The Department of Justice over the holiday weekend asked the U.S. Supreme Court to immediately let the U.S. Postal Service enforce its new mail ballot restrictions.
Justice Ketanji Brown Jackson, the circuit justice for the U.S. Court of Appeals for the First Circuit, did not grant that request, instead ordering any responses to be filed by 4 p.m. Wednesday on DOJ’s broader request for a stay of the Friday preliminary injunction blocking key portions of the rule pending appeal.
This sets up what is, essentially, the big question the court and country face going into the fall: Will the Supreme Court’s Republican appointees let President Donald Trump illegally take over elections?
It is a fundamental question and, as election law expert and UCLA School of Law professor Rick Hasen wrote, “an easy case“ for the court to rule against Trump.
Although the court could dive into the merits of the constitutionality of the USPS rule, Hasen proposed the “easier path” to rejecting DOJ’s request “relates to the relative harm to the parties“ — other aspects of deciding stay requests.
He continued:
Here, the equities are absolutely with the states and their counties and not with the federal government. It’s not close and it should not be close to the Supreme Court justices.
I have never in over thirty years of teaching and studying election cases ever seen an attempt like this one to roll out a major change in election administration against the will of state and local election officials on a time frame that is certain to impede on states’ ability to run elections and that will certainly disenfranchise thousands if not millions of voters who will not get ballots if the USPS rule is put into effect for this election. Those voters include those who are elderly, in rural communities, with certain disabilities, traveling in the military (within the U.S) or for other reasons. This is not a rollout that hurts Democrats and helps Republicans; it’s a rule that threatens mass disenfranchisement of voters across the political spectrum and in red and blue states.
This is that serious.
As I noted on Friday, moreover, the election — specifically as it relates to the USPS rule — has begun. North Carolina already sent out mail ballots.
As Solicitor General John Sauer wrote to the Supreme Court on Sunday:
Ballots have already begun to be mailed in North Carolina, and more States will begin the mailing process as the injunction remains in place—including Alabama on September 9 and at least five States the week of September 13. Once those ballot envelopes enter the mailstream, there is no retrieving them.
That’s an odd argument to make, in my view, because it really does reinforce Hasen’s point about the incredibly horrifying situation the Trump administration is seeking to impose upon states — aside even from the unconstitutionality and illegality of the action.
The Supreme Court’s Republican majority, however, has certainly had no problem imposing horrifying circumstances on people even where the legality of the action is in serious doubt.
Because of this, despite the ease with which Hasen sees multiple paths for denying the Trump administration’s stay request, it is by no means a done deal — and an unfortunate number of parties (and lawyers) will be urging the court to go along with the Trump administration here.
There will also, though, be many parties (and lawyers) urging the court to take one or more of the many paths open to the justices to deny the stay request.
Despite the rapid progression of this matter on the shadow docket, the justices’ decision will be a pivotal moment for them — and for the future of our democracy.
Less than two weeks after the U.S. Court of Appeals for the Second Circuit denied the Justice Department’s request for a stay pending appeal of the injunction protecting the medical records of transgender minors who received care in New York City, one of the main medical systems in New York City — Mount Sinai Health System — reached a settlement agreement with DOJ.
Although there had been reports that Mount Sinai had discontinued gender-affirming medical care for minors months before the agreement was reached, DOJ announced that, “[u]nder the agreement, Mount Sinai, one of the largest health care providers in the state of New York, will cease providing these interventions to minors, including by administering puberty blockers and cross-sex hormones and performing surgical procedures.”
There are significant, and potential legal, differences between voluntarily pausing a program and agreeing to end it as part of a legal settlement.
In a statement, Mount Sinai acknowledged the agreement was a “settlement,” although the statement did not provide specifics — instead calling it “complex” and leaving it at that.
DOJ, however, provided the two specifics: Ending the care and “pay[ing] a monetary penalty and dedicat[ing] $2 million to providing free medical care to individuals suffering harmful consequences of ‘gender affirming care’ they received as children.“
Mount Sinai is not the first blue-state hospital to reach a similar agreement with the Trump administration: Connecticut Children’s Medical Center reached an agreement with DOJ in early August. Before that, Texas Children’s Hospital reached agreements with Texas Attorney General Ken Paxton’s office and with DOJ and the Cleveland Clinic reached an agreement with then-Ohio Attorney General Dave Yost’s office and DOJ.
Mount Sinai, however, does appear to be the first hospital to do so when the patient records at issue were protected from disclosure by court order.
Mount Sinai referenced the grand jury subpoena that it (and others) had received out of the Northern District of Texas, insisting, “We entered into a settlement with the U.S. Department of Justice and the U.S. Department of Health and Human Services so that Mount Sinai will not be compelled to produce these highly sensitive patient records to the grand jury.“
Of course, the health provider did not need to do so currently under the court order in New York.
Mount Sinai’s statement ignored that altogether in attempting to justify the settlement:
The settlement is complex, but at its core reflects Mount Sinai’s commitment to safeguarding our patients’ confidential information and protecting our clinicians. The matter is ongoing in Texas, likely to end up in the United States Supreme Court, and likely would have required that we disclose our patient records.
The concerns raised about the settlement, beyond the principle itself, are not only that Mount Sinai folded despite the court protections it has currently.
Democratic congressional candidate Brad Lander — who had previously been comptroller of New York City — suggested on Sunday that the settlement also violates “their own Hippocratic oath … and New York’s human rights laws.“
For those who don’t know what this is, it’s my effort to give a little thank you to paid subscribers. “Closing my tabs” is, literally, me looking through the stories and cases open — the tabs open — on my computer and sharing with you all some of those I was unable to cover during the week but that I nonetheless want to let you know that I have on my radar. Oftentimes, they are issues that will eventually find their way back into the newsletter as a case discussed moves forward or something new happens that provides me with a reason to cover the story more in depth.
This Labor Day, these are the tabs that I am closing: