SCOTUS In Review

By: Colin Jung

1. NYSRPA v. Bruen

New York residents must obtain a permit to carry open or concealed firearms. These permits are granted by a licensing officer. Licensing officers have broad discretion to issue or not issue permits, considering factors such as purpose (hunting, self-defense, etc.), location (Manhattan, upstate New York) and special circumstances. Generally, licenses are denied in urban areas like New York City, and few and far between even in Upstate New York.

The New York State Rifle and Pistol Association, on behalf of two of its members who were denied a permit to carry, sued the state. It claims that under the Second Amendment, individuals have the Constitutional right to carry firearms outside the home for purposes of self-defense. The NYSRPA further claims that New York’s permit system violates this right.

In District of Columbia v. Heller, the Supreme Court affirmed that the second amendment protects the right of individuals to keep firearms in their homes. The Amendment reads: “...the right of the people to keep and bear Arms, shall not be infringed.” Petitioner NYSRPA argues, and Respondent Bruen does not dispute, that the word “bear” in 1789 English meant to “carry,” as in “bear a pistol in a coat.” Both agree that this right extends beyond the home, and that it would be absurd for it not to.

However, the second amendment, when it refers to “the right to bear arms”, refers to a pre-existing right. To the boundaries of the right, as well as how much the State can regulate it, we must look to the history and tradition of Anglo-American law. 

One type of restriction on the right to carry arms tended to be phrased as bans on going armed “offensively” or “to the terror of the people.” Respondent Bruen says that New York’s law prohibiting carry in populous areas falls into this class of restriction, as the act going armed with a firearm in Manhattan would inherently cause a terror to the public. Petitioner NYSRPA says that respondent misunderstand the character of these laws, which Petitioner claims require malo animo, or the intent to cause terror. 

Another type of restriction is the “sensitive place” restriction. Carrying arms in markets or fairs, for example, was forbidden. Respondent Bruen says New York’s law falls under this type of restriction, as any region as densely populated as New York City is inherently a “sensitive place.” Petitioner NYSRPA says these restrictions can only apply to specific places with heightened security interests, such as schools, courthouses, etc. 

The fundamental legal question is:

Is New York’s firearm carry licensing regime, in which applicants are denied licenses to carry if they live in densely populated areas, among other factors, in violation of the Second Amendment’s right to bear arms?

Ultimately, if New York’s law falls into either of the two categories of historically allowed restrictions, it can stand. What parts of it do not fit within the categories must fall.

I find that the restriction does not fall in the first category. Instructive in determining this is Sir John Knight’s Case in 1685. The Statute of Northampton forbade carrying of firearms “to the terror of the people.” Sir John Knight wore two pistols into a church and was arrested. In court, he was acquitted, as it was shown that he had no intent to cause terror. It appears that this case confirms that the first class of restrictions, unlike New York’s, requires malo animo, not just circumstances.

New York’s law does not fit neatly into the second type of restriction, either. Fairs and Markets, in which carry of firearms were often banned, are not analogous to an entire city of millions of people. At the very least, New York must tailor their carry regime accordingly. Restrictions on carrying in certain public spaces would likely be allowed. Restrictions on carrying at a certain time and place, and in a certain manner, are also likely allowed (e.g. New Year’s Eve on Times Square). 

I would rule in favor of NYSRPA. The current licensing regime is in contravention of the Constitutional right to bear arms. There is no historical analogue that would suggest that the degree to which New York restricts that right would have been considered acceptable in the founding era. New York must issue licenses except in exceptional circumstances and allow public carry, either concealed or open, in non-sensitive areas.

2. Ramirez v. Collier

Petitioner John Henry Ramirez is on Texas’s State Death Row. He was set to be executed on September 8, 2021. Respondent Collier is the head of the Texas Department of Criminal Justice. When his agency refused to allow Ramirez’s pastor to physically touch him and audibly pray during his execution, Ramirez sued for injunctive relief. If he receives the relief, his case will be sent back to district court, where his religious liberty interest will be weighed against the State’s security and other interests with regard to allowing Ramirez’s pastor to touch and audibly pray over Ramirez in the execution chamber. 

Three issues are at stake here. In order to qualify for injunctive relief, Ramirez must not have taken any actions that are “inequitable”. Specifically, he must demonstrate that this proceeding is not meant to waste time and delay his execution, as the State claims. Secondly, the Prison Litigation Reform Act requires that he exhaust “such administrative remedies as are available” before taking any legal action. 

In the State of Texas, these remedies take the form of a two-step grievance process, in which the inmate must file a grievance (Step 1), and if the State rejects it, file again (Step 2) and wait for the State’s final decision. Ramirez must show that he properly completed the two-step grievance process before taking legal action. Lastly, Ramirez must show that should he be granted injunctive relief, he has a good chance of success. That is, Ramirez must show that it is likely that his religious liberty claim will likely prevail in the lower court.

The State says that Ramirez’s intent in filing legal action is to delay his execution. Ramirez filed a grievance for his pastor’s presence in the execution chamber on April 11, 240 days after he was able to, and just five months before his execution. Two months later, in June, Ramirez filed a separate grievance for his pastor’s ability to physically touch him and also audibly pray over him, (although it is dubious whether the latter was properly included in the grievance). They cite his untimeliness (filing his grievances much later than he had to) and the piecemeal nature of his complaints (filing grievances one at a time with significant delay in between, so as to maximally delay the execution). 

Ramirez says that both can be explained by the fact that he was not made aware of the State’s policy of banning pastors from physically touching and audibly praying during execution.

Secondly, the State claims that Ramirez did not properly exhaust his administrative remedies. Ramirez filed suit on August 10. The State says that he had filed the grievance that he needed to on July 8, but as the State did not respond to it by August 16, the grievance was still pending and his administrative remedies were not exhausted. The State further says that Ramirez’s grievance, which asked that his pastor “lay hands on [him]’ & pray over [him] while [he is] being executed” does not clearly mention any claim to audible prayer.

Ramirez says that his suit on August 10 was justifiable because of his imminent execution and the lack of knowledge as to when he would receive a response. He says this made the grievance system effectively “unavailable” to him, so the PLRA does not bar him from filing suit. Ramirez also says that the phrase “pray over” clearly indicates audible prayer.

Lastly, the State says that Ramirez is unlikely to succeed in making his case because his religious belief is insincere and the state has compelling interests in rejecting his claims. The State cites Ramirez’s changing requests: Ramirez initially said he only needed his pastor to be present at his execution, explicitly saying that he did not need the pastor to physically touch him. The state further cites Ramirez’s admission to the prison warden that he was only seeing his pastor because he “[had] this thing in the courts.” 

The State also says that Ramirez’s pastor touching and praying audibly could be dangerous, and the state has a compelling interest against it. The State says that the pastor could conceivably interfere with the execution, releasing Ramirez or stopping the flow of lethal drugs. The State says that even if he does not do so deliberately, he could accidentally touch an IV line or block the view of the drug team monitoring his vitals. Audible prayer, furthermore, could interfere with the drug team’s communications or be hijacked as a platform for a political speech, which would irreparably harm the victim’s family.

Ramirez counters that the State is bringing up new evidence that Ramirez had never had an opportunity to respond to. Granting the injunction and letting the lower court decide these issues would be more appropriate. Ramirez further mentions that the State allowed religious advisors to physically touch and audibly pray over prisoners in the past, which suggests it could do so again.

The fundamental legal question is:

Has Petitioner Ramirez acted in an equitable manner, has he exhausted his administrative remedies, and is he likely to prevail on the merits of either of his claims?

If Petitioner Ramirez fails on just one of the three issues, the claim fails. I would rule that he fails on two issues with both claims.

I find that Petitioner acted inequitably and is thus barred from injunctive relief. Ramirez took much longer than he could have conceivably needed, and the splitting up of his complaints is unreasonable. Ramirez’s claims that he was unaware that he needed to file the grievances is untrue, or at the very least, his lack of awareness is unreasonable. 

Ramirez must have known that he was not allowed to make physical contact with the pastor because he explicitly said that he was not seeking it in his first request. He further should have known that no inmates are ever allowed physical touch in the execution chamber. Although he and his attorneys may have been ignorant of the fact that touch was forbidden, his ignorance is unreasonable, and he has a responsibility to clarify.

Vocalization is easier. Ramirez’s claim that he only found that he was not allowed audible prayer when the State informed him via email in August is untrue. The August email exchange was started by Ramirez’s lawyer who said that Ramirez was under the impression that he was not allowed audible prayer, and would like to confirm. This clearly shows that Ramirez and his attorneys were aware of the restriction well in advance.

This is further confirmed by Ramirez’s excuse in his official brief that he delayed filing his grievance because the government had delayed his execution date by a year due to COVID-19. As the state argues, if Ramirez’s claim was legitimately to receive sincere religious accommodation at his execution, the delay in execution would not be a relevant factor. Only if he sought to delay the execution further would the change in date be a factor in his decisions.

This is enough to reject both of his claims, but Ramirez also did not have the right to commence legal action, as the PLRA requires him to exhaust the administrative remedies available to him, which he did not. He “exhausted” the remedies on August 16, when he received the response to his grievance. He filed suit on August 10, before he had done so, making the suit illegitimate. His excuse that his imminent execution required him to act quickly would have merit if it were not for the fact that the delay is of his own creation, (i.e. he filed his grievances late for the purpose of delay).

Furthermore, his vocalization claim is not explicitly mentioned. It is unreasonable to suggest that the State should have understood “pray over” to imply audible prayer. Inmates are expected to write clearly and specifically their grievances. Further, when his Step 1 grievance was rejected by the State, the State made no mention of his request that his pastor “pray over” him. If Ramirez wanted audible prayer, he should at the very least have mentioned this in his Step 2 grievance, which he did not. 

Had he cleared the procedural and equitable requirements, however, it is reasonable to say that he was likely to succeed in the district courts. The remedy he proposed has been done by the State before, and any claims against his religious sincerity are properly made in district court after the injunction is granted.

3. Biden v. Missouri

In June of 2021, the Secretary of Health and Human Services announced a COVID-19 vaccine mandate for all workers in hospitals accepting Medicare/Medicaid funds. As almost every medical facility in America accepts such funds, in effect, this order mandated vaccination for all healthcare workers.

Ten states, led by Missouri, challenged this requirement, saying it exceeded the Secretary’s authority to mandate vaccination for healthcare workers. The states asked for the mandate to be preliminarily enjoined during proceedings. The District Court for the Eastern District of Missouri ruled in their favor and enjoined the mandate in those ten states.

The Federal Government asked the Supreme Court to stay the injunction, and allow the vaccine mandate to be in place while the proceedings took place.

In San Diegans for the Mt. Soledad National War Mem’l v. Paulson, the Court determined three factors that should be considered when a stay is requested.

1. If the case were before the Supreme Court, would the Court likely grant certiorari?

2. If the case were before the Supreme Court, would the Court likely rule in favor of applicants?

3. Does the balance of equities support a stay? In other words, will either side be severely or irreparably harmed in the absence or presence of a stay?

The Federal Government argues that the Supreme Court would certainly grant certiorari if presented with this case due to the existence of a circuit split, as well as the extraordinary national importance of the issue. A circuit split means that different circuit courts reached different conclusions on the issue. The Supreme Court being the only court that can resolve this discrepancy, will often grant certiorari in cases involving circuit splits. 

In this case, the 11th circuit court rejected Florida’s request to stay the same vaccine mandate, conflicting with the district court’s decision. If the case were before the Court, and the 8th circuit ruled in favor of the States and the case reached the Court, there would be a circuit split. The government points to the significant nationwide social, economic and political effects of the mandate as evidence for its extraordinary national importance. The Court is usually more inclined to take such cases.

The States responded by saying that no circuit split exists and that the specific question is not one of extraordinary national importance. Because the 11th circuit’s decision was a denial of the stay, it was non-precedential. That is, a future 11th circuit court could rule differently without consideration of the past case. Because circuit splits are only significant when conflicting precedential decisions exist, the states say the circuit split is not a factor here. Furthermore, the states say the decision whether or not to issue a stay is not of extraordinary significance because it is a procedural question that does not address the merits of the issue.

The Federal Government further argues that it is correct on the merits of the case, thus, the Court would likely rule in their favor. Contrary to the states’ assertions, the Federal Government says that it was not beyond the scope of the Secretary’s power to impose the vaccine mandate. Specifically, the Federal Government says the Secretary’s authority under the Medicare act allows this kind of vaccine mandate. It points to 42 U.S.C. 1302(a) and 1395hh(a)(1), which provide that the Secretary may “make and publish such rules and regulations as may be necessary to the efficient administration of the [Medicare and Medicaid programs]. 

The Medicare act further defines “hospital” for the purposes of the act as, among other things, having to adhere to “such other requirements as the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.” Other terms, including “nursing facility”, “hospice”, “mental health center”, etc. also contain similar provisions in their definitions. The Federal Government says that it is therefore within the statutory authority of the Secretary to refuse to fund and recognize those facilities that do not comply with his vaccine mandate rule as “hospitals” or “nursing facilities” for Medicare/Medicaid purposes.

The States respond that neither 1302 (a) nor 1395hh(a)(1) give the Secretary the power to impose the vaccine mandate because the mandate is not necessary for “the efficient administration of the programs in question.” At the time at which the Medicare Act was passed, the term “administration” referred to “the practical management and direction of [Medicare and Medicaid], as well as their management and conduct.” The States point out that the government does not even try to argue that a vaccine mandate is “necessary” to the “administration” of Medicaid/Medicare, nor could he, as the Medicare/Medicaid programs were “administered” without the mandate. 

Furthermore, the States say that it is an unreasonable reading of a provision defining “hospital” or “nursing facility” in the statute to construe them as allowing for a vaccine mandate rule. Specifically, the States point out that the other parts of the definition of “hospital” include requirements for hospitals to provide medical care, maintain a competent nursing staff, or be licensed in the local region of operation. The States say the phrase “such other requirements”  means that any requirement the Secretary makes in this section must be similar to the other sections of the statute. The States say a vaccine mandate is not “[a] structural requirement on hospitals themselves”, unlike the other sections, which require certain medical services, management systems, etc.

Alternatively, the States say that any ambiguity should be resolved in their favor because Congress must “speak clearly when authorizing an agency to exercise powers of ‘vast economic and political significance.” In this case, the states say Congress would have to have explicitly allowed for vaccine mandates, which it did not.

The Secretary says that the last clause was intentionally written broadly to increase the discretion of the Secretary. Because universal COVID-19 vaccination, in the reasonable opinion of the Secretary, is imperative for the “health and safety” of the individuals who use Medicare/Medicaid, the vaccine mandate rule falls clearly under this statute.

The Secretary further challenges the principle that heightened scrutiny applies in cases of “vast economic and political significance,” citing a lack of precedent for the states’ rule.

The States further argue that the secretary’s rule is arbitrary and capricious, in violation of the APA, which regulates regulations made by executive agencies. The States assert that the Secretary failed to take proper consideration of the medical evidence regarding the consequences of the vaccine mandate and neglected to consider relevant reliance interests. Specifically, the States say the Secretary failed to take into consideration the effect of healthcare worker shortages as a result of the mandate. Further, the States claim that the Secretary's justification of health and safety is pretextual because the administration had previously said a vaccine mandate would not be appropriate. Because no meaningful change in fact has occurred between that statement and the announcement of the rule, the State says the rule is arbitrary capricious and must be struck down.

The Secretary counters that changing facts of the pandemic, including new variants, the colder temperatures, and the heightened risk of dual infection with the flu lead him to implement this rule. The Secretary points out that the arbitrary and capricious standard is a highly deferential one, and only requires some rational connection between the Secretary's actions and the facts on the ground. 

The Secretary lastly argues that the “balance of the equities” favors ruling in his favor because grave and irreversible harm will occur if the injunction is not stayed. Specifically, the secretary warns of the possibility of COVID-19 outbreaks among hospital staff and patients, which could result in increased numbers of deaths.

The States point out that weighing the equities is a last resort to “break ties” in ambiguous cases. Because the states believe the statutory text is clear in this case, they find it improper to consider the balance of the equities. However, the States offer that the balance nevertheless favors them, as large-scale layoffs of unvaccinated medical workers could strain the healthcare system and increase deaths and hospitalizations. 

I would rule in favor of the states. Although I find that the first factor weighs in favor of the secretary; that is, the court is likely to grant certiorari in this case because of its exceptional national significance. The second factor, however, is dispositive to me in this case.

It is clear that the secretary's imposition vaccine mandate is beyond his statutory authority. The secretary does not seriously contest that sections 1302(a) and 1395hh(1) grant him the authority to make this rule. Nor could he; the vaccine mandate cannot be “necessary” for the administration of Medicare or Medicaid if both have been administered in similar conditions without a vaccine mandate. His primary argument that the definitions in the statute grant him this authority is not convincing because the other parts of the definitions provision refer specifically to absolute baseline standards regarding record-keeping, services provided and management. A rule that is clearly not similar to the other rules listed by the definition cannot be justified using the definition. It is clear that a vaccine mandate is not at all similar to rules regarding record-keeping, management, or medical services provided.

Lastly, to what degree the decision is ambiguous, I agree that the states’ position should be favored, as Congress did not “speak clearly” in this matter of “vast economic and political significance.” It is difficult to imagine that Congress intended to allow nationwide healthcare worker vaccine mandates in defining the word “hospital” or “nursing facility”, especially so when we look at the other parts of said definitions.