies aimed at protecting workers can significantly mitigate the risks that they face, as recent healthcare facility outbreaks are often linked to under-vaccination among staff. The American Medical Association and several other medical associations and academies (collectively the AMA), also in support of the Biden administration, contend that COVID-19 vaccines are both a safe and effective way to reduce the alarming rate of transmission of COVID-19 in healthcare facilities. The AMA posits that reputable studies and analyses reinforce the Biden administration’s contention that the vaccine is the most effective method of saving lives.
The Doctors for Disaster Preparedness and Eagle Forum Education & Legal Defense Fund (the Doctors and Eagle Forum Fund), in support of Missouri, counter that the COVID-19 vaccine mandate does not effectively protect workers because of the questionable nature of the vaccine’s efficacy. The Doctors and Eagle Forum Fund maintain that the COVID-19 vaccine itself has led to thousands of adverse reactions, hospitalizations, and deaths. The Doctors and Eagle Forum Fund argue that the Biden administration fails to consider the harms that the COVID-19 vaccine poses and ignores the data showing that even though most healthcare workers are already vaccinated, COVID cases continue to surge. The Doctors and Eagle Forum Fund posit that natural immunity and early treatment through medications such as hydroxychloroquine and ivermectin are more effective means of protecting healthcare staff than requiring them to receive the COVID-19 vaccine.
EFFECT ON HEALTHCARE FACILITIES
Former secretaries of HHS, former administrators of CMS, and other former federal health officials (collectively the secretaries, administrators, and officials), in support of the Biden administration, argue that the vaccine mandate benefits healthcare facilities through reduced COVID-19 hospitalizations and fewer staff shortages. The secretaries, administrators, and officials contend that
healthcare facilities, already stretched thin, cannot afford to lose available staff who become infected with COVID-19 and must quarantine. The secretaries, administrators, and officials assert that healthcare facilities exist to care for patients and that this care suffers immensely when staff shortages are abundant. Additionally, the secretaries, administrators, and officials maintain that patients may be more likely to seek care at facilities that impose a staff-vaccination requirement.
Baptist Homes & Healthcare Ministries (BHHM) and the Christian Life Commission of the Missouri Baptist Convention (CLC MBC), in support of Missouri, counter that the vaccine mandate will result in healthcare facilities suffering economic and constitutional harm. BHHM and CLC MBC note that many healthcare workers, especially nursing home staff, are unlikely to receive the vaccine and will choose to quit, placing the economic viability of the facility at risk. BHHM and CLC MBC also posit that healthcare facilities that fail to comply with the mandate risk losing significant Medicare and Medicaid funding. Moreover, BHHM and CLC MBC contend that the vaccine mandate poses constitutional harms to religiously affiliated healthcare providers. Specifically, BHHM and CLC MBC argue that the mandate violates the First Amendment because it infringes on the autonomy that religious institutions enjoy.
Full text available at https://www.law. cornell.edu/supct/cert/no._21a240.
Written by Moataz Abdelrasoul. Edited by Stewart Rickert.
Federal Election Commission v. Ted Cruz for Senate (No. 21–12)
Oral argument: Jan. 19, 2022
Question as Framed for the Court by the Parties
Whether appellees have standing to challenge the statutory loan-repayment limit; and whether the loan-repayment limit violates the Free Speech Clause of the First Amendment.
Facts
In order to guard against actual and apparent quid pro quo corruption, Congress promulgated federal campaign financing restrictions through the Federal Election Campaign Act of 1971 (FECA). Approximately thirty years later, Congress amended FECA in the Bipartisan Campaign Reform Act of 2002 (BCRA), which set forth in Section 30116(j) that a “candidate who incurs personal loans . . . in connection with the candidate’s campaign for election shall not repay (directly or indirectly), to the extent such loans exceed $250,000, such loans from any contributions made to such candidate or any authorized committee of such candidate after the date of such election.”
Under BCRA and its implementing regulations, which are administered by the Federal Election Commission (FEC), after an election, a campaign may either fully reimburse a candidate within 20 days of the election using pre-election contributions, or it may use contributions made after election day to repay up to $250,000 of the candidate’s loans. If the campaign does not repay the loan with pre-election funds within the 20 days, any remaining balance exceeding $250,000 is re-designated as a campaign contribution from the candidate.
Senator Rafael Edward (Ted) Cruz (Senator Cruz) ran for re-election in 2018. On the day before the 2018 general election, Senator Cruz loaned his election committee, Ted Cruz for Senate (the Committee), $260,000. The Committee did not repay Senator Cruz within the 20-day deadline set by the FEC’s regulations. After the 20-day period passed, the Committee repaid $250,000 to Senator Cruz and the outstanding $10,000 was recharacterized as a contribution from Senator Cruz to his campaign. Senator Cruz and the Committee then sued the FEC in the United States District Court for the District of Columbia under BCRA Section 403(a) which provides for jurisdiction in the District Court for the District of Columbia for any constitutional challenges to BCRA. There, Senator Cruz and the Committee alleged that BCRA’s loan-repayment limit violates the First Amendment and sought declaratory and injunctive relief invalidating and enjoining the enforcement of Section 304.
The district court concluded that Senator Cruz had standing to sue because he had suffered a “$10,000 financial injury” due to BCRA’s loan-repayment limit. The court granted Senator Cruz’s motion for summary judgment, denied the FEC’s motion for summary judgment, and held that BCRA’s $250,000 loan-repayment limit violates the First Amendment by burdening the exercise of political speech. The court applied heightened scrutiny, and concluded that the government had not adequately justified the provision’s burden on candidate speech. The court found that the FEC failed to show that use of post-election contributions to repay candidate loans posed a risk of corruption. Therefore, the limit was not sufficiently tailored.
The FEC appealed to the Supreme Court and filed a jurisdictional statement challenging the ability of the Court to hear the case on the grounds that the district court had erred in holding that Senator Cruz and the Committee had standing. Under BCRA Section 403(a)(3), a final decision of the three-judge panel as to the constitutionality of challenged sections of the BCRA is only reviewable on appeal directly to the Supreme Court. The Supreme Court granted certiorari, postponing its consideration of the jurisdictional standing question to its hearing of the case on the merits.
Legal Analysis
The FEC argues that Senator Cruz does not have Article III standing to bring this suit. Under Article III, a party must satisfy three requirements to have standing to sue: (1) he has suffered an injury in fact that is concrete, particularized, and actual or imminent; (2) the injury is fairly traceable to the defendant’s challenged action; and (3) the judicial relief he seeks would likely redress the injury. The FEC concedes that Senator Cruz suffered a concrete injury—the unpaid $10,000 balance on a $260,000 loan—but disputes that Section 304 was the cause. The FEC reasons that the Committee voluntarily and without justification missed the 20-day window to repay Senator Cruz’s loan, and is therefore responsible for Senator Cruz’s injury. Since the injury is self-inflicted and not fairly traceable to any unlawful conduct by the FEC, the FEC contends that Senator Cruz fails the causation requirement for standing.
The FEC notes that Senator Cruz also fails the causation requirement because his injury does not stem directly from Section 304, but rather from a regulation promulgated to implement it. The FEC explains that since the $250,000 limit only applies to post-election funds, and Senator Cruz used pre-election funds to recoup $250,000 of his $260,000 loan, the Committee could
have satisfied the remaining $10,000 using post-election funds without ever implicating Section 304’s cap. Senator Cruz’s injury stems not from Section 304, therefore, the FEC contends, but rather from the Committee’s non-compliance with the regulation; once the 20 days passed, the regulation redesignated the $10,000 loan as a contribution, which rendered it ineligible for reimbursement, regardless of whether pre- or post-election funds were used. Failure to meet the deadline, according to the FEC, constitutes an injury that is “so completely due to the plaintiff’s own fault as to break the causal chain” required for standing.
The FEC concedes that an intentional delay can be excusable in the rare circumstance when a party is compelled to self-inflict injury to avoid a greater harm. Here, however, the FEC contends that the Committee has not shown that it would have suffered any concrete harm from disbursing the $10,000 within the 20-day window. The FEC concludes, therefore, that since Senator Cruz cannot attribute his self-inflicted injury to Section 304, invalidating that statutory provision would not offer him redress.
Senator Cruz counters that his injury is directly traceable to Section 304. Senator Cruz agrees that the regulation represents an intermediate link between his injury and Section 304, but maintains that this chain of causation is sufficiently direct for standing purposes. Senator Cruz asserts that parties with far more indirect causation arguments have repeatedly successfully established standing. For example, Senator Cruz points out, litigants injured through government action successfully challenged the appointment process of the agency officials who inflicted those injuries. Here, Senator Cruz asserts that the chain of causation is comparatively direct: since Section 304 is the sole statutory provision that authorizes the 20day regulatory rule, it is plainly the but-for cause of his injury.
Senator Cruz next argues that it is irrelevant that the Committee voluntarily bypassed the regulatory deadline because a party does not forfeit standing by refusing to adhere to the very provision they allege is unlawful. Senator Cruz points out that a party’s standing to bring a post-enforcement challenge should not depend on their ability to prove, pre-enforcement, that they were compelled to choose between alternative harms. Senator Cruz claims that his complaint does not describe a generalized, speculative harm, but rather a concrete injury caused by violation of his constitutional right to have his loan repaid using post-election contributions. Senator Cruz further reasons that the Committee’s non-compliance was justified: they sought to avoid harm to creditors by prioritizing those who more urgently required reimbursement than Senator Cruz. Finally, Senator Cruz contends that the FEC misstates the facts: the Committee did indeed repay $250,000 of Senator Cruz’s loan using post-election funds and was constrained by the cap: they used funds received after the 2018 election but that were designated for use in the 2024 election.
Finally, Senator Cruz asserts that invalidating the statute would also vacate its implementing regulations, therefore redressing his injury and fulfilling the final requirement for standing. Senator Cruz points out that, as established in fundamental principles of administrative law, “the regulatory branch cannot survive the death of the statutory tree.” Senator Cruz concludes that both the authorizing statute and the 20-day regulatory rule are responsible for his injury, and therefore both must fall for his injury to be redressed.
A MODEST OR SEVERE BURDEN ON FREE SPEECH
The FEC argues that the loan-repayment limit places only a modest burden on free speech, which is adequately tailored to serve the government’s compelling anti-corruption interest, and that the limit survives any standard of review. The FEC points out that the First Amendment right to spend money on, and to contribute money to, political campaigns is not absolute: it is subject to a balancing of interests. Here, the FEC reasons that the government’s interest outweighs the modest burden imposed by the limit. The FEC contends that the burden is modest: first, because the regulation imposes a narrow timing requirement, the type of restriction that the Court has often upheld. Secondly, according to the FEC, candidates often make loans without expectation of repayment or in amounts well below $250,000. The FEC reasons that since the majority of loans are unaffected by the cap, and since candidate lending practices remained stable subsequent to the promulgation of the BCRA, fears of deterrence are likely exaggerated.
The FEC asserts that the government’s interest in preventing corruption is compelling because contributors are more likely to have improper motivations post-election: special interests may make donations to avoid retaliation from a prevailing candidate or to incentivize that candidate to vote in their favor. The FEC observes that a candidate is also more likely to change their votes to align with special interests when they stand to increase their personal wealth. Therefore, the FEC concludes that a post-election contribution can be dangerously akin to a gift and points out that Section 304’s purpose in guarding against the risk of quid pro quo corruption underlies many federal laws prohibiting government officials from receiving gifts.
Senator Cruz argues that Section 304 unconstitutionally deters candidates, committees, and contributors from exercising their free speech rights. According to Senator Cruz, increasing the risk that a candidate’s personal loans will not be repaid in full or at all impermissibly causes candidates to be less likely to contribute to their own campaigns. Senator Cruz points out that the cap unjustifiably compels committees to redirect their limited funds to repaying candidates for loan balances exceeding $250,000. Finally, Senator Cruz argues that the cap represents yet another constraint that further burdens contributors already affected by existing federal contribution limits. This direct and significant burden, Senator Cruz contends, fails strict scrutiny because it does not serve any anti-corruption interest. Senator Cruz points out that the original purpose of the limit was to “level the playing field” between incumbents and challengers with differing fundraising capabilities. Senator Cruz observes that Congress already addressed the corruption risk by imposing a federal limit of $2900 on individual contributions; to imply that any post-election contribution inherently poses a corruption risk would illogically contradict Congress’s judgment in allowing post-election contributions at all.
Senator Cruz argues that, following the FEC’s logic, the anti-corruption concern should apply only to winning candidates; losing candidates pose no risk of changing their votes to serve special interests. Senator Cruz also points out that this risk should implicate loan-repayments of any amount; here, however, the cap inexplicably only bars amounts in excess of $250,000. Cruz observes that the FEC failed to submit any evidence of actual quid pro quo corruption in the record and concludes that their fear is therefore unfounded. Loan repayment,
Senator Cruz contends, is not analogous to a gift because it does not increase a candidate’s personal wealth, but merely reimburses a personal investment. Therefore, Senator Cruz contends that Section 304 is not sufficiently tailored because it is overbroad, applying to both winning and losing candidates, and underinclusive, addressing only loan repayments exceeding $250,000, and therefore should not survive strict scrutiny.
Discussion
STANDING, TRACEABILITY, AND THE EASE OF CONSTITUTIONAL CHALLENGES TO ALLEGEDLY UNLAWFUL GOVERNMENT ACTION
Public Citizen, in support of the FEC, contends that while unduly narrowing the scope of standing threatens the ability of genuinely injured persons to challenge the constitutionality and legality of government actions, traceability between the alleged injury and the defendant’s purportedly illegal or unconstitutional action does not pose an onerous requirement. Public Citizen further argues that requiring the injury to be “fairly traceable” to the challenged action of the defendant is key to ensuring that would-be plaintiffs have a personal connection to the government action that they seek to challenge, and that courts do not exceed the boundaries of their constitutionally-prescribed role. Public Citizen elaborates that the function of courts is limited—they are a non-political branch of government and therefore, courts should only resolve “‘real controvers[ies] with real impact on real persons,” rather than making policy via engineered test cases with no actual link between the alleged injury and the challenged action.
The New Civil Liberties Alliance (NCLA), in support of Senator Cruz, counters that adopting the heightened standing requirement proposed by the FEC, which would require that the alleged injury be “fairly traceable” to the challenged conduct, would have disastrous effects for advocacy organizations conducting impact and public-interest litigation. In particular, NCLA contends that a “fairly traceable” standing requirement would “seriously hamper NCLA’s—and everyone else’s— ability to raise separation-of-powers and similar structural constitutional challenges” including “all nondelegation doctrine challenges, regardless of who brings them.” NCLA asserts that for organizations which primarily bring structural challenges to the legality of actions taken by the administrative state, the “fairly traceable” doctrine would foreclose challenges to underlying statutes as would-be plaintiffs usually only sustain injury from implementing regulations and agency action—not the statute itself. Ultimately, even beyond administrative-law challenges, NCLA claims that such a “heightened standard . . . would have a devastating impact on the ability of individuals to raise judicial challenges to unlawful action by federal officials.”
COMBATING APPARENT OR ACTUAL CORRUPTION AND PRESERVING THE INTEGRITY OF GOVERNMENT
The Brennan Center for Justice at New York University School of Law (Brennan Center), in support of the FEC, contends that the loan-repayment limit furthers the government’s key interest in preventing actual or perceived quid pro quo corruption, in which public officials are “misusing their position for personal gain or otherwise acting—or even appearing to act—in favor of personal financial interests, rather than the public good.” The Constitutional Accountability Center (CAC), also in support of the FEC, additionally argues that this anticorruption interest is so important because “[c]orruption was a chief concern that informed the Framers’ design of the Constitution” as the Framers believed that even perceived corruption could destabilize the Republic, destroy the public trust, and risk the “integrity of the fledgling American government.” To this end, the CAC points to existing constitutional provisions such as the Foreign Emoluments Clause, the Domestic Emoluments Clause, the Ineligibility and Emoluments Clause, and the Elections Clause as illustrative of the Framers’ concerted efforts to create constitutional safeguards against even the perception of corruption. The CAC claims that the loan-repayment limit similarly furthers this foundational anti-corruption interest by narrowly targeting post-election contributions which directly benefit the candidate. The CAC contends that such contributions are especially dangerous because there are no restrictions on a candidate’s use of the repaid funds, and donors make post-election contributions with the knowledge of which candidate won, thereby risking at least the appearance that the donor expected political favors from a winning candidate in return for his contribution. The Campaign Legal Center (CLC), further in support of the FEC, concurs, arguing that even if there is not a single actual instance of quid pro quo corruption stemming from repayments with post-election contributions, the potential for corruption inherent in such transactions is sufficient to merit the loan-repayment limit.
The Public Policy Legal Institute (PPLI), in support of Senator Cruz and the Committee, counter that the FEC’s regulation is unnecessary because there is no record of actual quid pro quo corruption occurring in the use of post-election contributions to repay a candidate’s personal loan to his campaign. PPLI additionally claims that studies show that campaign finance restrictions actually increase public suspicion of government misconduct, undermining the idea that the loan-repayment restrictions minimize the appearance of corruption. Senators Blunt, Cassidy, Cramer, Hyde-Smith, and Wicker (Senators), also in support of Senator Cruz and the Committee, further contend that the loan-repayment limit is unnecessary as any risk of corruption is already addressed by general limits on contributions and disclosure requirements. Furthermore, the Republican National Committee (RNC), also in support of Senator Cruz and the Committee, claims that candidates do not actually benefit from making loans to their campaigns; rather, upon repayment, the candidates are merely returned to their prior financial position. The Institute for Free Speech (IFS) further concurs in support of Senator Cruz and the Committee, arguing that by making a loan to their campaign, candidates risk losing their principal or the interest they could have made by investing their money elsewhere. The IFS adds that candidates are limited to commercially reasonable rates if they do charge interest. Furthermore, the IFS contends that a winning candidate may actually frown upon “fair-weather” donors who contribute only after the candidate wins the election, further minimizing the risk of corruption. Ultimately, Senator McConnell argues, in support of Senator Cruz and the Committee, that rather than furthering a legitimate government interest in anti-corruption, the loan-repayment limit serves only to protect incumbents from self-funded challengers.
Full text available at https://www.law. cornell.edu/supct/cert/21-12.
Written by Arisa Herman and Amaris Cuchanski. Edited by Alyssa Ertel.
National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration (No. 21A244)
Oral argument: Jan. 7, 2022
Court below: U.S. Court of Appeals for the Sixth Circuit This case asks the Supreme Court to consider whether a stay should be issued against the Occupational Safety and Health Administration’s (OSHA) vaccine-or-testing regime for businesses with 100 or more employees. The petitioner, the National Federation of Independent Business, argues that the Court should stay the emergency temporary standard because it is likely that the emergency temporary standard at issue exceeds OSHA’s authority, and the businesses will suffer irreparable harm absent a stay. In response, Respondent OSHA argues that Congress explicitly authorizes it to address COVID-19 exposure at the workplace; and therefore, an emergency temporary standard is lawful when OSHA determines, based on substantial evidence, that it is necessary to address the immediate risk of COVID-19. The Court’s decision on this case could have significant impacts on the economy, constitutionally protected liberties, and public health.
Full text available at https://www.law. cornell.edu/supct/cert/no._21a244.
Gallardo v. Marstiller (No. 20-1263)
Oral argument: Jan. 10, 2022
Court below: U.S. Court of Appeals for the Eleventh Circuit
This case asks the Supreme Court to determine whether, pursuant to the federal Medicaid Act, a state Medicaid program may recover reimbursement for its payment of a beneficiary’s past medical expenses by allocating funds from a portion of the participant’s settlement that compensates for future medical expenses. Florida law requires Medicaid beneficiaries to assign any rights to reimbursement for medical care from third parties to the state. In this case, Gianinna Gallardo contends that a state cannot collect reimbursement for future medical expenses from a Medicaid beneficiary’s settlement against a third party. In response, Simone Marstiller, secretary of the Florida Agency for Health Care Administration, counters that the state may recover reimbursement for both past and future medical expenses because the Florida statute does not explicitly bar recovery for future medical care. The outcome of this case will affect how the burden of Medicaid costs is allocated between individuals and the state and federal governments.
Full text available at https://www.law. cornell.edu/supct/cert/20-1263.
Johnson v. ArteagaMartinez (No. 19-896)
Oral argument: Jan. 11, 2022
Court below: U.S. Court of Appeals for the Third Circuit
This case asks the Supreme Court to determine whether, under the Immigration and Nationality Act, the government must prove to an immigration judge by clear and convincing evidence, that an alien who has been detained for six months is a flight risk or dangerous to the community. In 2018, U.S. Immigration and Customs Enforcement agents detained Antonio Arteaga-Martinez, a native and citizen of Mexico, who had illegally entered the United States in September 2012. The parties differ on whether 8 U.S.C. § 1231 requires a bond hearing after six months of detention, or whether the Department of Homeland Security needs to prove that an alien is a flight risk or danger to the community. The government, represented by Tae Johnson, maintains that neither are required based on the plain meaning of the statute. Further, Johnson claims that current Immigration and Customs Enforcement policies satisfy due process requirements, citing mechanisms such as required hearings, review processes, and access to attorneys. In response, Arteaga-Martinez argues that a bond hearing is required after six months of detention, and that the Department of Homeland Security must then prove that the immigrant is a flight risk or a danger to the community. Mr. Arteaga-Martinez adds that due process is not met by the government’s scheme. This case has important implications for immigrant rights and the administration of immigration law.
Full text available at https://www.law. cornell.edu/supct/cert/19-896.
Garland v. Gonzalez (No. 20–322)
Oral argument: Jan. 11, 2022
Court below: U.S. Court of Appeals for the Ninth Circuit This case asks the Supreme Court to consider the due process rights of noncitizens detained within the United States immigration system for over six months. Attorney General Merrick Garland argues that these detainees are not entitled to bond hearings before immigration judges after six months of detention and maintains that courts may not grant them classwide injunctive relief. Class action representative Esteban Aleman Gonzalez counters that the Due Process Clause requires that noncitizen detainees receive bond hearings before immigration judges and asserts that detainees may receive classwide injunctive relief. The outcome of this case will have impacts on the functioning of the federal immigration system as well as the safety of detainees.
Full text available at https://www.law. cornell.edu/supct/cert/20-322.
Boechler, P.C. v. Commissioner of Internal Revenue (No. 20-1472)
Oral argument: Jan. 12, 2022
Court below: U.S. Court of Appeals for the Eighth Circuit This case asks the Supreme Court to determine whether a 30-day filing deadline serves as a flexible procedural rule or a limitation on the Tax Court’s jurisdiction. Petitioner Boechler argues that the filing deadline is a procedural rule that is subject to the remedy of equitable tolling to effectively grant extensions in appropriate circumstances. Respondent Commissioner of Internal Revenue counters that the 30-day filing deadline proscribes a jurisdictional prerequisite, limiting the Tax Court’s jurisdiction to only those petitions that were timely filed within the 30-day period. The outcome of this case has important implications for the treatment of tax law, interpretation of filing deadlines within interconnected statutory schemes, and disparate outcomes for low-income taxpayers.
Full text available at https://www.law. cornell.edu/supct/cert/20-1472.
Cassirer v. ThyssenBornemisza Collection Foundation (No. 20-1566)
Oral argument: Jan. 18, 2022
Court below: U.S. Court of Appeals for the Ninth Circuit
This case asks the Supreme Court to consider whether a federal court should apply the forum state’s choice-of-law rules or federal common law in cases brought against a foreign state under the Foreign Sovereign Immunities Act (FSIA). Petitioner David Cassirer contends that the forum state’s choice-of-law rules should apply, arguing that Congress intends state law to apply so that results in cases against a foreign national and against a foreign state are the same. Thus, Cassirer argues that, in this case, California substantive law should apply. In response, Respondent Thyssen-Bornemisza Collection Foundation (TBCF) contends that federal common law should apply because jurisdiction under FSIA is more analogous to federal question jurisdiction rather than diversity jurisdiction. In this case, TBCF argues that Spanish law should govern. This case has important policy implications for foreign relations, international justice, and the separation of powers.
Full text available at https://www.law. cornell.edu/supct/cert/20-1566.
Shurtleff v. City of Boston (20-1800)
Oral argument: Jan. 18, 2022
Court below: U.S. Court of Appeals for the First Circuit The Supreme Court must decide whether the City of Boston violated the First Amendment by refusing to fly a flag bearing a Latin cross on a flagpole in front of City Hall. Boston allowed private parties to apply for permission to raise and display their flags on one of three flag poles in front of City Hall. Before Boston rejected Petitioner Harold Shurtleff’s application to fly a flag bearing a Latin cross, it had approved every one of the 284 applications it received. Shurtleff argues that Boston designated the flagpole as a public forum for private speech and committed unconstitutional viewpoint discrimination by refusing to fly Shurtleff’s flag because it bore a Christian symbol. Boston responds that, because the flags flown in front of City Hall are government speech, not private speech, Boston could evaluate flag-raising applications with reference to content and viewpoint, without running afoul of the First Amendment. Interested parties on either side of the case warn of potential chilling effects on private speech, as well as the risk of hostility from the government or from private parties.
Full text available at https://www.law. cornell.edu/supct/cert/20-1800.
Concepcion v. United States (No. 20-1650)
Oral argument: Jan. 19, 2022
Court below: U.S. Court of Appeals for the First Circuit This case asks the Supreme Court to determine whether the First Step Act requires or merely allows courts to consider post-sentencing developments during First Step Act sentence modifications. Petitioner Carlos Concepcion argues that the First Step Act requires courts to consider post-sentencing legal and factual developments during sentence modifications. Respondent United States counters that the First Step Act grants courts the discretion to consider post-sentencing developments during sentence modifications. The outcome of this case will impact the sentencing of many low-level drug offenders as well as a court’s authority over resentencing under Section 404 of the First Step Act.
Full text available at https://www.law. cornell.edu/supct/cert/20-1650.
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