Ignoring Substance, SCOTUS Permits Lawlessness
. . . and hands Trump dangerous victories.
AS IT CLOSES OUT ITS TERM, the Supreme Court is continuing to find ways to let Donald Trump do whatever he wants without addressing the legality of the conduct in question.
In an opinion announced on Thursday, the Court permitted South Carolina to refuse to provide Medicaid funding to Planned Parenthood without even pretending to address the legality of that conduct under a clearly applicable federal statute. Then, on Friday, the Court issued a decision that allowed the Trump administration to broadly implement its proposal to end automatic birthright citizenship, a right clearly guaranteed by the Constitution. Again, the Court did so without addressing the relevant issue, the constitutionality of the conduct in question.
These decisions, viewed together with the Court’s unexplained decision earlier in the week permitting the government to send noncitizens to countries with which they have absolutely no connection, constitute a clear pattern of the Court erecting artificial procedural barriers to the ability of the public—or anyone else, apparently—to challenge blatantly unlawful government behavior.
In Medina v. Planned Parenthood South Atlantic, the Court permitted South Carolina to cut off Medicaid funding to Planned Parenthood despite the fact that doing so was a violation of federal law. Both the district court and the Fourth Circuit Court of Appeals had found that South Carolina’s conduct in this case was in violation of the federal Medicaid Act, which unambiguously requires states seeking Medicaid funds to ensure that “any individual eligible for medical assistance” may obtain it “from any [provider] qualified to perform the service.”
South Carolina cut off Planned Parenthood’s Medicaid funding not because the individual seeking medical services was not eligible, and not because Planned Parenthood was not “qualified to perform the service,” but because Planned Parenthood, in addition to all of the other medical services it provides, also provides abortions. By any rational interpretation, South Carolina’s conduct was unlawful, since federal law requires the state to provide funding to any eligible individual from any qualified provider. There is no ‘unless you don’t like the politics’ clause.
The Court didn’t even bother to address the elephant in the room, the legality of South Carolina’s conduct. Rather, its rationale for permitting South Carolina to act unlawfully is based on a convoluted and highly artificial semantic house of cards. Even though federal law explicitly requires states receiving Medicaid funds to make those funds available to “any” eligible individual who obtains medical services from “any” provider qualified to perform the services, the statute, according to the Court, doesn’t create a “right.”
Why not? Because the statute doesn’t use the word “right.” The Court is rather less succinct in making the point, but that’s what it boils down to.
Therefore, South Carolina (and presumably any other state) is free to violate the unambiguous terms of a federal statute, and nobody—certainly not either a patient seeking Medicaid assistance or a medical provider such as Planned Parenthood, who has been unlawfully deprived of funding—can challenge the unlawful conduct in court.
THE COURT’S DECISION in the birthright citizenship case, Trump v. CASA, Inc., is similarly unmoored from the legality, or even the constitutionality, of the underlying conduct: the Trump administration’s threat to eliminate the constitutionally guaranteed right of birthright citizenship.
In that case, three different district courts had entered nationwide preliminary injunctions prohibiting the implementation of a Trump executive order announcing a new policy to no longer recognize as U.S. citizens certain individuals who were born in the United States. All three of the district courts found that the executive order violates the Fourteenth Amendment’s Citizenship Clause, as well as the Nationality Act of 1940. Three different federal appellate courts—the First, Fourth, and Ninth Circuit Courts of Appeals—agreed with the district court rulings and denied the Trump administration’s request to stay the injunctions.
Again studiously avoiding any discussion of the underlying issue—that Trump’s executive order violated the plain language of the Citizenship Clause, which states that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside”—the Supreme Court stayed the nationwide aspect of preliminary injunctions, limiting their applicability to the specific named plaintiffs in the three cases. The real-world effect of the ruling is to allow the Trump administration to strip thousands of individuals born in the United States of their citizenship, apparently unless each and every one of them inundates courts across the country with countless lawsuits. While there is some suggestion (both in the main opinion and in concurring opinions from Justices Samuel Alito and Brett Kavanaugh) that a nationwide effect might still be accomplished by using class actions, it’s hard to see under the Court’s reasoning why in practice the Court would permit a nationwide injunction merely because a lawsuit has been restyled as a class action.
Bottom line, the Court’s decision could permit Trump to strip citizenship from hundreds of thousands of American-born children. According to the Migration Policy Institute (MPI) and Penn State’s Population Research Institute, an average of more than a quarter million babies born each year on U.S. soil would start life without U.S. citizenship based on their parents’ legal status.
Once again, the Court chose to sidestep substance. The issue according to Justice Amy Coney Barrett, who wrote the opinion of the Court, was not whether Trump’s order was unconstitutional but whether the federal judiciary could stop him from implementing it on a nationwide basis. Paying only lip service to the proposition that “no one disputes that the Executive has a duty to follow the law,” Justice Barrett skipped by that thorny problem with a judicial ‘never mind’: “The birthright citizenship issue is not before us” (in the birthright citizenship case), she pronounced. Maybe, she avers in a footnote, that issue will present itself some future day. But for now, legal or illegal, constitutional or unconstitutional, there’s just nothing the courts—or apparently anybody else because if not the courts, who?—can do about it, except on a narrow, individual-by-individual basis.
THERE IS NOTHING INHERENTLY WRONG with using the doctrine of standing (that is, whether a case can legitimately be brought before the courts) and balance-of-power analytics to limit what courts can and should do. But when those doctrines are used so frequently to avoid providing remedies to blatant governmental misconduct, and when those decisions have the effect of unleashing the worst fever dreams of Donald Trump—who has already been favored by the Court with absolute immunity from prosecution for crimes committed in office—the independence of the Court necessarily comes into question.
In less polite terms, the stink of political activism is all over this Court.
As Justice Barrett says, maybe someday the Court will be presented with cases that don’t allow it to sidestep the enormously consequential legal and constitutional depredations of the Trump administration. And maybe, if and when that time comes, the justices will show some independence and backbone.
Maybe.
But until then—if it ever happens—the Trump administration will be free to ship people to prisons in El Salvador and dangerous, unstable countries like South Sudan, brutalize law-abiding noncitizens who contribute mightily to their communities and the nation as a whole, deprive women of vital health care, strip American-born children of their citizenship, and God knows what else.
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