True...not necessarily. But the court has increasingly liked to limn the logical limits of any holding that frontally answers the QP. Alito's colloquy with Slaughter's attorney is an example of that.
6e) And would represent the proverbial “gun to the head” for the states that Chief Justice Roberts warned against in his majority opinion in NFIB v Sebelius.
6d) But even if one accepts the facially absurd proposition that clear notice was given as to rule proposed by HHS, it would clearly be coercive of both the hospitals and the states.
6c) Here the Trump administration would be using the same power to limit say New York or Rhode Island’s choices to expand non-discrimination protections beyond the floor set by federal civil rights statutes in an analogous manner.
6b) Justice Alito, in his dissent in Moyle, decried the government’s attempt to use its Spending Clause authority to “limit Idaho’s choices about what conduct to criminalize”,
6) Beyond this, many states have gender identity non-discrimination statutes in place for public accommodations and patient care. Nowhere in the Soc Security Act did Congress clearly reserve the right, or given states notice of its intention, to rollback local non-discrimination statutes.
5d) Here, not only did Congress not make clear its intention to allow CMS, through rulemaking, to ban hospitals from providing whole categories of treatment, in Section 1801 it explicitly disavowed such proscriptive powers.
5c) On the first prong, the Supreme Court in Pennhurst State School & Hospital v. Halderman held that “if Congress intends to impose a condition on a grant of federal money, it must do so unambiguously”.
5b) As part of such a contract, Congress must give states and private parties (e.g. the hospitals) 1) clear notice as to their obligations under the contract and 2) not unduly coerce them into acceptance of such obligations.
5a) Further, because the Medicare and Medicaid amendments were passed pursuant to Congress’ Article I spending clause authority, the Courts treat hospitals and states that participate in these programs as having entered into a contract with CMS.
4) A Trump CoP banning GAC for minors would also arguably violate the Administrative Procedure Acts prohibition against arbitrary and capricious regulation
3c) regardless of whether the “service is covered under the state” Medicaid plan for adults. GAC fits within multiple benefit categories. And every major US healthcare organization has endorsed GAC for minors as a medically necessary standard of care to “ameliorate” gender dysphoria.
3b) This provision requires states that sign on to Medicaid to cover, for beneficiaries under the age of 21, any service that fits within one of the benefit categories and is medically necessary to "correct or ameliorate" a physical or mental health condition “discovered by the screening service”,
3a) Title XIX of the SSA contains within it an Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) provision.
2) Second, Title 18 of the Social Security Act, in its first section (1801), forbids “any Federal officer or employee” from “exercis[ing] any supervision or control over the practice of medicine or the manner in which medical services are provided”. This rule CLEARLY violates that.
Exactly!!
1) from a statutory interpretation standpoint, this rule cannot stand. When you look text that confers to HHS the ability to promulgate CoPs, this rule would violate ejusdem generis and the major questions doctrine (which one could view as a canon of construction). Long thread...
Thanks, Julian! FWIW, since we're being forced to draw a line and anchor it in the Constitution, I completely agree with you. But I'm a congressional maximalist on this question as well. I believe the statutory authority to restrict the Presidential right of removal is plenary and unfettered.
Not so sure about that. I do think you have to reckon with that question (where does Congress's ability to condition removal stop?) as a logical consequence of the argument made by Slaughter. My answer is the same as Julian's: the constitution permits Congress/Pres to do as they please here :)
Ha! I come from a family of lawyers and lawmakers, so I try to keep up :)
In other words, short of saying congress has plenary authority to restrict removal, what’s the most constitutionally principled way to answer Alito's oral argument question of: could congress restrict the presiden’s ability to remove secretary x? What about secretary y?
If one had to draw a line beyond which Congress could not cabin a president’s removal authority, is there constitutional context or structure that best shows us where that line should sit?
Question: looking at the text of Article I, do you see a bright -line restriction on Congress’s ability to require for cause removal should it so choose?
For instance, imagine how an excessively strict non-delegation stance could’ve hampered Treasuries response to the Great Recession.
This is the kind of ”black swan” logic of legal analysis that constrains the other branches in all sorts of predictable and unpredictable ways. Holdings that intentionally zero out the risk of extreme tail events prevent the govt from adequately responding to far more common real world exigencies
2/n Putting aside appointments, his substantive span of control is limited to foreign affairs (e.g. treaty making) and defense (commander in chief clause). These depts, and only these, clearly execute on those powers. @jdmortenson.bsky.social #SupremeCourt
1/n In Slaughter, the Chief brings up this question. From a purely textual standpoint, I'm not sure why the answer isn't simply DOD, Veterans Affairs, State, and maybe Homeland Security. Article 2, Section 2 lays out a short list of the explicit powers conferred on the President.
Proud to March with @mcbride.house.gov in the Hockessin 4th of July Parade.
Was a family affair.
This enables the court to avoid embracing the gov’s arg that universal injunctions can never be issued. And there’s a “how convenient” to this.
You know that right-wing judge who keeps issuing nationwide injunctions re: abortion? Well, he’s interpreting a different statute, the APA. Doesn’t apply.
I’m going to owe my kids
“curse word” money when they read this article. Proud, as always, of Aunt SaSa :)
@mcbride.house.gov
t.co/SILhbs74fp
this piece from @rickhills.bsky.social and @richardprimus.bsky.social is excellent on the big picture background, w concrete case studies from early republic and early 20c repository.law.umich.edu/mlr/vol119/i...
