Latest news with #IanMillhiser
Yahoo
18-05-2025
- Politics
- Yahoo
Donald Trump keeps declaring national emergencies. Why?
President Donald Trump has made a habit of declaring emergencies. Since he took office for his second term, Trump has issued declarations of emergency at the southern border. On energy and trade. About drug trafficking and cartels, and even the International Criminal Court. In all, he's declared eight emergencies in his first 100 days, a rate that far outstrips any previous president, including his own first term. It's unclear whether all these things meet the legal standard for an 'emergency' — a situation so unusual and extraordinary that it can't wait for congressional action. The US trade deficit with China, for instance, has been the status quo for decades. But by declaring it an emergency, Trump unlocks special authorities that wouldn't otherwise be available to him. The question of whether Trump can use his emergency powers this way is currently making its way through the courts, and our colleague Ian Millhiser has been following along as proceedings kicked off in the Court of International Trade. In the meantime, we at Today, Explained wanted to understand why Trump is so keen to tap these powers to achieve his agenda, so we called up Elizabeth Goitein. She's a senior director at the Brennan Center for Justice and an expert on presidential emergency powers. Goitein spoke with Today, Explained co-host Noel King about the history of national emergencies, what Trump can do with his powers, and whether Congress should do something about it. An excerpt of their conversation, edited for length and clarity, is below. There's much more in the full podcast, so listen to Today, Explained wherever you get podcasts, including Apple Podcasts and Spotify. I don't think most Americans feel like we're living in a time of eight distinct emergencies that we weren't living in six months ago. Why does the president do this? A national emergency declaration is an extraordinarily powerful thing. It unlocks enhanced powers that are contained in 150 different provisions of law, all of which say something like, 'In a national emergency, the president can do X,' or, 'In a national emergency, the president doesn't have to do Y.' These are powers that allow the president to take actions that go beyond what Congress has authorized in nonemergency situations. In some cases, they allow him to take actions that Congress has expressly prohibited in nonemergency situations. This can be a very tempting tool in order to implement policy in situations where there's not sufficient support from Congress or where Congress has actually prohibited that policy. You can see why the temptation is there for presidents to use these powers rather than go through the normal policy-making and law-making process. President Trump sometimes behaves as if the emergency powers were granted by God, but actually what you're saying is: They come from Congress. This is Congress saying, 'We will allow you to have additional power in times of emergency.' When and why did Congress initially do this? Congress has been providing these powers to the president since the founding. Our current system, in which the president declares a national emergency, and that declaration unlocks powers that are included in other statutes, dates back to World War I. This system where Congress would talk about national emergencies and then the president started issuing declarations of national emergency evolved organically. In fact, the organic nature of it turned out to be a problem, because there was no overarching law that governed the process. There was no time limit on how long an emergency could stay in place. There was no reporting to Congress. This is why Congress, in the 1970s, enacted the National Emergencies Act. It placed a time limit on how long an emergency declaration could stay in place without being renewed by the president. The NEA also, as originally enacted, gave Congress the power to terminate an emergency declaration using a legislative veto. That's a law that goes into effect with a simple majority of both houses of Congress and without the president's signature. That was a ready means for Congress to shut down an emergency declaration that was either inappropriate or was lasting too long. But then in 1983, the Supreme Court held that legislative vetoes are unconstitutional. So today, if Congress wants to terminate an emergency declaration, it basically has to pass a law by a veto-proof supermajority, which is next to impossible in today's political climate. How far can the president go with emergency powers? What kinds of things could he do? If you look at these 150 powers that are at the president's disposal in a national emergency, a lot of them really do seem reasonable on their face. They seem measured, something that you would want and expect the president to have. But others seem like the stuff of authoritarian regimes. There is a law that dates back to 1942 that allows the president to take over or shut down communications facilities. This was last invoked in World War II. Today, it could arguably be used to assert control over US-based internet traffic. There's another law, the International Emergency Economic Powers Act, that allows the president to freeze the assets of almost anyone, including a US person, if the president deems it necessary to address a foreign or partially foreign threat. In fact, the president can also make it illegal for anyone to engage in any financial transactions with that person, including something as simple as renting them an apartment or giving them a job or even selling them groceries. So these are some really alarming authorities in terms of the potential for abuse. You've laid out why granting some of these powers does make sense in times of emergency. Some of them, though, seem like a lot of power. Donald Trump is a highly unusual American president. Is it possible that Congress made a mistake in assuming that every American president would be like the guy who came before? Yes. Congress made a mistake. To be fair, Congress did give itself a ready means of terminating emergency declarations, and Congress did not foresee that the Supreme Court was going to take that off the table. However, I think it was a mistake to leave the law in place as it was without that safeguard. I think it is time — past time — for a reckoning for Congress, to not only reform the process of national emergency declarations and the termination of those declarations, but also to look at some of these individual powers like the Communications Act, which allows the president to take over or shut down communications facilities, and the power over domestic transportation. Congress should put some limits and safeguards on those powers.
Vox
15-04-2025
- Politics
- Vox
The Supreme Court threatens to bring 'Don't Say Gay' to every classroom in America
is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court. Remember Florida's 'Don't Say Gay' law? The unconstitutionally vague law imposed such unclear restrictions on teachers who speak about sexual orientation or gender identity that many feared they could be fired merely for mentioning their spouses. Eventually, Florida agreed to a settlement which affirmed its right to do things like excluding Harvey Milk from the state history curriculum, but which also clarified that teachers may refer to the concept of being gay. SCOTUS, Explained Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser. Email (required) Sign Up By submitting your email, you agree to our Terms and Privacy Notice . This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Now, however, the Supreme Court will hear a case that could impose a regime similar to Florida's original Don't Say Gay law on every public school in the country. The plaintiffs in Mahmoud v. Taylor — a group of Muslim and Christian parents — don't specifically ask the justices to ban discussions of homosexuality or gender identity from classrooms. Instead, they seek a right to be notified if their children are about to be taught from certain books they claim contain LGBTQ themes, as well as an opportunity to opt those children out of the lessons. To grant this request, they want the Court to embrace a legal rule that would place such heavy obligations on teachers who discuss these topics that it is unclear whether they would practically be able to do so. Furthermore, even if public schools tried to comply with these disclosure requirements, they are so burdensome that doing so would likely be impossible. The case arises out of a Maryland school district's decision to approve a handful of books with LGBTQ themes for use in public school classrooms. While the plaintiffs and the school district appear to agree that some books that focus on queer characters were approved for some purpose, they can't seem to agree on any of the other facts of the case. The plaintiffs, who are represented by the Becket Fund, an influential legal organization that often represents conservative Catholic causes, list seven books in their brief that they claim the school district approved for classroom use (though the brief acknowledges that two were later withdrawn). The district's brief, by contrast, claims that only five books are at issue. Only three books appear on both parties' lists. Indeed, as a federal appeals court that heard this case complained, the case record contains no information 'about how any teacher or school employee has actually used any of the Storybooks in the Parents' children's classrooms, how often the Storybooks are actually being used, what any child has been taught in conjunction with their use, or what conversations have ensued about their themes.' It is quite odd that the highest Court in the nation decided to weigh in on this case before the lower courts have even determined what the case is actually about, especially given it's not even clear that these books have been used in any classroom instruction whatsoever. The Court's decision to prematurely take up the Mahmoud case, however, is consistent with the current crop of justices' past behavior, which has favored religious — especially Christian — causes. Just one month after Justice Amy Coney Barrett's confirmation gave the Republican Party a 6-3 majority on the Supreme Court, five of the Court's Republicans handed down a sweeping decision that revolutionized the Court's approach to religion, giving individuals who object to laws on religious grounds a broad new right to ignore those laws. And that's just one of many decisions the Court has handed down since then which benefit conservative Christian causes. Related The Supreme Court is leading a Christian conservative revolution The Court's Republican majority has appeared quite impatient to remake the law to be much more favorable to the religious right. Still, the legal rule Becket seeks in Mahmoud would be so disruptive to public schools that teachers and administrators can only hope that the justices stay their hand in this case. The Mahmoud plaintiffs would impose impossible obligations on public schools The First Amendment does not permit laws — or school district policies, for that matter — 'prohibiting the free exercise' of religion. The key word here is 'prohibiting.' As the Supreme Court said in Lyng v. Northwest Indian Cemetery (1988), the Constitution's free exercise clause targets government actions that tend 'to coerce individuals into acting contrary to their religious beliefs.' It's certainly possible to imagine LGBTQ-focused classroom instructions that could violate this rule against coercion. If a teacher required a student who believes that being gay is a sin to write an essay repudiating that belief, for example, that would be unconstitutional. It would also likely be unconstitutional to require this student to read aloud from a pro-gay text. So it is possible that, once the Mahmoud case is fully litigated and the facts are known, that courts will discover that some of the plaintiffs' rights were violated. Because the Supreme Court took this case up before any of that could happen, however, there is no way to know if the school district complied with the Constitution. Becket's brief seeks to bypass the normal litigation process and instead impose a new obligation on public schools. Schools, they argue, must notify parents if their children will receive 'instruction on gender and sexuality in violation of their parents' religious beliefs,' and give those parents an opportunity to opt their child out of that instruction. If it were possible to limit this obligation solely to the plaintiffs in this case, then it might at least be logistically feasible for schools to comply with Becket's proposed rule. But the Constitution does not permit schools to provide a service to people with anti-LGBTQ religious beliefs that it does not also provide to any other person of faith. Imagine, for example, that a public school offers kosher lunches to Jewish students who request one. Barring extenuating circumstances, it must also offer halal lunches to Muslim students, because the government cannot discriminate against Muslims and in favor of Jews. The same rule also applies to students with idiosyncratic religious beliefs. Suppose that a school has a dress code which requires all students to wear white shirts. If one student's religion compels him to wear red shirts, and the school permits this student to do so, it must also allow another student from a blue-shirt-wearing religion to depart from the dress code. This rule against discrimination has profound implications, if Becket's clients prevail. If a school gives a particular accommodation to people with one set of religious beliefs — the belief that their children should not be exposed to literature with LGBTQ characters — then it must provide this same accommodation to any other person with a religious objection to how the school operates. If Becket's rule were implemented, in other words, every public school would have to provide advance notice to any parent about any lesson that might offend that parent's religious views. But, in a nation as religiously diverse as the United States, it is simply not possible for public schools to comply with such an obligation. Consider, for example, Bowen v. Roy (1986), a case involving parents who objected, on religious grounds, to the government's decision to issue a Social Security number to their daughter. According to the Court's opinion in Bowen, the girl's father believed that 'he must keep her person and spirit unique, and that the uniqueness of the Social Security number as an identifier' would ''rob the spirit' of his daughter.' Under Becket's framework, this parent could legally say that he needed to be notified — and allowed to object — before any attempt was made by a school district to assign a unique identification number to his daughter, and other parents might need to be given an opportunity to opt their children out of the school's internal record-keeping system also. Consider, as well, a federal appeals court's opinion in Mozert v. Hawkins County Board of Education (1987), a case very similar to Mahmoud where the appeals court rejected parents' attempt to opt their children out of lessons they disagreed with on religious grounds. Unlike the parents in Mahmoud, however, the parents in Mozert had much broader religious objections. One of them opposed lessons that touched on themes as diverse as 'evolution and 'secular humanism,'' 'futuristic supernaturalism,' 'pacifism, magic and false views of death.' Under Becket's proposed rule, in other words, schools must provide advance notice if their child will be exposed to works of fantasy like The Chronicles of Narnia or the Harry Potter series, to lessons about famous pacifists like Mahatma Gandhi or Martin Luther King Jr., to the concept of death, or to 'secular humanism' — however it was defined. Indeed, if you spend enough time reading old legal cases brought by people of faith, it's possible to uncover a nearly infinite variety of religious believers that, under the Constitution, must be treated with the same dignity and given the same rights as Becket's clients in the Mahmoud case. If public schools were required to provide advance notice of any lesson that might offend any parent's religious views, they would be overwhelmed by this obligation. Parents would be deluged with paperwork informing them of every minor detail of any upcoming lesson. Teachers would face the impossible task of tracking which students must be shielded from The Lion, the Witch and the Wardrobe, which students cannot be assigned an ID number, which students must be excused from lessons on the civil rights movement, and which students must never read a book where two women hold hands. And woe betide the poor educator who, without first warning their students' parents, makes a spontaneous remark that might offend someone's religious beliefs. As Justice Robert Jackson warned in a 1948 concurring opinion, 'if we are to eliminate everything that is objectionable to any of these warring sects or inconsistent with any of their doctrines, we will leave public education in shreds.' Becket's proposed rule is unworkable even in a limited form Perhaps recognizing that it would be impossible for schools to inform parents of every single lesson that might offend some person's religious views, Becket spends much of its brief arguing that lessons concerning gender and sexuality are special. They even make the extravagant claim that 'no state has ever affirmatively denied parents access to information and opportunity to opt-their child out from instruction on gender and sexuality.' The idea that children are not routinely exposed to stories about gender and sexuality would baffle anyone with even a passing familiarity with the Disney canon. Snow White, Sleeping Beauty, and Cinderella are all romances about women who marry princes. Some of the most famous, and widely taught, works of literature are musings on gender and sexuality. Think of the first line of Pride and Prejudice: 'It is a truth universally acknowledged, that a single man in possession of a good fortune, must be in want of a wife.' But let's assume that the Court decides to create a narrowly gerrymandered rule that gives the Mahmoud plaintiffs what they appear to want — advance warning and a right to opt their children out from any exposure to queer gender or sexuality. Even this relatively narrow rule would be a logistical nightmare for public schools, for the simple reason that teachers cannot possibly anticipate everything that will happen in their classrooms and advise parents of it in advance. Suppose, for example, that during a civics lesson on the structure of America's executive branch of government, a student raises their hand and asks whether any members of President Donald Trump's Cabinet are gay. Is the teacher required to halt the lesson, and immediately call every child's parents to notify them, before they reveal the forbidden knowledge that Treasury Secretary Scott Bessent is a gay man? Or suppose that a teacher asks their students to read a novel of their own choosing and deliver an oral report on that book to the entire class. Must that teacher also call a halt to a student's book report if the student selects the book Less, a Pulitzer Prize-winning novel about a gay writer? As a practical matter, the only way a school could comply with an obligation to inform parents of any instruction that touches on queer gender or sexuality would be to ban spontaneous discussion of these topics from the classroom altogether. What Becket is asking for is a 'Don't Say Gay' rule on steroids. The Supreme Court isn't supposed to decide cases before they know what they are about The Constitution limits the federal judiciary's jurisdiction to 'cases' and 'controversies' where one or more parties can articulate a concrete legal dispute with another party. For nearly all of American history, this provision has been understood to prevent the courts from answering hypothetical questions. When the Washington administration submitted a list of questions to the Supreme Court concerning the new nation's treaty obligations to France, the justices responded with a letter informing President George Washington that they could not answer these questions unless they arose in a proper lawsuit. One important reason for this rule is that, when judges decide cases involving very particular facts, they can tailor those decisions to the specific dispute between the two parties. Instead of handing down a sweeping, quasi-legislative decree that all public schools are now bound by unworkable disclosure rules, they can craft a legal rule that vindicates a plaintiff's constitutional rights without doing unnecessary harm to institutions. That is how the Mahmoud case should proceed. The Supreme Court should send it back to the lower courts without a decision — a process known as dismissing the case as 'improvidently granted' — to allow those courts to figure out what is actually going on in this case. Again, it is entirely possible that some of the Mahmoud plaintiffs' rights were violated by their children's school district, and if that is the case then the courts should provide them with appropriate relief.
Vox
26-03-2025
- Politics
- Vox
Kavanaugh and Barrett appear likely to break with the Supreme Court's MAGA wing
is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court. The Supreme Court spent Wednesday morning giving very serious consideration to a case that no one should take seriously. FCC v. Consumers' Research asks the justices to revive a long-dead legal doctrine known as 'nondelegation,' which places strict limits on Congress's authority to delegate power to federal agencies, and essentially move that power over to the judiciary. The problem with this legal doctrine, besides the difficulty it would create for agencies trying to carry out their mandates, is that it appears nowhere in the Constitution, and so it is impossible to come up with principled rules to guide when judges should strike down a law empowering an agency. SCOTUS, Explained Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser. Email (required) Sign Up By submitting your email, you agree to our Terms and Privacy Notice . This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. The Consumers' Research case is also a strange vehicle to revive the Nondelegation Doctrine because the particular statute at issue in this case clearly should be upheld under the Court's current nondelegation precedents. In fact, even if the Court were to abandon those precedents in favor of an alternative, more restrictive nondelegation framework that was proposed by Justice Neil Gorsuch in a 2019 dissent, the federal program at issue in Consumers' Research should still be upheld. While all six of the Court's Republicans showed sympathy with the broader project of expanding the Court's power to overrule federal agencies, only three of them appeared likely to strike down the law that is actually at issue in Consumers' Research. The Court's opinion in this case could still have considerable long-term implications if it embraces Gorsuch's proposed framework or otherwise expands the judiciary's authority. But the statutory scheme that is before the justices right now seems likely to survive. So what is at issue in this case? Consumers' Research involves a program known as the Universal Service Fund, which provides telephone and internet service to rural areas and other regions that are difficult to wire. In the absence of this program, these services would be prohibitively expensive in many poorer or more sparsely populated regions of the country. Related A new Supreme Court case seeks to revive one of the most dangerous ideas from the Great Depression The Universal Service Fund effectively taxes telephone and internet service providers and uses that money to pay for service in these expensive areas. As a practical matter, that means service providers pass the cost of this tax onto their urban and suburban customers — so people in cities wind up subsidizing communications for people in rural communities. One challenge Congress faced when it created this program is that the amount of money the Fund must raise to achieve universal service varies from year to year. So, rather than setting a precise annual tax rate for service providers, Congress tasked the Federal Communications Commission (FCC) with determining how much money the fund should collect. The federal statute at issue in Consumers' Research provides extraordinarily detailed instructions regarding how to make this determination. It only permits the FCC to subsidize services that are used by 'a substantial majority of residential customers,' it instructs the FCC to raise enough money so that rural customers pay 'reasonably comparable' rates to other customers, and it lays out numerous other principles which the FCC must follow. Thus, the FCC should look at which communications services the overwhelming majority of Americans already have, and it should raise enough funds to ensure that rural customers pay similar rates to urban customers, without raising so much money that rural rates are significantly cheaper. Under the Court's current precedents, Congress must only provide an agency with an 'intelligible principle' that it must follow when it exercises its authority, and there's no serious argument that this statute fails this test. Gorsuch's dissent in Gundy v. United States (2019), which also concerned nondelegation, proposed a new and much vaguer rule — Congress must put 'forth standards 'sufficiently definite and precise to enable Congress, the courts, and the public to ascertain' whether Congress's guidance has been followed' — but even under Gorsuch's standard it is tough to make an argument that the Universal Service Fund is illegal. Only three of the justices seemed to believe that the Universal Service Fund is illegal Perhaps for this reason, Justice Clarence Thomas suggested a completely novel way to invalidate the Fund. Thomas suggested that the nondelegation doctrine should apply with more force in taxing cases, limiting Congress's power to determine how much a federal agency may raise. One problem with Thomas's approach, however, is that the Court held in Skinner v. Mid-America Pipeline Co. (1989) that the Constitution does not 'require the application of a different and stricter nondelegation doctrine in cases where Congress delegates discretionary authority to the Executive under its taxing power.' So reaching Thomas's preferred result would require the Court to overrule Skinner. Justice Samuel Alito, meanwhile, followed his typical practice of peppering the side that counters Republican orthodoxy with a series of unrelated questions, in the hopes that they would stumble over one of them — and he was joined in this tactic by Justice Gorsuch. Over the course of the argument, Alito and Gorsuch complained that the FCC created a corporation to advise it on how to set rates, that the taxing power can potentially be used to destroy companies, and that the FCC sought input from the same companies that they are taxing. At one point, Gorsuch went off on a strange tangent about how the government's decision to break up 'Ma Bell' in 1982 created other telephone monopolies. None of these arguments are relevant to whether the Universal Service Fund is constitutional, at least under existing law. Meanwhile, the Court's other Republicans asked some skeptical questions of the two lawyers who defended the Fund, but they ultimately seemed to conclude that this particular nondelegation challenge is unworkable. Justice Brett Kavanaugh, for example, did ask acting Solicitor General Sarah Harris how to distinguish between a tax and a 'fee,' a question that suggests that Kavanaugh has some sympathy for Thomas's position, but ultimately seemed satisfied with Harris's response that this distinction is 'unbelievably murky in practice.' Similarly, while Justice Amy Coney Barrett asked Harris to distinguish this law from other hypothetical laws that would raise more serious nondelegation questions, such as a law that merely instructed the IRS to raise enough money to provide 'food for the needy,' she too seemed skeptical that this particular law is unconstitutional. Notably, Barrett threw cold water on Thomas's suggestion that there should be a special rule for taxes. Congress, she noted, could potentially solve the problem by imposing a cap as high as $3 trillion on the Fund's ability to raise money, but that would be an empty requirement that amounts to nothing more than throwing 'out a number for the sake of throwing out a number.' It appears, in other words, that the Republican justices' general desire to expand the nondelegation doctrine — a desire that five of them have expressed openly at one point or another — is likely to run aground in the Consumers' Research case because this case is such a poor vehicle to expand nondelegation. Congress's instructions to the FCC were as detailed as they could possibly be, unless the Supreme Court wants to strip Congress of its ability to, as Justice Ketanji Brown Jackson said, 'provide a service, however much it costs.' The Court could still use this case to seize power It's notable that, while even the Trump administration agrees that the Universal Service Fund is legal, the federal government switched its position in this case after Trump took office. The government's initial brief, which was filed in the final two weeks of the Biden administration, argues that the Court should apply existing law and uphold the Fund. By contrast, its reply brief (a brief responding to the other side's arguments) treats Gorsuch's Gundy dissent as if it were the law. The reply brief was filed after Trump took office. Even if the Court upholds the Universal Service Fund, which seems likely, the Republican justices could still use this case to abandon the longstanding 'intelligible principle' framework, which gives Congress a great deal of authority to delegate power to agencies, and replace it with Gorsuch's 'sufficiently definite and precise' framework. Because that later framework is so vague, a decision embracing Gorsuch's approach would give judges far more discretion to strike down federal programs that they do not like. So, even if the Court rejects the exceedingly weak attack on the law at issue in this case, it could still use this case to achieve a significant power grab. Gorsuch's framework would transfer a great deal of power from federal agencies, which are controlled by an elected president, and toward a judiciary dominated by Republicans who serve for life. That would mean that the American people would have far less control over how they are governed.
Vox
24-03-2025
- Politics
- Vox
The Supreme Court's new religion case could devastate American workers
is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court. If you know the name of a case the Supreme Court will hear on March 31, Catholic Charities v. Wisconsin Labor & Industry Review Commission, you can probably guess who will prevail. SCOTUS, Explained Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser. Email (required) Sign Up By submitting your email, you agree to our Terms and Privacy Notice . This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. But, while the outcome in Catholic Charities seems unlikely to be a surprise, the stakes in the case are still quite high. Catholic Charities seeks an exemption from Wisconsin's law requiring nearly all employers to pay taxes that fund unemployment benefits. If the Court grants this exemption, the justices could give many employers a broad new power to evade laws governing the workplace. Like every state, Wisconsin taxes employers to fund benefits for workers who lose their jobs. Like most states, Wisconsin's unemployment benefits law also contains an exemption for church-run nonprofits that are 'operated primarily for religious purposes.' The state's supreme court recently clarified that this exemption only applies to nonprofit employers that primarily engage in religious activities such as holding worship services or providing religious education. It does not apply to employers like Catholic Charities, which provide secular services like feeding the poor or helping disabled people find jobs — even if the employer is motivated by religious faith to provide these secular services. Catholic Charities, however, claims that it has a First Amendment right to an exemption, arguing, among other things, that Wisconsin's limited exemption for some religious nonprofits and not others discriminates against Catholics. Related The Supreme Court is leading a Christian conservative revolution None of its arguments are persuasive, at least under the Supreme Court's existing decisions. But precedent plays hardly any role in how this Court decides religion cases. The Republican justices routinely vote to overrule, or simply to ignore, religion cases that they disagree with. The Court's very first major decision after Justice Amy Coney Barrett's appointment gave Republicans a supermajority on the Court effectively overruled a decision governing worship services during the Covid-19 pandemic that was only a few months old. Realistically, in other words, the Court will likely decide Catholic Charities based on the justices' personal preferences, rather than by following the doctrine of stare decisis, which says that courts should typically follow their own precedents. That said, it remains to be seen how far this Court might go in its ruling. It could choose to distinguish Catholic Charities — which is a legitimate charity that does genuinely admirable work — from employers who claim religious exemptions only to hurt their own employees. But if it chooses to be expansive, it could overrule a line of precedents that protect workers from exploitative employers who claim a religious justification for that exploitation. 'Religious liberty' doesn't mean religious organizations get civil society's benefits and none of its costs In order to understand the Catholic Charities case, it's helpful to first understand the legal concept of a 'corporation.' Corporations are entities that are typically easy to form under any state's law, and which are considered to be entirely separate from their owners or creators. Forming a corporation brings several benefits, but the most important is limited liability. If a corporation is sued, it can potentially be liable for all of its assets, but the owners or controllers of that corporation are not on the hook for anything else. Corporations can also create their own corporations, thus protecting some of their assets from lawsuits. Think of it this way: Imagine that José owns two businesses, one of which sells auto parts, and another that fixes cars. If these businesses are incorporated, that means that José's personal assets (such as his house) are protected if one of his businesses are sued. Moreover, if both businesses are incorporated as two separate entities, a lawsuit against one business cannot touch the other one. So if, say, the auto parts company sells a defective part, that company could potentially be put out of business by a lawsuit. But the car repair company will remain untouched. Catholic Charities is a corporation that is controlled by the Roman Catholic Church. According to its lawyers, the president of Catholic Charities in Superior, Wisconsin, is a Catholic bishop, who also appoints its board of directors. The Catholic Church gains significant benefits from this arrangement, because it means that a lawsuit against Catholic Charities cannot touch the church's broader assets. Under Wisconsin law, however, the church's decision to separately incorporate Catholic Charities also has a cost. Wisconsin exempts employers that engage in religious activity such as worship services from its unemployment regime, but it does not give this exemption to charitable corporations that only engage in secular activity. Because Catholic Charities is a separate legal entity from the church itself, and because it does not engage in any of the religious activity that would exempt it from paying unemployment taxes, it does not get an exemption. Presumably, the church was aware of all of these consequences when it chose to separately incorporate Catholic Charities. The Catholic Church has very good legal counsel, and its lawyers would have advised it of both the benefits of separate incorporation (limited liability) and the price of that benefit (no unemployment exemption). Notably, Catholic Charities has paid unemployment taxes since 1972. But Catholic Charities now claims that this decades-old arrangement is unfair and unconstitutional. According to its brief, 'the Diocese of Superior operates Petitioners 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.' That very well may be true, but if Catholic Charities were not separately incorporated, it also would not benefit from limited liability. That brief alleges three separate constitutional violations — it claims that Wisconsin discriminates 'against religious groups with more complex polities' (that is, with more complex corporate structures), and it also raises two claims that both boil down to an allegation that Wisconsin is too involved with the church's internal affairs because its law treats Catholic Charities differently if that entity were not separately incorporated. The discrimination claim is weak, because the Constitution does not prohibit discrimination against entities with complex corporate structures, it prohibits discrimination on the basis of religion. Wisconsin law treats Catholics no differently than anyone else. If a Muslim, Hindu, Protestant, Jewish, or nonreligious charity also provides exclusively secular services, it also does not receive an exemption from the state's unemployment law. Similarly, Wisconsin law does not entangle the state in the church's internal affairs, or otherwise dictate how the church must structure itself and its subordinate entities. It merely offers the church a bargain that it is free to turn down — the church may have limited liability, but only if it accepts the consequences of separate incorporation. A decision for Catholic Charities could have disastrous consequences for workers Realistically, the immediate consequences of a decision for Catholic Charities would be virtually nonexistent. The church maintains its own internal program that pays unemployment benefits to laid off workers, and it claims that this benefit program 'provides the same maximum weekly benefit rate as the State's system.' So it appears that, no matter who prevails before the Supreme Court, unemployed former employees of Catholic Charities will still receive similar benefits. Related Religious conservatives have won a revolutionary victory in the Supreme Court But other religious employers may not offer benefits to their unemployed workers. If Catholic Charities prevail in this case, that victory would likely extend to all organizations which, like Catholic Charities, engage in secular charitable work motivated by religious belief. So workers in other organizations could be left with nothing. Historically, the Supreme Court was reluctant to allow religious employers to seek exemptions from laws that protect their workers, and for a very good reason — abandoning this reluctance risks creating the situation the Court tried to ward off in Tony and Susan Alamo Foundation v. Secretary of Labor (1985). Tony Alamo was often described in news reports as a cult leader. He was convicted of sexual abuse against girls he considered to be his wives. One of his victims may have been as young as nine. Witnesses at his trial, according to the New York Times, testified that 'Alamo had made all decisions for his followers: who got married; what children were taught in school; who got clothes; and who was allowed to eat.' The Alamo Foundation case involved an organization which was nominally a religious nonprofit. But, as the Supreme Court explained, it operated 'a number of commercial businesses, which include service stations, retail clothing and grocery outlets, hog farms, roofing and electrical construction companies, a recordkeeping company, a motel, and companies engaged in the production and distribution of candy.' Tony was the president of this foundation, and its workers received no cash salaries or wages — although they were given food, clothing, and shelter. The federal government sued the foundation, alleging violations of federal minimum wage, overtime, and record keeping laws. And the Supreme Court rejected the foundation's claim that it was entitled to a religious exemption from these laws. Had the Court ruled otherwise, it could have allowed people like Tony Alamo to exploit their workers with little recourse to federal or state law. The Alamo Foundation opinion warned, moreover, that permitting the foundation to pay 'substandard wages would undoubtedly give [it] and similar organizations an advantage over their competitors.' Cult leaders with vulnerable followers would potentially push responsible employers out of the market, because employers who remained bound by law would no longer be able to compete. Indeed, the Supreme Court used to be so concerned about religious companies gaining an unfair competitive advantage that, in United States v. Lee (1982), it announced a blanket rule that 'when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.' Religious entities were sometimes entitled to legal exemptions under Lee, but they had to follow the same workplace and business regulations as anyone else. It's important to be clear that the Catholic Church bears little resemblance to the Alamo cult, and Catholic Charities certainly does not exploit its workers in the same way that the Tony and Susan Alamo Foundation was accused of doing.
Vox
19-03-2025
- Business
- Vox
A new Supreme Court case seeks to revive one of the most dangerous ideas from the Great Depression
is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court. Federal law seeks to make communications technology like telephones and the internet, in the words of one older statute, 'available, so far as possible, to all the people of the United States.' A longstanding federal program that seeks to implement this goal is now before the Supreme Court, in a case known as FCC v. Consumers' Research, and the stakes could be enormous. If the Supreme Court accepts an argument raised by a federal appeals court, which struck down the federal program, it would bring about one of the biggest judicial power grabs in American history, and hobble the government's ability to do, well, pretty much anything. The Court will hear arguments in Consumers' Research on March 26. SCOTUS, Explained Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser. Email (required) Sign Up By submitting your email, you agree to our Terms and Privacy Notice . This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. While Congress has long called for universal service for telecommunications and similar technology, there are practical obstacles to this goal, especially in rural areas that are far more expensive to wire because residents are more spread out. In these areas, if telephone and internet providers charged a fair market rate, their services could be prohibitively expensive. Which is why Congress created the Universal Service Fund. It effectively taxes telephone and internet service providers, and uses that money to pay for service to underserved communities. As a practical matter, service providers pass the cost of these taxes on to their customers in urban and other cheap-to-serve areas, so Americans living in cities wind up subsidizing telephone and internet in more sparsely populated regions of the country. Because the amount of money the Fund must raise to achieve universal service will vary from year to year, Congress also tasked the Federal Communications Commission (FCC) with determining how much money the Fund should collect from service providers each year. The statute also provides the FCC with detailed instructions on how to determine the amount it should collect, and how that money should be spent. This program has hummed along without incident for nearly three decades — the Fund was created in 1996 — until the US Court of Appeals for the Fifth Circuit abruptly declared it unconstitutional. If you're familiar with the Fifth Circuit's work, you know that this kind of thing is common. The Fifth Circuit is the most right-wing appeals court in the federal system, and its judges often strike down decades-old laws based on unusually creative interpretations of the Constitution. Related The Trumpiest court in America The Supreme Court, despite its 6-3 Republican majority, hands down a few cases every year reversing these Fifth Circuit decisions. Last May, for example, the Court reversed the Fifth Circuit's attempt to strike down an entire federal agency, the Consumer Financial Protection Bureau. Nevertheless, the Consumers' Research case is worth watching for two reasons. One is that the Fifth Circuit's decision was authored by Judge Andy Oldham, a Trump appointee who is widely considered a strong candidate for promotion to the Supreme Court in this administration. Oldham's opinions are often sloppy, and his opinion in Consumers' Research is no exception. The second is that Oldham relied on a legal doctrine known as 'nondelegation' in his opinion targeting the Universal Service Fund. The nondelegation doctrine claims there are strict constitutional limits on Congress's power to empower federal agencies to do all kinds of things, from limiting pollution from power plants, to setting minimum standards for health insurance, to, at least if Oldham gets his way, providing broadband to rural communities. The Supreme Court has only invoked this doctrine twice, both times in 1935, to strike down a federal law, and its decisions since then hold that the doctrine is more or less dead. Still, five of the Republican justices have, at various times, advocated for reviving the nondelegation doctrine. So there is a real risk that the Court could use the Consumers' Research case as a vehicle to do so. If that happens, it would shift a simply enormous amount of power from the elected branches of government to the judiciary. And it could potentially strip the federal government of a whole lot more than its power to equalize telephone and internet rates. Why are the stakes in Consumers' Research so high? Congress frequently enacts laws which lay out a general policy, then task a federal agency with implementing that policy and determining how to achieve it. The law creating the Universal Service Fund, for example, lays out the broad goal of taxing communications service providers and using that money to ensure that everyone has access to those services. But it is also recognized that the amount of money that needs to be raised to achieve this goal, as well as the question of how that money should be distributed, is a moving target that needs to be periodically reassessed by the FCC. Other laws delegate authority to an agency because technology evolves, and agencies employ experts who can monitor that technology and update federal policy accordingly. The Clear Air Act, for example, declares that certain power plants should use the 'best system of emission reduction' that currently exists, while also accounting for factors such as costs. Because Congress recognized that the best system in 2025 will be more advanced than the best system that existed in 1972, it also tasked the EPA with determining what that system is and updating federal power plant regulations so that those plants use modern technology. The stakes in the Consumers' Research case are mitigated somewhat because the Court's Republican majority has already given itself the power to veto federal agency actions. The idea behind the nondelegation doctrine is that the Constitution limits Congress's power to delegate power to agencies in this way, but there's a big problem with it: The doctrine appears nowhere in the Constitution itself, so judges who wish to apply it cannot refer to any text to determine which delegations of power are not allowed. If nondelegation were revived, the only real factor governing which congressional delegations are allowed, and which ones must be struck down, would be whether five justices wanted to strike a particular law down. Many right-leaning legal scholars have argued that this extraconstitutional doctrine is implicit in the Constitution, but it's noteworthy that the people who actually wrote the Constitution disagreed with them. The First Congress made sweeping delegations of power to executive branch officials, giving them, among other things, the power to set regulations governing 'all things touching' trade with indigenous tribes, and the power to grant patients so long as they 'deem the invention or discovery sufficiently useful or important.' And so the Supreme Court has historically treated the nondelegation doctrine with extraordinary suspicion. The Court did apply it twice, in 1935, to New Deal statutes which gave virtually unbounded power to President Franklin D. Roosevelt, but it has never done so again. Supreme Court decisions stretching back nearly a century permit Congress to delegate authority to federal agencies, so long as Congress 'lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.' Though the current Supreme Court has not, at least not yet, struck down a law on nondelegation grounds, it did invent a similar legal doctrine — which, like nondelegation, cannot be found in the Constitution itself — known as the 'major questions doctrine.' Under this doctrine, a majority of the Court may veto any action by a federal agency which five justices believe to be too politically or economically significant. Related How the Supreme Court put itself in charge of the executive branch So the stakes in the Consumers' Research case are mitigated somewhat because the Court's Republican majority has already given itself the power to veto federal agency actions. But there's also an important difference between major questions and nondelegation. Under the major questions doctrine, the proper remedy, if five justices wish to veto an agency action, is to block that specific action — but to otherwise leave the federal law permitting the agency to act intact. The nondelegation doctrine, by contrast, often calls upon federal courts to toss out a statute delegating power to a federal agency altogether. Basically, the Court has already given itself the power to make a targeted strike on any individual agency action it doesn't like, but it could use Consumers' Research to carpet bomb agencies' authority, stripping them of any power to act in the future. Oldham's Consumers' Research opinion is extremely sloppy One reason the justices might stay their hands in Consumers' Research is that this case is a poor vehicle for reviving the nondelegation doctrine. The statute governing the Universal Service Fund provides detailed instructions to the FCC on how it should exercise its authority — far more detail than Congress provided in many other statutes that the Supreme Court has upheld against nondelegation challenges, including cases involving executive branch policy on navigable waters, natural gas rates, and commodity prices. Some of the statutes upheld by the Supreme Court do little more than instruct agencies to remove 'unreasonable' obstacles to commerce. Oldham should have followed these decisions, as he should have followed the Court's precedents requiring him to uphold the Universal Service Fund statute so long as it provides an 'intelligible principle' that the FCC can use to guide its decisions. The Universal Service Fund statute lays out six goals that the FCC should accomplish, in its efforts to provide telecommunications access to rural and poor communities. It specifies who should be taxed ('Every telecommunications carrier that provides interstate telecommunications services shall contribute'), and who should benefit from this tax revenue. And it instructs the FCC on how to determine the rate of taxation. One provision, for example, states that rural customers should receive service 'at rates that are reasonably comparable to rates charged for similar services in urban areas.' Thus, the FCC must tax service providers at a high enough rate to ensure that rural customers pay similar rates to urban customers, but not at such a high rate that rural customers pay significantly less than urban customers. There's simply no question, in other words, that the Universal Service Fund statute provides an 'intelligible principle' to guide the FCC's decisions. The Universal Service Fund would likely survive judicial review even under a more aggressive approach to nondelegation favored by some members of the Court. Dissenting in Gundy v. United States (2019), for example, Justice Neil Gorsuch proposed replacing the intelligible principle standard with a vague new rule providing that Congress must put 'forth standards 'sufficiently definite and precise to enable Congress, the courts, and the public to ascertain' whether Congress's guidance has been followed' whenever it delegates power. Here, Congress has laid out definite and precise rules governing who the FCC should tax, how much it should tax them, and how that revenue should be spent. So how, then, did Oldham justify striking down the Universal Service Fund? The answer is he took extraordinary liberties with the law, ignoring most of the statute, openly defying the Supreme Court's decisions, and simply making up new rules along the way. At one point, for example, Oldham claims that only two provisions of the statute are 'relevant' to determining whether it violates the nondelegation doctrine – a provision stating that the FCC should raise funds 'sufficient … to preserve and advance universal service,' and another provision indicating telecommunications services 'should be available at … affordable rates.' If these were the only instructions the statute provided to the FCC, then Consumers' Research might be a more difficult case. But, of course, Congress said a whole lot more than these two things when it instructed the FCC on how to wield its authority. Oldham also relies on a concurring opinion, by Fifth Circuit Judge Edith Jones, which the Supreme Court repudiated last spring. He places a simply enormous amount of weight on the fact that the FCC created a corporation, known as the Universal Service Administrative Company, which advises it on how to set Universal Service Fund rates. But the Supreme Court held in Sunshine Anthracite Coal v. Adkins (1940) that these sorts of advisory bodies are 'unquestionably valid.' It appears, in other words, that Oldham started with the result he wanted — striking down the Universal Service Fund — and then wrote an opinion pretending that the law actually supports his preferred outcome. So how is the Supreme Court likely to approach this case? Realistically, it is unlikely that even this Supreme Court will strike down the Universal Service Fund. The statute is too detailed, and Oldham's opinion is too nonsensically argued, to justify the result the Fifth Circuit wants to achieve. One thing to watch out for, however, is whether the Republican justices attempt to shift the law governing nondelegation cases, while still upholding the Fund. The Court could, for example, write an opinion repudiating the intelligible principle test and upholding the Fund under Gorsuch's more 'sufficiently definite and precise' standard — a standard that, because of its vagueness, would give judges far more discretion to strike down laws they do not like on nondelegation grounds. So, while Oldham is unlikely to succeed in his ambitious attempt to sabotage the Fund, he may nonetheless achieve a significant victory. By ignoring the law in his Consumers' Research opinion, Oldham gave the justices an opportunity to revive a dangerous legal doctrine, and to do so in an opinion that appears moderate compared to the reactionary Fifth Circuit.
