Federal Officials Cannot Evade First Amendment Constraints on Speech Suppression Through Intimidation and Collusion with Internet Platforms, or Creation of an Unauthorized Disinformation Governance Board, State Attorney Generals Assert in Suit Against an Array of Federal Officials


Missouri and Louisiana v. Biden, et al.., No. 3:22-cv-01213-TAD-KDM (W.D. La.).  Complaint filed May 5, 2022.

Missouri and Louisiana v. Biden, et al., No. 3 22-cv- 01213 (W.D. La.) Complaint filed May 5, 2022

Missouri and Louisiana Attorney Generals, claiming injury to state constitutional interests and to state citizens’ speech freedoms, have filed a complaint against President Biden and multiple executive officials and federal agency heads, asserting that the Biden administration has colluded with technology platforms such as Facebook, YouTube, and Twitter in order to suppress and censor information unfavorable to federal government aims.  The recent creation of a bureaucratic governing board to manage removal of disfavored speech only advances these unconstitutional practices, the state plaintiffs say.

Plaintiffs seek declaratory relief declaring the administration’s actions violate the First Amendment as well as injunctive relief forbidding further unconstitutional activity.

The First Amendment serves as the cornerstone of the free exchange of ideas of information, without which competent self governance is impossible, the states say.  The federal government is constrained by the First Amendment from interfering with the guaranteed freedoms embodied in the First Amendment, including speech freedoms.  The government cannot escape its obligation to refrain from inhibiting speech by engaging private entities to censor speech.

Although the First Amendment does not ordinarily reach private actors, acts undertaken at the behest of or in collusion with the government may violate the First Amendment.  This is particularly so, the plaintiffs state, where the federal government has coerced private entities to cooperate with the government by means of threats of antitrust proceedings or revocation of immunities enjoyed under Section 230 of the Communications Decency Act of 1996.

Truncating the flow of information to suit federal officials’ aims impairs states in protecting the interests of state citizens, particularly where state constitutions may secure more expansive speech protections that the United States Constitution, plaintiffs claim.

The Complaint filed on May 5 in the United States District Court for the Western District of Louisiana details instances in which, either directly or in collusion with technology platforms, federal officials have acted to suppress speech, serving their own political ends to the injury and detriment of the public, frequently cloaking their actions as attempts to guard against undefined and opaque “disinformation.”

Threats of antitrust actions or threats of loss of immunities have ensured technology companies’ compliance with federal officials’ dictates.   The adoption of facially private governing documents and policies that in fact are employed to serve the government, and which may operate in collusion with the government, cannot be interposed to shield either private or public actors from liability for suppressing and chilling speech.

An atmosphere of intimidation pervades social media sites, plaintiffs observe. Undertaken in fear of or in collusion with federal officials, the private companies’ practices of banning, shadow banning, limiting publication, and outright removal of social media account holders create unconstitutional prior restraints, chilling participation lest a similar fate ensue.

The state plaintiffs’ Complaint provides a chronicle of activity asserted to constitute First Amendment violations. If true, the plaintiffs’ allegations paint a picture of a government intent on serving its ends and not those of the public they were elected or appointed to serve.  Digital media fail to behave as an ‘electronic public square’ where those media represent an unparalleled “concentrated control” of speech.  Complaint, para. 53, citing Knight First Amendment Institute, 141 S. Ct. 1220, 1221 (2021).

Federal officials have conferred with private digital platforms to advise the platforms about content that ought to be flagged for removal, plaintiffs state.

Online platforms accomplish speech monitoring by means such as mechanical algorithms or outright speech suppression by permanent banishment of disfavored speakers, the plaintiffs offer, thereby denying the exiled any ability to communicate publicly.  Such measures not infrequently censor core political speech, to the detriment of political opponents and to the benefit of those directing the private companies’ actions.

Examples of digital platforms’ interference with First Amendment speech guarantees, undertaken to please or to appease federal officials have included suppression of information about location of the President’s son’s laptop, said to contain damaging information, on the eve of the Presidential election.

Plaintiffs aver that open discussion of the origins of the Covid-19 virus was precluded where, by agreement with a social media platform, a federal official who had been engaged in funding gain of function research abroad provided messaging favoring a government narrative which insulated the government and the official from review.

Relevant evidence that would permit public evaluation of the efficacy of face masks and government edicts demanding home confinement was also suppressed, plaintiffs submit.

The promotion of narratives favoring voting by mail, a methodology traditionally dismissed as inviting voter fraud, has also been alleged to involve social media.

Both the Executive and the Legislative branches have threatened technology companies directly and publicly, at times demanding removal of political opponents’ statements.

The recent creation of a board to govern “disinformation” is an Orwellian measure intended to withhold content from the public and to insulate the federal government from criticism, plaintiffs insist.   This has been done notwithstanding that there exists a constitutional guarantee of free speech, such guarantee not to be interfered with by curating and removing from public discourse that which disfavors the government.

Similarly dystopian, plaintiffs observe, is the view that speech is not speech but infrastructure, and thus susceptible of government regulation and oversight.  To this has been added the opinion that the public reacts emotionally and thoughtlessly to speech, and that speech is linked to violence, requiring online policing to protect the public.  One legislator has suggested that the public lacks the capacity to discern fact from fiction, a circumstance not to be addressed by providing more information, but instead, in the view of current federal officials, less information or none at all.

These activities, whether singularly or in combination, violate the First Amendment and severely damage public discourse, the plaintiffs say, causing sufficient danger to open discourse as to merit an injunction against further constitutional violations.

Supreme Court Stays OSHA Emergency Covid-19 Vaccination Regulation


National Federation of Independent Business, et al.  v. Department of Labor, Occupational Health and Safety Administration, No. 21A244

Ohio, et al. v. Department of Labor, Occupational Health and Safety Administration, No. 21A247

Order and Opinion issued January 13, 2022 (S. Ct.)


The United States Supreme Court has issued an order staying the effect of an Occupational Health and Safety Administration (OSHA) Emergency Temporary Standard (ETS) requiring larger employers to adopt policies requiring and administer records concerning employees’ Covid-19 vaccination (the “vaccine mandate”).  OSHA’s regulation requires employers of more than 100 employees to require employees to be vaccinated against Covid-19, or face termination.  Employers may offer weekly testing and continuous masking as an alternative to vaccination at the employees’ expense. 

The vaccine mandate is estimated to affect 84 million workers nationally.  Employers who fail to comply face fines.  

Why the Supreme Court intervened to stay the effect of the OSHA vaccine mandate. Applying established legal standards governing issuance of a stay, the majority of the justices have concluded that the employers and the states challenging the vaccine mandate are likely to prevail on the merits of their claims.

No authority to be found. Nothing in the statute creating OSHA or any measures relating to the Covid-19 pandemic reflects Congressional intent to expand OSHA’s powers to regulate and to administer workplace safety to include public health matters in general, the justices observed.  OSHA’s emergency Covid-19 measure purports to preempt public health concerns traditionally reserved to the states.

This is no small measure. The unprecedented scope of the OSHA emergency regulation, undertaken without notice and comment procedures as an emergency measure excusing compliance, indicates the need for clear congressional authorization of a measure which would exercise powers of vast economic and political significance. Slip opinion (per curiam) at 6, citing Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 6).

OSHA is a  workplace, not a public health, administration. OSHA is authorized to implement measures to address workplace safety, but OSHA has no authority to act as a federal public health agency regulating daily life.

Some room to act may exist notwithstanding the stay.  Vaccination, the majority noted, cannot be undone at the work day’s end.  Although OSHA lacks the vast powers it has attempted to exercise, particular industry working conditions may indicate vaccination would support employee health and safety.  OSHA might develop targeted mandates, but the sweeping mandate before the Court is causally untethered to the workplace, and is without historic precedent that would indicate it to be apt. 

The balance favors the affected employers and employees. Not only is OSHA without authority to regulate vaccination, equity favors a stay, the Court’s majority noted, as billions in unrecoverable compliance costs and fines will be incurred by employers, and many would lose their employment because of the OSHA vaccine mandate.

Three justices concur.  Justices Gorsuch, Thomas and Alito joined in a concurrence outlining the importance of the Constitutional principles governing governance itself as applied to the OSHA vaccine mandate.

Constitutional constraints.  The Constitution cabins legislative powers by requiring any exercise of federal legislative power to be tied to an enumerated Constitutional power, as powers not delegated to the federal government are reserved to the states, as is true of public health regulation. Congress cannot elide its limits by conferring legislative powers on executive agencies.  Thus, when an executive agency undertakes vast new measures, its authority to take such actions must be clear (the “major questions” doctrine) and may not be indirectly assumed (the “nondelegation” doctrine).  

Fie on a burgeoning bureaucracy. These concepts are not mere academic footnotes, the concurrence asserts, but they act as fundamental guards against “government of bureaucracy supplanting government of the people.”  Concurrence Slip Op. at 6, citing Scalia, A. A Note on the Benzene Case, American Enterprise Institute, J. on Govt. & Soc., July–Aug. 1980, p. 27. 

The vaccine mandate is not good by any measure. Application of these principles supports the Court’s stay.  OSHA can locate no clear congressional authorization for its actions, and even if one were believed to exist, the vaccine mandate would violate nondelegation principles, as such authority would confer upon OSHA unlimited discretion without any meaningful specific limits.

Three justices dissent. Justices Breyer, Sotomayor and Kagan have dissented, opining that while examining the powers of coordinate branches, the Supreme Court has overstepped its limits as the majority has failed to recognize and to defer to agency expertise supporting the vaccine regulation, which regulation is of the very sort that OSHA exists to undertake.  

Up OSHA’s alley in any event. Workplace regulation is permissible even if similar hazards exist outside the workplace, and such regulation is apt where, as with the Covid-19 virus, workplace contagion is a recognized hazard which gravely threatens workers’ well-being.

The majority checks others’, but should also check itself. Although the majority focuses on the limits of legislative and executive powers, the majority fails to recognize that while executive agencies cannot act without legislative authorization, the Supreme Court may not read in or impose a limitation on agency action where none exists.  The Court has erred in issuing the stay, as the Court lacks the regulatory expertise that OSHA has.  Similarly, and also erroneously, the Court has incorrectly assessed the public interest served by OSHA’s undertaking measures to hinder the sickness and death the Covid-19 pandemic has precipitated. 

National Federation of Independent Business v. OSHA (01_13_2022)

A Vaccination Compliance Cauldron: Ten States Insist Federal Covid-19 Healthcare Providers’ Mandate Is Constitutionally, Statutorily, and Procedurally Unsound

Missouri, et al. v. Biden, et al., No. 21-cv-01329 (E.D. Mo.). Complaint filed November 20, 2021.


Ten states have joined in challenging the action of the United States Department of Health and Human Services (HHS), Centers for Medicare and Medicaid Services (CMS) in promulgating an Interim Final Rule with Comment Period (IFC) that conditions health care providers’ receipt of federal funding and reimbursement on employee or contractor vaccination against COVID-19.  

Providers and Employees Threatened. Health care providers whose employees fail to comply with the federally mandated demand that all health care workers be vaccinated against Covid-19 may lose federal funding,   As vaccination refusal will threaten employer compliance with the federal measure, unvaccinated employees may lose their jobs.

Exacerbation, Not Mitigation.  The states submit that this sweeping federal incursion on health care administration threatens to exacerbate an already extant crisis in health care provision, which crisis only deepened during the COVID-19 pandemic, forcing states to undertake drastic measures to ameliorate the deadly synergies of two crises which individually would have sufficed to cause health care services to crater. 

          To the extant shortage of workers and threat of harm from viral infection the federal government has added a compliance burden that, the states contend, violates the interests of the states, the healthcare providers and entities within the states, and the healthcare workers who must submit to vaccination or face termination. 

State Standing.  Having brought their complaint in the United States District Court for the Eastern District of Missouri, the states and their attorneys general assert standing premised on exercise of parens patriae powers or statutory authorizations. 

Effective Immediately.  The Interim Final Rule, also called  the CMS vaccine mandate, became effective on publication on publication in the Federal Register on November 5th.  Its protocol demands at least partial vaccination compliance by the first week of December, a deadline that only compounds the problems the rule has caused, the states note.  

          Most significantly, the states argue, the Interim Final Rule is not merely factually detrimental to the provision of health care services, the rule itself and the manner in which the rule was crafted is in violation of central components of the Administrative Procedures Act (APA) and the United States Constitution.

The CMS Vaccine Mandate Makes Matters Worse.  The complaining states assert that the sweeping federal incursion on providers’ rights will exacerbate and extant shortage of workers.  The federal scheme is an unconstitutional abridgment of rights traditionally reserved to the states, and is not only legally flawed but also is, as a practical matter, administratively disastrous, as the health care needs of densely populated urban areas are markedly varied from those of rural settings.  

The CMS vaccine mandate must be set aside.  The states ask that the federal court declare the CMS vaccine rule be declared invalid constitutionally and in violation of the Administrative Procedures Act (APA) and other statutes, and that its enforcement be enjoined.

Not an overnight development.  Healthcare workforce shortages predate the COVID-19 pandemic by decades, the states recount.  Nursing shortages, already critical, have been made all the more so by the demands for urgent and other care precipitated by the pandemic. Many nursing professionals feel they cannot continue to work as they have been.  Many have been attracted to positions offering better working conditions are higher compensation. 

          Staffing shortages threaten the capacity of hospitals to administer care.  To address pandemic care needs, states relaxed standards for the provision of services, permitted workers to work without vaccination, and expanded telehealth services.

          The states are critical of the implementation of the administrative rule per see where doing so represents and Executive Branch about face from federal non-involvement in vaccination to a nationwide push for COVID-19 vaccination compliance that threatens workers with loss of employment and provider entities with loss of available federal funding.   

Reaching beyond providers.  Where health care workers cannot work, providers will be unable to provide services, and the patient public will be denied care.  Each of these outcomes, the states observe, is contrary to sound policies of health care delivery.

A diverse panoply of providers under a single rubric.   There are fifteen categories of Medicare and Medicaid providers, encompassing urban and rural clinics, hospitals, long-term care facilities, and home health agencies. 

          CMS reports that nearly all hospitals within the United States are connected in some measure to Medicare and Medicaid.  Although CMS has recognized the diverse purposes and practices of these categories of providers and suppliers, CMS has embroidered on all covered providers and suppliers the measures applicable to long-term care facilities, the states observe. 

          Moreover, CMS appears to recognize the adverse consequences of the vaccine mandate:  failure to comply will threaten health care workers with loss of employment, which in turn will deepen an already critical worker shortage, which in turn will impact access to care.

No comment.  The states point out that there has never before been a federal vaccination mandate, and that the newly-effective rule is unsound on multiple grounds.  The states notes that CMS abandoned the comment period ordinarily required for rules of the magnitude of the unprecedented healthcare vaccine mandate.  Moreover, CMS has failed to locate with accuracy its authority to promulgate the vaccine mandate.

Unauthorized rule-making. The states argue that there is no statutory authority for the CMS vaccine mandate, and that none of the authorities cited by the CMS as authorizing the mandate do so.  This legally unsupported rule will cause the states great economic harm, particularly as states will not only be threatened with loss of federal resources but the states’ own administrative resources have been conscripted to serve the federal government. 

Hindsight unavailing.  The states submit that the CMS has relied on post-hoc rationalizations to support the rule, an impermissible approach which renders the measure arbitrary, capricious, and not in accordance with law. 

Constitutionally intrusive.  The states argue that compulsory vaccination is traditionally a power reserved to the states.  The federal expansion of power over the states violates the Tenth Amendment, the states submit.

Doctrinally unsound.  The states argue that the CMS vaccine mandate is unsound as it is a measure of national breadth and depth that is not supported by clear Congressional directive, and thus runs afoul of the major questions doctrine.   Similarly, the co of a Congressional articulation of an intelligible guiding principle, the CMS vaccine rule violates principles of non-delegation.

Outside professional bounds.  The states observe that the CMS vaccine mandate is precluded by the Social Security Act, which forbids supervision or control over the practice and provision of medicine and medical services.

Procedurally flawed.  The states submit that the Administrative Procedures Act (APA) is not inaptly named, and that no sound excuse exists for CMS’ failure to adhere to notice and comment procedures which permit interested persons’ participation in administrative processes.  

          CMS not only failed to adhere to these processes but its rule became effective on publication with initial compliance to be completed within thirty days.  Additionally, CMS failed to comply with the sixty-day pre-publication requirement of the Social Security Act.  

Input not sought.  CMS failed to confer with the states concerning the mandate as it is required to do.

Unconstitutional conditions imposed.   The federal government may not impose conditions on funding unrelated to the programs impacted or without notice to the states that vaccination would be required in order to obtain federal funds.  

State resources conscripted.  In enacting measures which threaten providers’ finances through demands on employees, the states observe that is is an infringement on state powers for the federal government to demand that state administrative resources be expended in service of federal aims.

Declaratory and injunctive relief sought: looking forward. The states have requested declaratory and injunctive relief which would nullify the CMS vaccine mandate and prohibit its enforcement.  At this writing the federal court has not issued any orders relating to the case, although in light of the abbreviated time frame for compliance with the CMS vaccine mandate, it is anticipated that there will be activity related to this case soon.  

Missouri, et al. v. Biden, et al., No. 21-cv-01329 (E.D. Mo.) Complaint






As Vaccination Regulation Litigation Erupts, the Fifth Circuit Stays Mandate Pending Expedited Briefing


 

BST Holdings, et al. v. Occupational Safety and Health Administration, United States Department of Labor, No. 21-60845 (5th Cir.). Per curiam order entered November 6, 2021.


 

On Friday, November 5, both the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) and the U.S. Department of Health and Human Services, Center for Medicare and Medicaid Services (CMS) published regulations in the federal register respectively governing mandatory Covid-19 vaccination or testing and masking for employees of certain employers and governing mandatory vaccination within health care providing entities, the failure to comply with which would threaten federal financial support.

The same day, litigation challenging the labor based regulations was filed in four federal circuit courts of appeal. At this time, there are no known proceedings challenging the CMS regulation, although some have promised that litigation will be commenced.

The United States Court of Appeals for the Fifth Circuit, perceiving that the litigation presents “grave” issues of statutory and constitutional law, today stayed the mandate pending expedited briefing, to be completed by Tuesday, November 9.

The challengers in the Fifth Circuit are private employers impacted by the federal vaccine mandate, which governs entities with one hundred or more employees These private entities have been joined by several states.

The challengers argue that the OSHA Emergency Temporary Standard which is proffered as the premise for mandating vaccination does not and cannot support that demand, as the authority of OSHA is limited to workplace hazards and dangers which would place a virus beyond its scope.

Even if it could be seen that regulation might be possible, it would be constitutionally impermissible on these facts, the challengers assert, as the present federal vaccination scheme does not touch upon interstate commerce, as any exercise of such powers in the absence of a defined Congressional standard violates the non-delegation doctrine, and as the power to address questions of public health in the manner envisioned here is reserved to the states for administration under the Tenth Amendment of the United States Constitution. Moreover, the authority of the Department of Labor is constrained to administration of employment and work related matters, and it is beyond the scope of its powers to regulate individual health choices in the guise of imposing an obligation on employers.

Challenges to the new federal measures in other circuits raise additional claims, submitting to the courts that the vaccine mandate offends the First Amendment and the Religious Freedom Restoration Act.

In that there is a limited period of time within which to challenge these regulations, it is likely that these cases will unfold quickly. It is less likely, however, that any of the litigation will ‘skip a grade’ and proceed on an emergency basis to the U.S. Supreme Court. In recent weeks the Supreme Court has on three occasions declined to hear petitions for emergency relief concerning vaccination mandates.

All this unfolds amid multiple challenges in other forums, not the least of which are challenges to regulations extending mandated vaccination beyond federal employees to employees of federal contractors.

The “headline power” of the private employer mandate discussed here ought not obscure the significance of any of the other litigation concerning the sweeping exercise of federal powers premised on a perceived public health emergency in itself has been called into question.

Order of the United States Court of Appeals for the Fifth Circuit:

BST Holdings, et al. v. OSHA, No. 21-60845 (5th Cir.). Per curiam order entered November 6, 2021_

Challenges to the OSHA Emergency Temporary Standard (ETS):

BST Holdings, et al. v. OSHA, No. 21-60845 (5th Cir.) Petitioners Brief November 5, 2021

Commonwealth of Kentucky, et al. v. OSHA (6th Cir.) Petition Filed November 5, 2021

State of Missouri, et al., v. Joseph R. Biden, President of the United States, et al. (8th Cir.) Petition Filed November 5, 2021

State of Florida, et al. v. OSHA (11th Cir.) Petition Filed November 5, 2021

 

An Even More Perfect Union: Committees of Conservative, Progressive and Libertarian Thinkers Try Their Hands at Drafting a U.S. Constitution Consonant with Their Respective Political Philosophies


It is inescapably apparent, all too often painfully so, that there is great discontent within our nation that runs not just to its operations but to its foundations.  So pervasive is this malaise that its presence may soon surpass the status once held by the weather:  everyone complains about it, but no one does anything about it. 

Not so at the National Constitution Center, which recently published three proposed drafts of a new U.S. Constitution, each drawn in accordance with the points of view of three separate committees of noted conservatives, progressives, and libertarians.

The conservatives, not unsurprisingly, are not as irked by the Founders’ handiwork than others, yet they are vehement in urgining the installation of reforms which would temporally limit public office and which would restore to the Senate an obligation to debate the common good.  

The conservative focus is on minimizing opportunities for mischief that ensue when short term gains are advanced at substantial costs to long term stability in service of shared goals.

The progressives focus on their overarching concern with true democracy and equality, with a particular interest in coming to terms with what, in fact and in practice, are rights, which rights ought to be protected, and in what manner.

Libertarians have even less cavil with the original Constitution, thinking initially that the committee would merely review the existing document and add to each Article and Amendment a succinct “we mean it.”  The were not so pleased with themselves, however, as to forsake drafting with an emphasis on curtailing the existence and exercise of federal powers. 

As such efforts go, this project seems a good one, efforts which might serve as starting points for the seemingly ever more elusive civil discussions that are hoped for but too infrequently had.  

The recently published drafts, with commentary, may be found at the links below.

The_Conservative_Constitution

The_Progressive_Constitution

The_Libertarian_Constitution_1

Faith in the Not So Hot Zone: Second Circuit Denies Synagogues and Churches Relief from New York’s Pandemic Measures

Agudath Israel of America, et al. v. Cuomo, No. 20-3572; Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20-3590 (2nd. Cir.)  Stay pending appeal denied on November 9, 2020.

New York has restricted gatherings by size according to perceived geographic intensity of COVID-19 infections.  Religious groups have appealed a federal district court’s denial of injunctive relief that would preclude enforcement of New York’s order.  

Noting first that the Jewish petitioners failed to request a stay pending appeal in the federal district court, the Second Circuit then denied relief from operation of the pandemic measures pending appeal to Jews and Catholics alike

The Second Circuit commenced by stating that strict scrutiny does not apply to neutral and generally applicable laws.  The religious groups have been unable to establish that the pandemic restrictions are not neutral.  The restrictions on gatherings affect religion and secular groups similarly, and are premised on the prevalence of infection.  

The Supreme Court recently denied similar relief, the Second Circuit judges found, and the dissent in the appeal in this case has not persuaded the deciding justices that the standard of “reasonableness” at the time of the issuance of the pandemic orders must be viewed in light of changed circumstances. 

Dissenting Judge Park offered that the deciding judges have ruled based on a skewed perception of the zones.  The zone restrictions are not neutral.  Within zones only religious institutions remain restricted while “essential” operations are not.  

The measures not only specifically single out religious entities for special treatment but they also impose burdens that are substantially heavier than those imposed on other entities, in violation of the Free Exercise Clause.

The overtly different treatment of religious groups with an unmistakably disparate impact on these groups cannot be other than intentional. This is supported by the governor’s threat to close Orthodox Jewish institutions should they refuse to comply.

The dissent rejected the Governor’s argument that only rational basis review is needed as in the Governor’s view religious groups are treated more rather than less favorably than others,

The Governor’s position concedes non-neutrality, the dissenting judge observed. 

In the dissent’s view, the characterization of businesses as ‘essential’ and religious entities as ‘inessential’ facially targets religion.  Strict scrutiny is required as more than incidental burdens are evident.

The recent Supreme Court summary decision concerning California’s pandemic measures is not precedent, the dissent stated, because such orders are precedentail only where decided issues are identical.  The standards for relief in the Second Circuit and the temporal considerations are significantly different. 

New York has maintained the same restrictions since the inception of the pandemic notwithstanding marked reduction of disease.  

Jacobson v. Massachusetts, 197 U.s. 11 (19050 lacks the significance the Governor wishes it had, as Jacodbson was decided before the First Amendment was incorporated against the states and did not concern free exercise.   

Just as Jacobson does not support deference to indefinite exercise of emergency powers, but rather demands consideration of constitutional constraints, the facts of this case show that the absolute limits imposed on religious gatherings are not narrowly tailored.

The zone restrictions are the same — ten persons — for churches that can hold one thousand persons and those that can hold forty persons and the additional identified risks of singing or chanting make assumptions about religious gatherings not applicable to others.

The court has issued its briefing schedule for the merits with hearing to be scheduled as early as December 14, 2020. 

Agudath Isr. of Am. v. Cuomo (2nd Cir. 2020)

He Could Have Been a Contender: Attorney Challenges Delaware Constitutional Requirement that Courts Maintain Balance Between Two Major Political Parties


Carney v. Adams, No. 19-309 (S. Ct.)  Oral argument set for Monday, October 5, 2020 at 10:00 a.m.


The Supreme Court’s new term opens tomorrow, October 5, with oral argument concerning a Delaware attorney’s challenge to state constitutional requirements that judicial appointments for several courts be made with party affiliations in mind, such that courts are balanced, or if not balanced, such that only a ‘bare majority’ of one party holds power.

James Adams wishes to become a judge in Delaware but as an independent is frozen out because of the state’s two-party balancing requirements.   

The state asserts that as sovereign its constitution may provide for equitable apportionment among parties in judicial appointments without being overridden by the federal government.  The state also asserts that the Supreme Court’s decisions in anti-patronage disputes permit the course adopted by Delaware for judges are policy makers whose work necessitates party loyalty, unlike employees who do not make policy and who ought not fear termination because of any political party affiliation.  

The state argues that as a preliminary matter Adams cannot sue because he has not been injured by the Constitutional provisions.  He has not actively sought appointment and he cannot inflict injury upon himself in order to create an interest in challenging the judicial appointment provisions.  

Adams believes that he need not seek appointment with full knowledge that he would be rejected so that he can challenge Delaware’s constitution.  Delaware’s position that sovereignty precludes a challenge to its constitution must fail, Adams argues, because the constitution is depriving him of associational rights guaranteed by the First Amendment.   Moreover, there is little merit to the ‘policy maker’ argument, as the very thing that the anti-patronage cases rejected — loss of employment because of party affiliation — does not depend on whether an employee is high level or low level, but on whether party affiliation caused the harm in issue, his failure to be able to become a judge because he is not a partisan.

Delaware takes pride in having enshrined partisan balancing in its constitution.  Preeminent in the law of corporations, Delaware is invested in establishing and maintaining fairness in judicial appointments so that the credibility and reliability of its judiciary will be perceived to be sound.  Delaware argues that the state constitution serves this end and must be permitted to remain as it is.  

Adams insists that the preclusion from a coveted appointment is hardly the “light burden” on free speech that the state contends that it is, but rather creates an unconstitutional categorical exclusion of independent or third party judicial candidates.. 

Carney v. Adams No. 19-309 Brief of Petitioner John C. Carney, Governor of Delaware

Carney v. Adams, No. 19-309 Brief of Respondent James R. Adams

Carney v. Adams, No. 19-309 Reply Brief of Petitioner John C. Carney, Governor of Delaware



Note regarding oral argument.. As restrictions related to the COVID-19 virus remain in effect, and as the Supreme Court remains closed, argument will be conducted telephonically. Although modified to address public health concerns, guarantees of access to the courts have not been abandoned. Oral arguments will be available by livestream audio through C-Span: https://www.c-span.org/video/?469266-1/carney-v-adams-oral-argument