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Will Buade draws attention to an interesting aspect of McCullen v. Coakley–it described the analyses in Holder v. Humanitarian Law Project and McCutcheon in terms of scrutiny, something those cases did not do.

Holder v. HLP did not use the word “Strict scrutiny” or “compelling interest” or “narrowly tailored.” But in describing the case, the McCullen Court did:

It is not unu­sual for the Court to proceed sequentially in applying a constitutional test, even when the preliminary steps turn out not to be dispositive. See, e.g., Bartnicki v. Vopper, 532 U. S. 514, 526–527 (2001); Holder v. Humanitarian Law Project, 561 U. S. 1, 25–28 (2010) (concluding that a law was content based even though it ultimately survived strict scrutiny).

Same for McCutcheon, which declined to speak of a tier of scrutiny. But McCullen labelled it as “intermediate scrutiny.”

The Court does sometimes assume, without deciding, that a law is subject to a less stringent level of scrutiny, as we did earlier this Term in
McCutcheon v. Federal Election Commission, 572 U. S. ___, ___ (2014) (plurality opin­ion) (slip op., at 10). But the distinction between that case and this one seems clear: Applying any standard of review other than intermediate scrutiny in McCutcheon—the standard that was assumed to apply—would have re­quired overruling a precedent.

Will observes:

I confess, I found both of these characterizations a little surprising. I had thought that both McCutcheon and Humanitarian Law Project went out of their way to avoid using terms like “strict scrutiny” and “intermediate scrutiny.” But I guess I was wrong, and the terminology turned out not to be so important after all. (For what it’s worth, all three opinions — McCullen, McCutcheon, and Humanitarian Law Project — were written by the Chief Justice.)

While it is true that all three were written by the Chief, not all three were unanimous.

McCutcheon was 5-4, with the Chief writing for Scalia, Kennedy, Thomas, and Alito. Holder v. HLP was 6-3, with the Chief writing for Stevens, Scalia, Kennedy, Thomas, and Alito. RBG, Breyer, and Sotomayor were in dissent.

Perhaps one of the dissenting Justices from Holder v. HLP (or Justice Kagan), who is more enamored by the tiers of scrutiny and their labels, urged the Chief to modify this characterization of the earlier cases. This may be a simple enough edit for one Justice to request, and to keep the Court unanimous, I would imagine the Chief would gladly oblige.

I’ve argued in a long series of posts, and this article (which is almost done!) that the tiers of scrutiny have fallen out of relevance in recent years in terms of equal protection and due process. Maybe one of those Justices is trying to push back.

No, the Supreme Court was not content to let us begin our summer. It was bad enough they stretched the term all the way to Monday, June 30, the longest the Court has been in session in nearly two decades. And, they left us with a Hobby Lobby decision that left more questions unanswered and settled. Just when I finished reading the 95-page tome in Hobby Lobby, and was about to publish a bunch of stuff, SCOTUS had to go change it all. On July 3, SCOTUS dropped its opinion in Wheaton College v. Burwell. Twitter largely freaked out last night, if nothing else because everyone thought we would get a respite. I’ve now had some time to read Wheaton College, and offer some preliminary thoughts.

The Court granted Wheaton College’s injunction, but the vote was fragmented. Justice Scalia (who is in Ireland on a study-abroad program with the South Texas College of Law) concurred in the result only. Justice Sotomayor dissented, joined by Justices Ginsburg and Kagan.

In a nutshell, I think Justice Sotomayor’s concern is a bit overstated, similar to Justice Ginsburg’s Hobby Lobby dissent. The Court–in a bizarre way–was attempting to maintain the status quo until this issue can be fully resolved.  It was an odd remedy, but it was not in the least deceitful, nor does it undermine the credibility of the Court. Further, this order is almost verbatim of the order the dissenters joined in the Little Sisters of the Poor appeal. If this dissent was not attached, I don’t think anyone would have been quite so panicked. After reading it carefully, I don’t think much has changed.

First, the matter came to the Court on an application for an injunction, brought under the All Writs Act, rather than through certiorari. Wheaton basically argued that filling out the form itself is a violation of their religious liberty.

The Circuit Courts have divided on whether to enjoin the requirement that religious nonprofit organizations use EBSA Form 700. Such division is a traditional ground for certiorari. See S. Ct. Rule 10(a).

As Justice Sotomayor points out, relief under the All Writs Act, rather than certiorari is very, very rare.

Remarkably, the Court uses division among the Circuits as a justification for the issuance of its order, noting that “division is a traditional ground for certiorari.” Supra, at 1. But a petition for writ of certio- rari is not before us. Rather, given the posture of this appli- cation—for an emergency injunction under the All Writs Act—division of authority is reason not to grant relief.  …

The Court grants Wheaton a form of relief as rare as it is extreme: an inter- locutory injunction under the All Writs Act, 28 U. S. C. §1651, blocking the operation of a duly enacted law and regulations, in a case in which the courts below have not yet adjudicated the merits of the applicant’s claims and in which those courts have declined requests for similar injunctive relief. Injunctions of this nature are proper only where “the legal rights at issue are indisputably clear.” Turner Broadcasting System, Inc. v. FCC, 507 U. S. 1301, 1303 (1993) (Rehnquist, C. J., in chambers) (internal quotation marks omitted). Yet the Court today orders this extraordinary relief even though no one could credibly claim Wheaton’s right to relief is indisputably clear.

Yet, the Court granted injunctive relief under a virtually identical posture in the Little Sisters of the Poor case.

Second, without ruling on the merits, the Court held that in the interim, Wheaton College (and presumably all other similarly situated groups) can notify the government, through a letter, that it will not comply with the mandate.

If the applicant informs the Secretary of Health and Human Services in writing that it is a non- profit organization that holds itself out as religious and has religious objections to providing coverage for contra- ceptive services, the respondents are enjoined from enforc- ing against the applicant the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of appellate review. To meet the condition for injunction pending appeal, the applicant need not use the form prescribed by the Gov- ernment, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators. …

But the applicant has already notified the Government— without using EBSA Form 700—that it meets the re- quirements for exemption from the contraceptive coverage requirement on religious grounds. Nothing in this order precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provi- sion of full contraceptive coverage under the Act.

The effect of this opt-out, a Justice Sotomayor notes, is to place a huge administrative burden on HHS to manage this new program.

The Court’s actions in this case create unnecessary costs and layers of bureaucracy, and they ignore a simple truth: The Government must be allowed to handle the basic tasks of public administration in a manner that comports with common sense. It is not the business of this Court to ensnare itself in the Government’s ministerial handling of its affairs in the manner it does here. …

The Court’s approach imposes an unwarranted and unprecedented burden on the Government’s ability to administer an important regulatory scheme. The Execu-tive is tasked with enforcing Congress’ mandate that preventative care be available to citizens at no cost beyond that of insurance. In providing the accommodation for which Wheaton is eligible, the Government has done a salutary thing: exempt religious organizations from a requirement that might otherwise burden them. Wheaton objects, however, to the minimally burdensome paperwork necessary for the Government to administer this ac- commodation. If the Government cannot require or- ganizations to attest to their views by way of a simple self-certification form and notify their third-party admin- istrators of their claimed exemption, how can it ever iden- tify the organizations eligible for the accommodation and perform the administrative tasks necessary to make the accommodation work? The self-certification form is the least intrusive way for the Government to administer the accommodation. All that a religious organization must do is attest to the views that it holds and notify its third- party administrator that it is exempt. The Government rightly accepts that attestation at face value; it does not question whether an organization’s views are sincere. It is not at all clear to me how the Government could adminis- ter the religious nonprofit accommodation if Wheaton were to prevail.

More troubling, once again, the Court has rewritten the Affordable Care Act, and created a new regime.

It is unclear why the Court goes to the lengths it does to rewrite HHS’s regulations. Presumably the Court intends to leave to the agency the task of forwarding whatever notification it receives to the respective insurer or third- party administrator. But the Court does not even require the religious nonprofit to identify its third-party adminis- trator, and it neglects to explain how HHS is to identify that entity. Of course, HHS is aware of Wheaton’s third- party administrator in this case. But what about other cases? Does the Court intend for HHS to rely on the filing of lawsuits by every entity claiming an exemption, such that the identity of the third-party administrator will emerge in the pleadings or in discovery? Is HHS to under- take the daunting—if not impossible—task of creating a database that tracks every employer’s insurer or third- party administrator nationwide? And, putting that aside, why wouldn’t Wheaton’s claim be exactly the same under the Court’s newly-fashioned system? Either way, the end result will be that a third-party administrator will provide contraceptive coverage. Surely the Court and Wheaton are not just objecting to the use of one stamp instead of two in order to avail itself of the accommodation.

The Court has different ideas, however. Stepping into the shoes of HHS, the Court sets out to craft a new admin- istrative regime. Its order grants injunctive relief so long as Wheaton “informs the Secretary of Health and Human Services in writing that it is a non-profit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services.” Supra, at 1. And it goes further—“[t]o meet the condition for injunc- tion pending appeal,” the Court continues, Wheaton “need not use the [self-certification] form prescribed by the Government . . . and need not send copies to health insur- ance issuers or third-party administrators.” Ibid. This Court has no business rewriting administrative regula- tions. Yet, without pause, the Court essentially does just that

This is something of a bizarre posture. As I argued earlier, I’m not persuaded HHS has the power to craft such an exemption, and determine who should and should not bear these burdens as a matter of administrative law. But now, the Court has compounded that ultra vires action, and crafted its own regulatory agenda through its equitable powers.

But, it’s not *unprecedented.* In NFIB, the Court rewrote the Affordable Care Act. Now, states that did not want to participate in the ACA did not have to.

Third, I am having some difficult distinguishing this order, from the order in the Little Sisters of the Poor case. You may recall that on December 31, Justice Sotomayor, acting alone, ordered that HHS was “temporarily enjoined from enforcing against applicants the contraceptive coverage requirements.” Then on January 24, the Court without dissent ordered to keep the injunction in place.

The application for an injunction having been submitted to Justice Sotomayor and by her referred to the Court, the Court orders: If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit. To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators. The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court’s views on the merits.

Now, this is almost *verbatim* to the order issued in the Wheaton College case.

If the applicant informs the Secretary of Health and Human Services in writing that it is a non- profit organization that holds itself out as religious and has religious objections to providing coverage for contra- ceptive services, the respondents are enjoined from enforc- ing against the applicant the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of appellate review. To meet the condition for injunction pending appeal, the applicant need not use the form prescribed by the Gov- ernment, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators.

In a footnote, Justice Sotomayor attempts to distinguish this case from the Little Sisters of the Poor Case.

This case is crucially unlike Little Sisters of the Poor v. Sebelius, 571 U. S. ___ (2014). There, the Court issued a comparable order “based on all the circumstances of the case”—in particular, the fact that the applicants’ third-party administrator was a “church plan” that had no legal obligation or intention to provide contraceptive coverage. See Little Sisters of the Poor v. Sebelius, 2013 WL 6839900, *10–*11, *13 (D Colo., Dec. 27, 2013). As a consequence, whatever the merits of that unusual order [JB: Which Sotomayor herself joined], it did not affect any individual’s access to contraceptive coverage. Not so here. Wheaton’s third-party administrator bears the legal obligation to provide contraceptive coverage only upon receipt of a valid self-certification. See 26 CFR §54.9815–2713A(b)(2) (2013); 29 CFR §2510.3–16(b) (2013). Today’s injunction thus risks depriving hundreds of Wheaton’s employees and students of their legal entitle- ment to contraceptive coverage. In addition, because Wheaton is materially indistinguishable from other nonprofits that object to the Government’s accommodation, the issuance of an injunction in this case will presumably entitle hundreds or thousands of other objectors to the same remedy. The Court has no reason to think that the administrative scheme it foists on the Government today is workable or effective on a national scale. …

The Court’s actions in this case create unnecessary costs and layers of bureaucracy, and they ignore a simple truth: The Government must be allowed to handle the basic tasks of public administration in a manner that comports with common sense. It is not the business of this Court to ensnare itself in the Government’s ministerial handling of its affairs in the manner it does here.

The orders are virtually indistinguishable. Further Justice Sotomayor argues that the Court’s order the “risks depriving” people of contraception. But it won’t do that. Granted, it will probably be more administratively difficult to accomplish this end, but if the Court’s (bizarre) remedy is followed through, there will continue to be access to these products.

Fourth, what I find most troubling about the dissent is the broadside attack on the Court’s institutional credibility. Justice Sotomayor explains that the Court changed its tune from earlier this week:

Even assuming that the accommodation somehow bur- dens Wheaton’s religious exercise, the accommodation is permissible under RFRA because it is the least restrictive means of furthering the Government’s compelling inter- ests in public health and women’s well-being. Indeed, just earlier this week in Burwell v. Hobby Lobby Stores, Inc., ante, at ___, the Court described the accommodation as “a system that seeks to respect the religious liberty of reli- gious nonprofit corporations while ensuring that the em- ployees of these entities have precisely the same access to all [Food and Drug Administration (FDA)]-approved con- traceptives as employees of companies whose owners have no religious objections to providing such coverage.” Ante, at 3. And the Court concluded that the accommodation “constitutes an alternative that achieves all of the Gov- ernment’s aims while providing greater respect for reli- gious liberty.” Ibid. 

That is not a fair characterization of the holding of Hobby Lobby. The Court expressly declined to rule whether the exemption was valid for “all” religious groups.

We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.39 At a minimum, however, it does not impinge on the plain- tiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.40

The principal dissent faults us for being “noncommital” in refusing to decide a case that is not before us here. Post, at 30. The less re- strictive approach we describe accommodates the religious beliefs as- serted in these cases, and that is the only question we are permitted to address.

The Court explicitly did NOT rule on this issue. They were only ruling on the Hobby Lobby Decision. Justice Ginsburg over-read this in Hobby Lobby, and Justice Sotomayor did similarly in Wheaton.

Even worse, Justice Sotomayor charges that the majority was being dishonest, and deceitful.

Those who are bound by our decisions usually believe they can take us at our word. Not so to- day. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contra- ceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, see ante, at 29–30 (GINSBURG, J., dissenting), retreats from that position. That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.

Here, Justice Sotomayor was speaking to a crowd far beyond One First Street. She made similar allegations of disingenuousness in her Schuette dissent. I am purely speculating here, but I can understand why Justice Breyer would not join such an opinion. Anyway, so much for the unanimity on the Court.

Harris v. Quinn, at bottom, represented differing views over the value of unions. Justice Alito seemed to doubt that a union’s ability to operate as a bargaining unit did not depend on collecting fees from non-members.

A union’s status as exclusive bargaining agent and the right to collect an agency fee from non-members are not inextricably linked.

Justice Kagan disagrees, strongly, and counters that a “different source” explains the “majority’s skepticism About Abood.”

Perhaps, though, the majority’s skepticism about Abood comes from a different source: its failure to fully grasp the government’s interest in bargaining with an adequately funded exclusive bargaining representative. One of the ma- jority’s criticisms of Abood, stated still more prominently in Knox, 567 U. S., at ___ (slip op., at 10–11), goes some- thing as follows. Abood (so the majority says) wrongly saw a government’s interest in bargaining with an exclusive representative as “inextricably linked” with a fair-share agreement. Ante, at 31; see ante, at 20. A State, the majority (a bit grudgingly) acknowledges, may well have reasons to bargain with a single agent for all employees; and without a fair-share agreement, that union’s activities will benefit employees who do not pay dues. Yet “[s]uch free-rider arguments,” the majority avers, “are generally insufficient to overcome First Amendment objections.” Ante, at 8–9 (quoting Knox, 567 U. S., at ___ (slip op., at 10–11)). In the majority’s words: “A host of organizations advocate on behalf of the interests of persons falling within an occupational group, and many of these groups are quite successful even though they are dependent on voluntary contributions.” Ante, at 33–34.

Kagan explains that this reasoning is in tension with decades of union-related caselaw:

But Abood and a host of our other opinions have ex- plained and relied on an essential distinction between unions and special-interest organizations generally. See, e.g., Abood, 431 U. S., at 221–222 and n. 15; Communica- tions Workers v. Beck, 487 U. S. 735, 750 (1988); Machin- ists v. Street, 367 U. S. 740, 762 (1961). The law compels unions to represent—and represent fairly—every worker in a bargaining unit, regardless whether they join or contribute to the union. That creates a collective action problem of far greater magnitude than in the typical interest group, because the union cannot give any special advantages to its own backers. In such a circumstance, not just those who oppose but those who favor a union have an economic incentive to withhold dues; only altru- ism or loyalty—as against financial self-interest—can explain their support. Hence arises the legal rule counte- nancing fair-share agreements: It ensures that a union will receive adequate funding, notwithstanding its legally imposed disability—and so that a government wishing to bargain with an exclusive representative will have a via- ble counterpart.

Kagan, with a nod to her favorite hunting partner, quotes Justice Scalia, who happened to vote in themajority:

As is often the case, JUSTICE SCALIA put the point best:

“Where the state imposes upon the union a duty to de- liver services, it may permit the union to demand re- imbursement for them; or, looked at from the other end, where the state creates in the nonmembers a le- gal entitlement from the union, it may compel them to pay the cost. The ‘compelling state interest’ that justi- fies this constitutional rule is not simply elimination of the inequity arising from the fact that some union activity redounds to the benefit of ‘free-riding’ non- members; private speech often furthers the interests of nonspeakers, and that does not alone empower the state to compel the speech to be paid for. What is dis- tinctive, however, about the ‘free riders’ [in unions] … is that … the law requires the union to carry [them]—indeed, requires the union to go out of its way to benefit [them], even at the expense of its other in- terests. . . . [T]he free ridership (if it were left to be that) would be not incidental but calculated, not im- posed by circumstances but mandated by government decree.” Lehnert, 500 U. S., at 556 (opinion concur- ring in judgment in part and dissenting in part).

And, in her closing section:

For many decades, Americans have debated the pros and cons of right-to-work laws and fair-share require- ments. All across the country and continuing to the pre- sent day, citizens have engaged in passionate argument about the issue and have made disparate policy choices. The petitioners in this case asked this Court to end that discussion for the entire public sector, by overruling Abood and thus imposing a right-to-work regime for all govern- ment employees. The good news out of this case is clear: The majority declined that radical request. The Court did not, as the petitioners wanted, deprive every state and local government, in the management of their employees and programs, of the tool that many have thought neces- sary and appropriate to make collective bargaining work. The bad news is just as simple: The majority robbed Illinois of that choice in administering its in-home care program. For some 40 years, Abood has struck a stable balance—consistent with this Court’s general framework for assessing public employees’ First Amendment claims— between those employees’ rights and government entities’ interests in managing their workforces. The majority today misapplies Abood, which properly should control this case. Nothing separates, for purposes of that decision, Illinois’s personal assistants from any other public em- ployees. The balance Abood struck thus should have defeated the petitioners’ demand to invalidate Illinois’s fair-share agreement. I respectfully dissent.

An interesting turn of phrase I’ve seen of late in Supreme Court opinion is some variant of “blinks reality.”

In Harris v. Quinn, Justice Kagan wrote:

But that view of the First Amendment interests at stake blinks decades’ worth of this Court’s precedent.

In McCullen v. Coakley, Justice Scalia wrote:

It blinks reality to say, as the majority does, that a blanket prohibition on the use of streets and sidewalks where speech on only one politically controversial topic is likely to occur—and where that speech can most effectively be communicated—is not content based.

In Fernandez v. California, Justice Ginsburg:

Yet it blinks reality to suppose that Fernandez, by withholding consent, could stop police in their tracks eternally.

I like it.

In stunning remarks from the White House Rose Garden (not standing on the balcony of the executive’s mansion), the President outlined his views on why executive action is appropriate. In short, “I take executive action only when we have a serious problem, a serious issue, and Congress chooses to do nothing.” He will “fix the immigration system on my own, without Congress.”

This is an extremely dangerous position. Whenever the executive identifies a problem, and Congress chooses to do nothing, the President thinks he can make laws. The Supreme Court has made abundantly clear this is unconstitutional. As I explained at some length in this post, executive power is not a “safety valve” Congressional intransigence. Inaction does not give the President  a license. to act. The President decided not to wait to get his nominees confirmed in the Senate. The Supreme Court told him, 9-0, you can’t do that.

As Justice Scalia noted in Noel Canning:

The troublesome need to do so is not a bug to be fixed by this Court, but a calculated feature of the consti­ tutional framework. As we have recognized, while the Constitution’s government-structuring provisions can seem “clumsy” and “inefficient,” they reflect “hard choices . . . consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked.” Chadha, supra, at 959.

Also, the President repeatedly said “everyone agrees” on immigration. This simply isn’t true. It is a divisive issue, and Congress, for better or worse, has decided not to do anything about it now. That doesn’t give the President a license to rule by fiat.

Further, the President scoffed at the idea that members of Congress are opposed to passing a bill because they don’t trust the President to faithfully execute it. His response–they should pass a bill. Well duh. That’s the point. The President will take executive action with or without a bill. Why suffer from the pretense of affording him more power.

This speech should be included as Exhibit A in Boehner’s lawsuit.

Update: More from Boehner:

Obama further asserted that the reason he takes executive actions is due to Congress’ inaction.

“I don’t prefer taking administrative action. I’d rather see permanent fixes to the issue we face. Certainly that’s true on immigration. I’ve made that clear multiple times,” he said.

“I take executive action only when we have a serious problem, a serious issue, and Congress chooses to do nothing,” he stressed. And in this situation, the failure of Republicans to pass a darn bill is bad for our security, it’s bad for our economy, and its bad for our future,” Obama added.

Meanwhile Boehner blamed Obama’s executive orders for the ongoing crisis of unaccompanied minors illegally crossing the southwest border. 

“The president’s own executive orders have led directly to the humanitarian crisis along the southern border, giving false hope to children and their families that if they enter the country illegally they will be allowed to stay,” Boehner said. “The White House claims it will move to return these children to their families in their home countries, yet additional executive action from this president isn’t going to stem the tide of illegal crossings, it’s only going to make them worse.”