#Tennessee v. Becerra

[justinspoliticalcorner]

Devan Cole at CNN:

The Biden administration cannot enforce new anti-discrimination rules in health care for transgender Americans, a federal judge in Mississippi ruled Wednesday, citing a recent landmark Supreme Court ruling that weakened the power of federal agencies.

The preliminary injunction from US District Judge Louis Guirola comes just two days before the new protections were set to take effect. The George W. Bush appointee said his block on the federal protections will apply nationwide. The new rules unveiled by the Department of Health and Human Services earlier this year were meant to bar health providers and insurers receiving federal funding from discriminating against those seeking care on the basis of gender identity or sexual orientation. The HHS rule restored Obama-era protections for transgender patients that the Trump administration rolled back in 2020. But the rules were swiftly met with legal challenges, including from a group of Republican state attorneys general who argued that HHS overstepped its authority when it issued the new rules and that they would be harmed by a loss of federal funding for not complying with the changes.

Guirola agreed, ruling that HHS had wrongly leaned on a 2020 Supreme Court ruling that said federal civil rights law that bars sex discrimination protects LGBTQ workers when it issued the new rules. The Biden administration has in recent years used the court’s ruling in the case, Bostock v. Clayton County, to create protections for LGBTQ+ Americans. In ruling against the Biden administration, the judge also pointed to a major Supreme Court ruling last week that overturned the decades-old “Chevron Deference” precedent that required courts to give deference to federal agencies that create regulations based on an ambiguous law.

Yet another destructive consequence of the Loper Bright Enterprises ruling in action, as Louis Guirola cited that ruling to justify blocking enforcement of new anti-discrimination rules in health care for transgender Americans in Tennessee v. Becerra.

See Also:

Law Dork: Trans healthcare anti-discrimination rule blocked nationwide as other LGBTQ rule challenges proceed

[pscottm]

In blocking the rule. Guirola cited the Chevron case where the U.S. Supreme Court recently said that federal agencies should not be given deference in their rules-making.

In State of Tennessee v. Becerra, (SD MS, July 3, 2024), in a suit brought by 15 states a Mississippi federal district court issued a nationwide preliminary injunction barring the Department of Education from enforcing its new rules under Title IX insofar as they define sex discrimination as including discrimination on the basis of gender identity. The court said in part:

The Supreme Court recently held that agencies are no longer entitled to deference pursuant to Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.... because Chevron “allow[ed] agencies to change course even when Congress [had] given them no authority to do so.” Loper Bright Enters. v. Raimondo,....

The Supreme Court further held that “statutes, no matter how impenetrable, do — in fact, must — have a single, best meaning....

In summary, the Court has found no basis for applying Bostock’s Title VII analysis to Section 1557’s incorporation of Title IX. HHS acted unreasonably when it relied on Bostock’s analysis in order to conflate the phrase “on the basis of sex” with the phrase “on the basis of gender identity.”...

... [T]his Court cannot accept the suggestion that Congress, with a “clear voice,” adopted an ambiguous or evolving definition of “sex” when it acted to promote educational opportunities for women in 1972.

[davidmariner]

Whitman-Walker Institute Condemns Nationwide Injunction Blocking Federal Nondiscrimination Protections for Transgender People

Today Whitman-Walker Institute condemned the politically motivated ruling from a federal district court judge that blocks vital nondiscrimination protections for transgender people across the country. Today, a U.S. district court judge in Mississippi issued a nationwide injunction in State of Tennessee v. Becerra, blocking enforcement of key parts of Section 1557 of the Affordable Care Act. This…

[benrleeusa]

[John K. Ross] Short Circuit: A Roundup of Recent Federal Court Decisions

Sacred pachyderms, boating while Latino, and police misconduct insurance.

Over at the Cato Institute's Daily Podcast, IJ Senior Attorney Robert McNamara explains why the Supreme Court's recent decision in NIFLA v. Becerra is one of the most important free speech rulings in a generation. Click here to listen.

Or click here to read McNamara and fellow IJ Senior Attorney Paul Sherman on NIFLA in Cato's Supreme Court Review.

Under decades-old Federal Election Commission regulations, nonprofits that run political ads need disclose the identities only of donors who earmarked their donations for those specific ads. Uh oh! A federal district court holds that this is a plain misreading of the law, which requires all contributors be disclosed. D.C. Circuit: And that is probably right, so we will not grant a stay pending appeal. (NB: Neither will the Supreme Court.)

Advocacy group for the blind sues the Container Store, alleging that the company's use of touch-screen point-of-sale devices—which are inaccessible to blind customers—violates the Americans with Disabilities Act. Not so fast, says the Container Store: You agreed to arbitrate disputes when you signed up for our loyalty program. First Circuit (with retired Justice Souter sitting by designation): They did no such thing, because the terms of the arbitration agreement were never communicated to them.

Third time's a charm (but so were the first and second): After twice persuading the Third Circuit to reinstate her complaint alleging that Pennsylvania prison officials suspended her visitation privileges in retaliation for her exercise of First Amendment rights, pro se plaintiff persuades the same court to vacate the entry of summary judgment in the prison officials' favor. But, adds the Third Circuit: Pleeeeeeease get a lawyer on remand.

Special ed teen pleads guilty to assaulting Brownsville, Tex. corrections officer. Four years into his eight-year prison sentence, video emerges that exonerates him; he's released. Fifth Circuit (en banc): But he can't sue the gov't for hiding exculpatory evidence because he pleaded guilty. The right to receive exculpatory evidence applies only to trials, not to plea-bargaining. By entering a guilty plea, the teen waived the right to a trial and, by extension, the right to receive exculpatory evidence. Judge Ho, concurring: And criminal defendants should be glad that Brady rights are waivable; it gives them the option to trade that right for something better, like less jail time. (Indeed, an unwaivable right is like receiving an elephant as a gift from the King of Siam: if you can't sell the elephant, return it, or trade it, then the pachyderms will "inevitably eat their owners out of house and home.") Judge Costa, dissenting: The trend among our sister courts is to recognize Brady rights pre-trial.

Fifth Circuit: Officers seeking to conduct a "knock and talk" need to back off if no one answers the door—either to conduct more surveillance, get a warrant, or call it a day. What they can't do is repeatedly bang on the door, call residents on the phone, and peek in windows at 2 a.m. So no qualified immunity for Southlake, Tex. officers who allegedly did that and also body-slammed an unresisting, practically blind mother onto brick steps. (Local news write-up of the incident here.)

Seeking to raise tax revenue, Upper Arlington, Ohio officials prohibit schools from operating in business district. Religious school challenges the restriction as a violation of the Religious Land Use and Institutionalized Persons Act. Sixth Circuit: Plaintiff isn't similarly situated to any of the groups allowed to operate in the business district, so there is no violation. Dissent: RLUIPA does not contain a "similarly situated" requirement; you (and other courts) are just making that up.

Nashville city attorney states at oral argument that police forced picketers to leave a public sidewalk near the city's LGBTQ Pride Festival to create a "safe space." Sixth Circuit: But for the content of the picketers' speech, they wouldn't have been removed. That's content-based discrimination; strict scrutiny applies, and Nashville loses. Dissent: The picketers' use of bullhorns means Nashville's action wasn't content-based, and concessions by Nashville's "obviously harried" attorney at oral argument shouldn't count as evidence.

Tennessee state legislator engages in pattern of inappropriate sexual behavior (see the official report), is expelled from the Legislature, and loses his lifetime health insurance and some pension benefits. District court: He can't sue the state's benefits administrators who cut him off; it was the Legislature that voted to do it. Sixth Circuit: Reversed. He has standing.

Milwaukee County Jail has zero-tolerance policy forbidding corrections officers from having sexual contact with inmates, trains guards to avoid such contact and quizzes them to demonstrate they understand. Guard rapes inmate multiple times anyway; he's later fired, prosecuted, jailed for three days. Jury awards inmate $6.7 mil. Seventh Circuit: The county need not pay it.

After six and a half hours of questioning, mentally retarded man confesses that he, along with a cousin, murdered aunt and uncle in their Douglas County, Neb. home. Physical evidence fails to support confession, so crime-scene commander plants blood. Both men charged with murder; charges dismissed months later after Wisconsin teenagers plead guilty to the crime. Eighth Circuit (2012): The men can sue investigators for coercing the confession, fabricating evidence. Nebraska Supreme Court: The (now-former) commander's evidence-tampering conviction is affirmed. Eighth Circuit (2018): The county's insurance company doesn't have to pony up the $6.6 mil the commander has been ordered to pay the men, as his actions were criminal and the policy excludes such things. (Click here for some local longform journalism.)

Memorabilia collector and museum are all shook up over who owns a guitar that Elvis played on his final tour. Eighth Circuit to collector: Don't be cruel, it's the museum's.

Man sends out distress call after his boat engine dies. The Coast Guard tows him to Oxnard, Calif. harbor, where eight officers are waiting to detain him on suspicion of being an illegal alien, which it turns out he is. Ninth Circuit (August 2017): Boating while Latino does not give rise to probable cause; terminate the removal proceedings. But wait! The opinion is withdrawn in July 2018 after its author, Judge Pregerson, dies. Ninth Circuit (now with Judge Wardlaw): Actually, we'll let the immigration court figure out if removal proceedings should be terminated. Judge Paez/Pregerson concurring: It is troubling that the gov't encourages noncitizens to apply to relief programs and then uses that info against them in removal proceedings.

To fight climate change, Oregon imposes a system of carbon-credit trading for fuels. Plaintiffs: Which discriminates against out-of-state fuels and overrides an EPA rule. The Ninth Circuit (over a dissent): Not so. It's permissible environmental protection, and we've upheld a near-identical system in California. This one's fine too.

Kansas man absconds to Texas with underage girl to (in his words) "stack and lay low." He's caught, convicted of sex trafficking. Man: "Stack and lay low" is a rap lyric that alludes to "frugality, working every day, and living a full life with friends and family." Tenth Circuit: The jury could have reasonably inferred otherwise. (Later in the song, the rapper says, "[T]hey don't question what I say 'cause I'm a ladies['] pimp.") Conviction affirmed.

Family and friends of prison inmates seek class arbitration against company that allows them to transfer money to inmates, alleging exorbitant fees. But should the question of whether they can arbitrate as a class be decided by the court or by an arbitrator? Eleventh Circuit: The arbitration agreement makes clear that the parties consented to all questions being arbitrated, including the question of arbitrability.

After four years fighting in federal court, IJ this week settled a class action lawsuit against Philadelphia over its abusive civil forfeiture practices. The city has agreed to solid procedural reforms and will set up a $3 million compensation fund so that innocent owners, who were never convicted of a crime, will get every dollar back. For over a decade, Philadelphia turned civil forfeiture into a machine, taking more than 1,200 homes, 3,500 vehicles, and $50 million in cash from residents. Working from a "courtroom" at City Hall, prosecutors controlled a forfeiture process that involved no judge and in which defendants weren't entitled to an attorney, even though their most precious property was often on the line. The consent decrees the city has agreed to will keep future prosecutors from ever again using citizens as ATMs. Click here to read more.

[fraggie-doodles19]

WASHINGTON — The Supreme Court on Monday agreed to hear two cases on the limits of the First Amendment’s protection of free speech. One asks whether California may require “crisis pregnancy centers” to provide information about abortion. The other is a challenge to a Minnesota law that forbids wearing political buttons, badges and other insignia at polling places.

The California case, National Institute of Family and Life Advocates v. Becerra, No. 16-1140, concerns a state law that requires centers operated by opponents of abortion to provide women with information about the availability of the procedure. The centers seek to persuade women to choose parenting or adoption.

The state law requires the centers to post notices that free or low-cost abortion, contraception and prenatal care are available to low-income women through public programs, and to provide the phone number for more information.

The centers say the law violates their right to free speech by forcing them to convey messages at odds with their beliefs. The law’s defenders say the notices combat incomplete or misleading information provided by the clinics.

The California Legislature found that the roughly 200 centers in the state used “intentionally deceptive advertising and counseling practices that often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.”

A separate part of the law applied to unlicensed clinics. They are not required to post notices about the availability of abortion, but are required to disclose that they are not licensed by the state.

Last year, a unanimous three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, upheld both parts of the law.

“California has a substantial interest in the health of its citizens, including ensuring that its citizens have access to and adequate information about constitutionally protected medical services like abortion,” Judge Dorothy W. Nelson wrote for the panel in upholding the requirement that licensed clinics post a notice about abortion.

“The notice informs the reader only of the existence of publicly funded family-planning services,” Judge Nelson wrote. “It does not contain any more speech than necessary, nor does it encourage, suggest or imply that women should use those state-funded services.”

Other federal appeals courts have struck down similar laws, saying that the government could find other ways to inform women about their options.

The Ninth Circuit also upheld the requirement that unlicensed clinics disclose that they are unlicensed.

“California has a compelling interest in informing pregnant women when they are using the medical services of a facility that has not satisfied licensing standards set by the state,” Judge Nelson wrote. “And given the Legislature’s findings regarding the existence of” the centers, “which often present misleading information to women about reproductive medical services, California’s interest in presenting accurate information about the licensing status of individual clinics is particularly compelling.”

Next month, the court will hear arguments in another First Amendment case. That one concerns a Colorado baker who contends that being required to create a wedding cake for a same-sex marriage violates his right to free speech.

The Supreme Court on Monday also agreed to decide whether a Minnesota law that bars political buttons and badges at polling places on Election Day is constitutional. Voters affiliated with the Tea Party said the law infringed on their right to free speech.

The case, Minnesota Voters Alliance v. Mansky, No. 16-1435, started when Andrew Cilek was temporarily prevented from voting while wearing a T-shirt that said “Don’t Tread on Me” and bore a Tea Party logo. He also wore a button that said “Please I.D. Me.”

He and others challenged the law on free speech grounds, saying that the government may not bar apparel that merely conveyed a philosophy rather than an endorsement of a particular candidate, party or ballot measure.

The Eighth Circuit, in St. Louis, upheld the law. “Even if Tea Party apparel is not election-related, it is not unreasonable to prohibit it in a polling place,” Judge Duane Benton wrote for a unanimous three-judge panel. “In order to ensure a neutral, influence-free polling place, all political material is banned.”

In 1992, the Supreme Court upheld a Tennessee law that barred soliciting votes and distributing campaign material within 100 feet of polling places.

The challengers in the Minnesota case argued that the state’s law is broader, crossing a constitutional line.

“‘Speech-free zones’ cannot be reconciled with the First Amendment’s free speech clause,” the challengers told the justices in their brief seeking review. “Although this court has permitted campaign-free zones that prohibit campaign materials and active solicitation, it has never endorsed a ban on all political speech.”

State officials responded that “the interior of a polling place is a nonpublic forum in which speech restrictions are constitutional as long as they are reasonable and viewpoint neutral.”