Mahmoud Khalil's release was a bright moment in a day highlighting the right's power
Trump's National Guard activation remains in effect. Also: The Supreme Court's conservatives keep pushing the law to the right. And: A Law Dork birthday!
On Friday, the reality of this moment in American history was inescapable.
As President Donald Trump pondered whether to begin a war with Iran — illegally, at this point, as Congress has taken no action to authorize such a war — the U.S. Supreme Court’s majority pushed the country further right, issuing decisions advancing its anti-regulatory agenda and backing business interests while making life harder for disabled workers.
At the same time, Justice Department lawyers were in court on both coasts fighting to support and advance Trump’s authoritarian, racist anti-immigrant policies.
The immigration news
After more than three months in immigration custody, Mahmoud Khalil — a recently graduated Columbia University student who the Trump administration targeted for arrest and deportation due to his involvement in Palestinian rights protests — was released from custody on Friday evening. That interim step followed months of hearings in multiple courts before U.S. District Judge Michael Farbiarz ordered the release on Friday afternoon.
The Guardian’s Oliver Laughland was there in Jena, Louisiana, when Khalil was released, telling the world, “Khalil is walking through the gates, lined with razor wire overhead. Leaving the LaSalle ICE processing center where he has been detained for over 3 months.“
In the hours between Farbiarz’s ruling and Khalil’s release, however, the Trump administration both questioned the “authority” of Farbiarz to issue the ruling and appealed his order.
And yet, on Saturday, Khalil was back in New York for the first time since he was arrested in March.
In federal court on the West Coast, though, the Justice Department has found more success.
There, DOJ is defending Trump’s decision to activate the California National Guard in response to protests in Los Angeles — which, in turn, are a response to Trump’s extreme deportation efforts. After the U.S. Court of Appeals for the Ninth Circuit issued an order on June 19 allowing Trump’s activation of the Guard to remain in effect for now, U.S. District Judge Charles Breyer — who initially blocked the activation — cut short a Friday hearing, instead calling for briefing due by Monday addressing what issues the parties believe remain unresolved in light of the Ninth Circuit’s ruling.
While that briefing over whether Breyer retains jurisdiction to address questions about whether the use of the National Guard violates the Posse Comitatus Act and over the duration of the deployment is ongoing, however, the Guard remains deployed as Trump and Defense Secretary Pete Hegseth have authorized and directed.
The news at SCOTUS
The announcement of Friday’s Supreme Court decisions — just two days after the decision upholding Tennessee’s ban on gender-affirming medical care for transgender minors — was a relatively low-key affair, given the cases.
A trio of the six decisions, however, highlighted how hard at work the Republican appointees are, even when cases don’t make the headlines, to change the way our country works.
In a case about the fuel industry’s effort to sue the Environmental Protection Agency over the agency’s prior approval of California’s vehicle emissions standards and electric-vehicle mandate, Justice Brett Kavanaugh held for the court’s conservatives — joined by Justice Elena Kagan — that the fuel producers had standing to challenge the EPA’s approval of the California vehicle standards.
Justice Ketanji Brown Jackson issued a blistering dissent taking aim at Kavanaugh’s decision for the court in Diamond Alternative Energy v. EPA, declaring, “This case gives fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in this Court than ordinary citizens.”
What happened? Jackson suggest that the court had “adjust[ed] standing requirements to let certain litigants challenge the actions of the political branches” while “preclud[ing] suits by others with similar injuries.” The problem with allowing this case to go forward when other similar claims from less powerful plaintiffs were blocked, she continued, is that “[o]ver time, such selectivity begets judicial overreach and erodes public trust in the impartiality of judicial decisionmaking.”
The court, she said, didn’t even need to take the case — for multiple reasons. Ultimately, she wrote, “[T]he Court’s ruling today amounts to little more than error correction in the context of a dispute that all agree will be over soon in any event.“
And yet, the court resurrected the lawsuit. Why?
Of that, she then added, “I worry that the fuel industry’s gain comes at a reputational cost for this Court, which is already viewed by many as being overly sympathetic to corporate interests.”
In the second case, and in what on its face appeared to be a minor case over “unsolicited fax advertisements,” the court’s conservatives extended the reach of last term’s Loper Bright decision ending Chevron deference (courts’ deference to agencies’ reasonable interpretations of ambiguous statutory language). Kavanaugh, in a 6-3 opinion, did so by declaring that the Hobbs Act — a law that explicitly sets forth a pre-enforcement process for challenging certain agency actions — “does not preclude district courts in enforcement proceedings from independently assessing whether an agency’s interpretation of the relevant statute is correct.“
Kagan — the court’s key defender of the administrative state — wrote the dissent for the Democratic appointees in McLaughlin Chiropractic Associates v. McKesson Corp., highlighting how “the Court’s conclusion is wrong, as a matter of ordinary statutory interpretation.” Kavanuagh’s ruling, Kagan argued, “prevents the Hobbs Act from functioning as Congress wanted—by allowing regulated parties to end-run the Act’s pre-enforcement judicial review scheme, and thereby undermine the stability and efficacy of administrative programs.“
The court is “wrong as a matter of text,” “wrong as a matter of history,” and “wrong as a matter of precedent,“ Kagan declared. “Small wonder, then, that every court of appeals to address the question before us has rejected the position the majority takes. There is simply nothing in the law to support today’s result.“
When it comes to her assessment of why the court took this action, Kagan was less direct than Jackson, but — in light of the ongoing g conservative attack on the administrative state — no less clear. “[T]he majority’s misreading frustrates the point of the [Hobbs] Act, which is to prevent collateral attacks, possibly years down the line, on even the most settled administrative frameworks,” Kagan wrote.
Another win for business interests.
Finally, the third case in my trio of illustrative decisions from Friday featured a loss for Karyn Stanley, a firefighter who retired with a disability.
In too many ways, Justice Neil Gorsuch’s opinion for the conservatives, again joined by Kagan, reads like the opposite of Kavanaugh’s decision in Diamond Alternative Energy. Virtually the entire opinion is a strained effort to cut Stanley off from the protections of the Americans with Disabilities Act in the face of a change in a city’s retirement policy that disadvantaged disabled workers.
“[W]e turn, as we must, to the statutory terms Congress has given us,“ Gorsuch insisted, ultimately concluding that the relevant portion of the disability law does not “address[] discrimination against retirees.”
In response, Jackson dissented in Stanley v. City of Sanford, Florida, by noting, “the Court overlooks both the actual facts presented in this case and the clear design of the ADA to render a ruling that plainly counteracts what Congress meant to—and did—accomplish.“
While Gorsuch stated that Stanley’s “complaint says nothing about the timing or nature of her diagnosis, nor does it allege that she worked for any period of time with a disability,” Jackson retorted, “On the facts as alleged in her complaint, the City subjected Lt. Stanley to the discriminatory policy during her employment, not only after she retired.“
The bottom line, Jackson wrote, is that “no one seriously disputes that the Americans with Disabilities Act of 1990 (ADA), prohibits disability discrimination with respect to retirement benefits. Unfortunately, however, by viewing this case through the distorted lens of pure textualism, the Court misperceives those protections today.“
This was a loss for Stanley and the ADA, but it also was — and I hope to have more on this going forward — an opening salvo from Jackson on a new front: an attack on textualism.
In short then, and in the midst of everything else, we saw how the conservatives moved the law — and our lives — to the right on Friday.
Fuel producers get to sue the EPA over a state’s vehicle-related requirements and businesses can challenge regulations decades after they’re in place and outside of the ways in which Congress envisioned those challenges, but a disabled retiree doesn’t get the protections of the ADA.
What’s left from SCOTUS?
Of the 10 cases remaining, I’m focused on most of them. Seven of the 11 key cases that I was most closely watching at the start of the month remain to be decided. They are:
Kennedy v. Braidwood Management — the Affordable Care Act’s preventative care coverage requirements — Law Dork coverage
Trump v. CASA — the nationwide scope of injunctions blocking Trump’s executive order to end birthright citizenship — Law Dork coverage
FCC v. Consumers’ Research — the Federal Communications Commission’s Universal Service Fund and the nondelegation doctrine — SCOTUSblog coverage (Amy Howe)
Free Speech Coalition v. Paxton — age-verification internet regulation and the First Amendment — Law Dork coverage
Louisiana v. Callais — redistricting and equal protection — The Preamble coverage (Leah Litman)1
Mahmoud v. Taylor — religious rights surrounding gender and sexuality discussions in schools — Law Dork coverage
Medina v. Planned Parenthood South Atlantic — “any qualified provider” Medicaid challenge relating to abortion opposition — Law Dork coverage
In addition to those cases, one of the five other cases that I said I was watching because they could be significant depending on their outcome also remain. They are:
Gutierrez v. Saenz — standing and redressability
The final two cases remaining to be decided are Hewitt v. U.S., about the First Step Act, and Riley v. Bondi, addressing immigration case deadlines.
The next Supreme Court decision day is Thursday.
A Law Dork birthday!
Finally, today is Law Dork’s third birthday!
On June 21, 2022, I started Law Dork. “A lot is happening,” I wrote that day, noting:
As the 6-3 conservative — and ever-more-reactionary five-justice majority — Supreme Court nears the end of its term and the January 6 Committee continues its hearings and the far right goes after drag queens (and continues to attack trans people), the coming months could be increasingly complicated at best and dangerous at worst for many people across the country.
I’d say the view from three years on suggests — for better or worse — that I had a pretty good understanding of where the country was at.
More than 650 posts later, today begins the fourth year at Law Dork.
I truly believe that providing coverage of this moment is important, and I am humbled by the time and trust you all give me.
I am unendingly grateful to all of the people who have supported my independent legal journalism with a paid subscription to Law Dork in that time.
Thank you for reading and subscribing and letting me be one of your news sources.
Thank you for being here with your explanations of the courts & their rulings. You are one of the best sources online. I always read what you post because I can count on you to help me understand the truth of what is going on in these troubled times. Thanks again.
Happy birthday!