In a turning point in national history, the U.S. Supreme Court 2021-22 term ended with a cascade of seminal decisions. The 6-3 conservative supermajority ruled on gun rights, religion, immigration, environmental law, abortion, and criminal procedural rights among other constitutional questions. While the effect of some of these cases have immediately permeated public policy, such as with state gun regulations and abortion laws, the broader implications of the Court’s turn to constitutional originalism and the overturning of long-standing precedent will continue to have far-reaching effects on future governance. A brief summary of some of the most notable decisions of the last few weeks are below.
Biden v Texas, ___ US ___, 142 S Ct 2528 (2022)
The Biden administration’s October 2021 memorandum rescinding the Migrant Protection Protocols (MPP), the former administration’s policy requiring asylum seekers to remain in Mexico pending an immigration hearing, was lawful under 8 USC 1225 of the Immigration and Nationality Act (INA) and the Administrative Procedure Act (APA). On release of the memorandum, Texas and Missouri challenged the rescission and a Texas district court reinstated the MPP, pending congressional action or increased capacity in immigration detention facilities. The district court lacked the authority to reinstate the MPP under 8 USC 1252(f)(1) and the Biden administration’s memorandum terminating the MPP was a lawful exercise of its discretion pursuant to 8 USC 1225(b)(2)(c) of the INA.
West Virginia v Environmental Protection Agency, ___ US ___, 142 S Ct 2587 (2022)
Section 111(d) of the Clean Air Act, 42 USC 7411(d), does not authorize the Environmental Protection Agency to devise emission caps for existing power plants based on the generation shifting approach, which was adopted by the Obama administration through the Clean Power Plan (CPP) and moved toward renewable energy sources. The CPP violated the major-questions doctrine, which asserts that decisions of immense economic and political significance must be expressly stated by Congress. The CPP wrongfully relied on 42 USC 7411 to exercise broad, unprecedented authority, which was not clearly authorized by Congress.
Kennedy v Bremerton Sch Dist, ___ US ___, 142 S Ct 2407 (2022)
A public school football coach’s practice of kneeling in prayer at midfield after each game constituted protected conduct under the First Amendment Free Exercise and Free Speech Clauses. The school district’s prohibition of the prayers specifically targeted the coach’s religious practice in violation of the Free Exercise Clause. The prayers were not considered part of the coach’s job duties and, therefore, are protected by the Free Speech Clause. The school district would not be in violation of the Establishment Clause for allowing the prayers to occur as they were held at the conclusion of the game and there was no indication that students were coerced into participation.
Dobbs v Jackson Women’s Health Org, ___ US ___, 142 S Ct 2228 (2022)
A Mississippi law banning abortions after 15 weeks of pregnancy is not unconstitutional. The right to an abortion is not expressly granted by the Constitution or reflected in the nation’s history or tradition. There is no support by other precedents to frame abortion as a broader entrenched right. The controlling opinions set by Roe v Wade, 410 US 113 (1973), and Planned Parenthood of SE Pennsylvania v Casey, 505 US 833 (1992), which established and reaffirmed the constitutional right to an abortion, were founded on unreasonable and arbitrary bases. Roe and Casey are overturned. The question of the right to an abortion is returned to the states.
New York State Rifle & Pistol Ass’n, Inc v Bruen, ___ US ___, 142 S Ct 2111 (2022)
A New York law requiring applicants to establish a special need for self-protection to carry a handgun in public violated the Second and the Fourteenth Amendments. Where the plain text of the Second Amendment protects a particular right, the government must demonstrate that its actions are in line with the original scope of that right. The Second Amendment inherently covers the right to carry a handgun in public for self-defense purposes. Historical restrictions on carrying guns in public do not fall within the purpose of New York’s law that intended to regulate guns in crowded cities. The restriction unreasonably infringes on the protected Second Amendment right to bear arms.
Egbert v Boule, ___ US ___, 142 S Ct 1793 (2022)
A U.S. border patrol agent’s alleged Fourth Amendment excessive-force and First Amendment unlawful retaliation violations did not constitute a cause of action for damages under Bivens v Six Unknown Named Agents of Fed Bureau of Narcotics, 403 US 388 (1971). Bivens, which allows for damages when federal agents violate the Fourth Amendment, does not apply when there are potential national security implications, such as actions on behalf of the U.S. Border Patrol. Congress is better situated to create a damages remedy in their policy-making role for border protection. Therefore, the court cannot facilitate a cause of action for damages as a result of U.S. Border Patrol violations of the Fourth or First amendments.
Shinn v Ramirez, ___ US ___ , 142 S Ct 1718 (2022)
28 USC 2254(e)(2) of the Antiterrorism and Effective Death Penalty Act (AEDPA) precludes federal courts from holding an evidentiary hearing when habeas petitioners failed to first develop a factual basis of the claim in state court. Despite the exception in Martinez v Ryan, 566 US 1 (2012), which allows such a hearing if a claim of ineffective assistance of counsel is brought for the first time in postconviction proceedings, the AEDPA overrides Martinez. The application of Martinez is narrowed to claims involving new constitutional law made retroactively applicable or claims involving a factual predicate not discoverable through due diligence.
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