We recap some shadow docket happenings and catch up on the latest SCOTUS ethics news before continuing our march through June opinions we missed. This time, we dive back into Indian law in Arizona v. Navajo Nation and try to make sense of private causes of action and the so-called Spending Clause in Health and Hospital Corporation of Marion County v. Talevski. Along the way, Will reveals his closet cartographical interests.
We recap some shadow docket happenings and catch up on the latest SCOTUS ethics news before continuing our march through June opinions we missed. This time, we dive back into Indian law in Arizona v. Navajo Nation and try to make sense of private causes of action and the so-called Spending Clause in Health and Hospital Corporation of Marion County v. Talevski. Along the way, Will reveals his closet cartographical interests.
[Divided Argument theme]
Will: Welcome to Divided Argument. An unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. So, Will, we're back a month after-- sorry, a week after our last episode, so we're keeping up a pretty good pace. We're slowed down a little bit from the breakneck pace that we were doing coming out of our vacations.
Will: We were starting to run out of opinions. That's a good thing.
Dan: Yeah. So, we're back. You're going on vacation soon, so things will slow down further for a while. But we've gotten through most of the big cases, I think. And so, for this episode, we were sort of trying to figure out what to do. There were fewer obvious ones, and I had a couple of ideas, and you had a couple of ones that you wanted to talk about. So, we compromised by talking about the ones you want to talk about. We're going to do that in a minute. Before we do that, not a ton of news, but maybe a couple things worth talking about.
Will: What do you got?
Dan: Well, in terms of stuff that the court did, substantive stuff, there is a very short order in a case called City of Tulsa v. Hooper. And this is more fallout from the court's recent cases involving the status of the Indian reservation in Oklahoma, most recently the Oklahoma v. Castro-Huerta case. I guess that issue in this case is whether the City of Tulsa can enforce its municipal laws on Indians. And there's some dispute under the Curtis Act of 1898, an act I don't know a lot about, but maybe you do, about whether a city is allowed to do that. And the 10th Circuit said that they're not allowed to do that. And they came up and sought a stay from the court, and the court denied it. Did you figure this out? I don't totally know what the implications of that are.
Will: I think it's too soon to tell because-- it was Justice Gorsuch, who sort of took his time with the application, and then we eventually get this statement of Justice Kavanaugh, joined by Justice Alito, respecting the denial of the application for stay. And you always know these statements respecting the denial are going to be ambiguous attempts to spin whatever's going on. Is it concurring the denial? Is it dissenting from the denial? Is it just about the denial? Maybe Cavanaugh and Alito were on opposite sides of whether to grant the stay. Who knows?
As they describe it, and I think this is accurate, first of all, the 10th Circuit has not fully decided whether Tulsa can enforce its traffic laws. It has rejected on an interlocutory appeal, one argument for why Texas might be able to enforce its laws, namely this specific statutory argument about Oklahoma. Back in McGirt, there are a bunch of specific arguments because Congress acted repeatedly during the sort of pre-stated and stated process in Oklahoma. So, there are some specific arguments about federal law interacting with Oklahoma. But according to the statement, the Court of Appeals has declined for now to reach an additional argument raised by the state of Oklahoma as amicus curiae that the city may exercise jurisdiction under our opinion in Oklahoma v. Castro-Huerta. This was the opinion that sort of clawed back a lot of the practical consequences of McGirt but on sort of state sovereignty grounds. And so, I think the extent to which that logic is going to apply to not state criminal prosecution but municipal civil violations is going to be complicated in the future.
And then, additionally, Justice Kavanaugh says, and I think this is a little weird that nothing in the decision of the Court of Appeals stops the city from continuing to enforce its laws. What the City of Tulsa wanted stayed was the mandate. It's not like there was a preliminary injunction they were trying to have stayed.
Will: So technically, that seems right. They could say, "Okay, the 10th Circuit has ruled that we can't enforce our laws, but they haven't actually ordered us to stop, so we're going to keep doing it." And given that there are other arguments on the table, that's not crazy. But if you're the general counsel of the City of Tulsa, I assume you're not totally--
Dan: Yeah, not clear you want to go full steam ahead.
Will: I mean, I took two observations about this. One is, I think people occasionally like to joke that the Supreme Court is not like the traffic court. It's not the place you go if you have a complaint about your parking tickets or whatever. But maybe in Tulsa it is. The way they describe the question is, many Indians in Tulsa violate the city's traffic safety laws that are enforceable by the city.
Dan: Kind of stacking the deck for Justice Kavanaugh to describe it that way.
Will: I guess--
Dan: Maybe violate.
Will: That's true. I guess if the laws don't apply to them, then it's more like diplomats in New York or something would say. They're not violating the law. They're just entitled to drive around however they want to. Fair enough. I take it this is also the reason for this application, is as a sort of testing of the waters for possible cert for the future of this litigation. And I take it that Justice Kavanaugh and Justice Alito signified, there are at least two interested parties. Now, two is not enough, but it's better than most people start with.
Dan: Yeah. Okay. We'll see what happens with that down the road. I guess this will be back in the district court, could go back up to the 10th Circuit. Other stuff could happen. Could get back up to the court, a shadow docket. We will see. There was another shadow docket opinion, an opinion related to an order. There's three separate sections. You have to look for stuff on the court's website. You have to look at the order section, you have to look at the opinion section, and there's a separate section which is opinions related to orders. And this is a case called Johnson v. Vandergriff. It's a capital case coming up through habeas. And you have an opinion by Justice Sotomayor dissenting from a decision of the court not to grant a stay of execution. And her opinion, which is joined by the two liberals, argues that the capital defendant there should not have been executed because he could make a showing that he was not sane, but the court did not find that persuasive.
Will: Yeah. There's this whole area of doctrine, I guess, that goes back to a case called Ford v. Wainwright about executing the insane, but I think was really expanded by Justice Kennedy in a case called Panetti v. Quarterman, 2007. So, I think you think of this as a Panetti claim. And I wonder if this is one of those many doctrines that's going to be left on the vine to shrivel now that Justice Kennedy is gone. Whether part of what is going on is maybe the majority just doesn't actually care that much about this doctrine, and they're not going to take any steps to overrule it. But they're not excited about it either. [crosstalk]
Dan: Yeah, this one is sort of fact bound. And here, the issue was whether the 8th Circuit erred by refusing to grant relief in this AEDPA posture, the Antiterrorism and Effective Death Penalty Act, which limits the ability of federal courts to grant habeas relief unless the state court decision was really unreasonable. And so, question whether you could have a case that came up and there's no dispute factually about whether the capital prisoner is insane. Would the court still just say, "Fine, do whatever you want"? Or would they maybe stick to the core of that earlier case?
Will: Yeah, well, there's also these weird sort of standards of review because AEDPA requires the 8th Circuit to apply a really deferential standard of review. But I think the problem here is that the 8th Circuit has not even granted a certificate of appealability which is a really deferential standard of review. A certificate of appealability you're supposed to grant, not if the person is right-
Dan: Yes.
Will: -but if fair-minded jurists could debate whether your claim is meritorious. So, Justice Sotomayor just made the point that several 8th Circuit judges dissenting from the [unintelligible [00:08:19], and now three Supreme Court Justices all think this claim is plausible. So, shouldn't that be enough by definition?
Dan: Apparently not.
Will: Yeah.
Dan: By refusing to issue the stay, six of the Justices think three of their colleagues are not fair minded.
Will: [chuckles] I wrote a paper about this with Ryan Doerfler that was sort of responding to a paper by Eric Posner, Andrew Mule, about the same problem of, when does it ever make sense for a judge to say, "Yes, four of my colleagues think the statute means X, but we think that it unambiguously means Y," in Chevron or here.
Dan: And your answer, as I recall, was, it makes sense to look at that if the other judges are conservatives, but not if they're squishy libs. Right? Am I misremembering?
Will: Describing its thesis asymmetrically, and since Ryan is not only not a conservative but an unsquishy leftist, maybe that's the wrong inference. But yeah, our theory was if the judges who disagree with you have such a different judicial philosophy that the fact that they disagree is not really evidence that it's unclear for you, then you should sort of ignore them. So, if six of the Justices think that Panetti claims are not really a thing or have a very different attitude towards what you need to show these claims, or maybe a very different attitude towards AEDPA, then the fact that Sotomayor, Jackson, or Kagan think the matter is debatable doesn't necessarily mean it's debatable. But if Justice Thomas had said, "Look, I think this is a pretty strong claim," then the members of the majority should have said, "Okay, that's enough reason for us to grant a COA."
It's awkward if you label it that way because then it does sound like we're saying that originalists can't think non-originals are fair minded and non-originalists can't think originals are fair minded. So, I maybe wouldn't have phrased the statute quite that way.
Dan: Well, maybe your thesis shouldn't apply to this particular situation, [crosstalk] given fair-minded jurist should encompass all jurists, right?
Will: Maybe. But I do think--
Dan: Some of which will have different interpretive methods.
Will: Instead of having the fair-minded jurist standard, you could have a rule that any judge in the Court of Appeals can grant the COA.
Dan: Yeah.
Will: And I think our standard is supposed to be something slightly different than that. Maybe not. Maybe it really is any Justice can grant it but same thing at the Supreme Court obviously. It's not just like any Justice can sum rev the denial of a COA.
Dan: This question about other judges interpretive methods did call to mind something that I should have put on our preshow plan, just to mention was--[crosstalk]
Will: That we have a preshow plan?
Dan: Not really. But we have a 30-second conversation in advance about what we're going to talk about, which is Justice Alito's interview with The Wall Street Journal, where he said a lot of things. One, the thing that got the most attention was his pretty bold assertion that Congress has no power to regulate the court and impose ethics rules on the court, which I think is controversial and quite debatable. But he said some other stuff. And one of the things that he said that got a little bit scrutiny was he sort of really emphasized with the conservatives, we have this big difference in method, we disagree in all these cases. And he says, "On the liberal side of the court, I don't see that there's a difference interpretive method." Basically, saying as far as I can tell--
Will: They're all the same.
Dan: They're all the same, and maybe they're all hacks. He's not saying that. He's not not saying that though.
Will: He didn't say that at all.
Dan: He didn't say that. But the way he frames it, he says, "Well, look at all these conservatives. They reach different results in various cases," which is also true of the liberal Justices. They're certainly not on the same side in every case. Justice Kagan and Justice Sotomayor disagree a certain amount. So, I don't know. I think that it's easy to say the people that you disagree with all have the same hack-ish method. I know he was not saying that, but I know some version of that is what a lot of your friends think.
Will: Is it hack-ish to think, or is it-- what about the 3-3-3 court thesis? That we don't have a 6-3 court, we have a 3-3-3 court. Do you disagree with that?
Dan: I think that I want to see a little bit more data from the two of the three, with Justice Barrett and Kavanaugh. Still pretty early in their tenures. I certainly think we have clusterings. I think that can be a misleading way to phrase it because two of the sets of three are like way far over and so that the balance of-- it suggests a certain centrism of the court, which I don't think is quite accurate relative to--
Will: Point is, Justice Alito's point might just be like nobody ever says, "Oh, actually it's a 3-3-2-1 court because of the important divide in Justice Jackson and Justice Sotomayor and Kagan."
Dan: Yeah. [crosstalk] -think talking about a difference in method, not a difference in just political ideology on a Martin-Quinn scale.
Will: Yeah, but I think part of his point is that there are these systematic places where Chief Justice Roberts has these different views about the court as an institution that lead him to systematically rule differently and on stare decisis on separation of powers cases, like he's trying to line them up now. I think we talked about this earlier. I think regardless, you can't tell that much about it because there may well be a bunch of cases where if Elena Kagan was the swing vote, we would see her split from other Democratic appointees. Right now, nobody looks to those cases or brings those cases because that's not the most marginal vote to get in most cases. So, I don't think we learn that much. Similarly, I think we've probably seen more disagreement between Justice Alito and Chief Justice Roberts now that they're closer to the middle than we did in 2008. But I don't think it's because either of them changed. I think it's just because the cases changed.
Dan: Yeah. And then, the stuff about whether Congress can impose an ethics reform, interesting, I certainly don't think his position is obviously correct. It might call into question some other things. Does that mean that by that logic, is the Presidential Records Act unconstitutional because it attempts Congress's attempt to regulate a different branch? He sort of seems to have the position that because the Supreme Court is mentioned in the Constitution, Congress just can't regulate it at all. Some people have said, "Well, what about Article III that at least says Congress can impose regulations?" Maybe it just means regulate jurisdiction. A lot of hard questions there, but I do think he has been fairly criticized for opining on that when it is something that could come up in terms of a case.
Will: You think fairly criticized?
Dan: I'd say not unfairly. You think unfairly?
Will: No. I mean, look, I'm sympathetic to the view that the Justices shouldn't just opine about pending legislation.
Dan: [chuckles] I'm glad you're willing to concede that. It's big of you.
Will: But I take it we think once Justice Alito said it, then it's okay for people to respond. Like, if Justice Kagan then opines, actually, I think they can.
Dan: But this literally happened. Justice Kagan said, "I don't want to opine on that because it could come before us."
Will: But didn't she also say that she disagreed?
Dan: I thought she was a little bit more circumspect than that.
Will: I thought she said, "Well, obviously the limits to what they can do, but they can do something."
Dan: Let me see.
Will: I mean, Justice Alito's position is sufficiently absolutist but if you take a nuanced position, then you're disagreeing with him.
Dan: She said, "It won't be a surprise to know that the nine of us have a diversity about this and most things. We're nine free-thinking individuals."
Will: Is that all she said?
Dan: I'm just reading the Washington Post, I don't know if I have a transcript in front of me, saying, "She wasn't certain what had been asked, but in context, his response couldn't have been as sweeping as his critics supposed." So, she tried to reframe what he said, so I don't know. She also did reveal that there is disagreement on the court about how and whether it should proceed with its own ethics rules, which is interesting.
Will: Yeah. "Of course, Congress can regulate various aspects of what the Supreme Court does," Kagan said. Congress funds the Supreme Court. Congress historically has made changes to the court's structure and composition. Congress has made changes to the courts appellate jurisdiction.
Dan: Yeah, those are just historical facts.
Will: Yeah. I don't love this. I do think it would be nice to know what the court thinks about this topic. I mean we've talked before, it would be nice if they would have done something about this. And it is maybe an area where it's more okay for them to have a view in advance of litigation because it's about how they and as an institution function. But I guess I would prefer to see more from the Justices about what code of conduct they would like to obey and less about who shouldn't tell them what to do. [laughs]
Dan: But it seems like they can't decide about that. Yeah, no, I think what you just said is not crazy that in theory, to the extent that Congress is trying to regulate them directly, that might be a situation where they should be actually allowed to lobby in some way, and they do testify occasionally before Congress to ask for more money and stuff like that. So, I think that the Wall Street Journal editorial page is not really the right venue for that.
Will: I think you should get a blog. I'm also surprised-- I would like to know if he talked about the Necessary and Proper Clause giving this answer because I think you can argue about whether the Necessary and Proper Clause gives Congress this authority. But it's the most natural-- Like Congress has the authority to make all laws necessary and proper for carrying and execution, the powers vested by the Constitution and other branches of government. The standard view on the other side is that means they have the power to make laws that are necessary and proper for the court to carry its laws into effect, which could include making the court act ethically. Just like they pass laws saying that the federal government's not allowed to violate-- like the executive branch can't violate the Constitution or whatever. You could have a narrow review of that clause. I'm quite open to that view but would have liked to see some engagement with that. But maybe he did in the full transcript, they just didn't quote it.
Dan: Yeah. Right now, the quote we have is fairly emphatic from him. "No provision in the Constitution gives them the authority to regulate the court. Period." Other sort of related ethics thing, you did have the news recently that Justice Thomas' RV purchase, this is his RV. He travels around the country in it. He often talks about it in a way that he's painted to seem like this folksy guy. Apparently, it was very, very expensive. He bought it while he was a Justice. And it seems to have been funded by a loan from a wealthy friend, the terms of which are not clear. This is a story that the New York Times broke, that there was a lien on it. The lien was held by a wealthy friend of his. And at some point, that friend now says that the loan was satisfied in some way. It doesn't say whether it was forgiven or whether he paid it off. It won't say what the terms of the loan were or any of those things. It's another--
Will: And the story does also note that it's difficult to get a commercial loan to finance to purchase these kinds of RVs because they're expensive and sort of custom. So, I don't know that maybe that makes us think better about this, because you might be like, why do you borrow money from the wealthy friend rather than getting a car note like the rest of us?" Although, again, it's car notes.
Dan: But also, I would imagine it's hard to get a loan for a vehicle that costs 50% more than your annual salary. Because this was a $200,000 plus vehicle, and he made a good amount less than that at the time. [crosstalk] -hundreds.
Will: Yeah, I don't know. I take it these things last longer than your average sedan. Anyway, I don't have anything to say about this.
[crosstalk]
Will: No, I just refer you back to all of our previous conversations about Justice Thomas' commercial life.
Dan: Okay. I will just say of enough of these stories, they add up and they suggest that this is a Justice who seems to be relying a lot on wealthy friends to supplement his lifestyle. Exactly how much is a little unclear. But you can't say, "Well, these are bribes." You can't say that. I don't think there's good evidence of that. But you could still say, "Look, I'd really rather not have my public servants' lifestyles be propped up by these wealthy, powerful people." But you don't have to say anything. We can go on to the cases that we wanted to talk about. Remind me what we're talking about?
Will: Continuing our Indian tribe theme, I thought we'd talk about Arizona v. Navajo Nation. Several listeners wrote in to ask for lots more attention to Indian law, including this case and a bankruptcy case that we're not going to talk about, that also prompted an interesting Gorsuch opinion. But those are the ones we're talking about.
Dan: And then you also wanted to talk about Health and Hospital Corporation of Marion County v. Talevski. You said these are the two ones you were most excited to talk about. So, I said okay.
Will: You said these sound so skeptical.
Dan: You're going to explain over the course of this episode why that was the case, but these are fine. We can talk about these. You started with Navajo Nation, so do you want to start with that?
Will: Sure.
Dan: It's your case. Lead us in.
Will: My case. [chuckles] So, this case is about the water rights of the Navajo Nation, whether they have any water rights that anybody needs to respect. The Navajo Nation, like most reservations, is created by peace treaty in the 19th century. Takes a bunch of land into reservation into takes a bunch of land into trust to create their reservation. It's one of the largest reservations in the country. The court notes it's the approximate size of West Virginia. Also of interest, if you're a map and geography nerd, the Navajo Nation is inside the state of Arizona, which does not recognize daylight savings time, but the Navajo Nation does. So, the answer to various good trivia questions about where is one place you can stand where if you go X miles in each direction, that it'll become an hour earlier, regardless whether it's north, south, east, or west.
Dan: Oh, that's cool. Are you a map guy?
Will: Yeah.
Dan: I didn't know that. Is that like a hobby?
Will: No, just like--
Dan: You just like maps.
Will: I like games and trivia and then things like state capitals and how many states border, whatever--
Dan: Do you know all the state capitals?
Will: Yeah.
Dan: Instantly off the top of your head.
Will: I don't know how fast my recall is, but my sister used to babysit me and quiz me on state capitals and then give me candy if I could get them.
Dan: That's helpful.
Will: Yeah, it's good.
Dan: North Dakota.
Will: Bismarck, right?
Dan: I think so. I didn't look it up though. Moving on.
Will: The four state capitals that start with the same letter as the state they're in.
Dan: I didn't know that was a category of things we're supposed to know.
Will: It is.
Dan: Okay. But that's not true of Jefferson City.
Will: No. Right. [crosstalk]
Dan: You're just throwing that out there?
Will: I was turning the tables.
Dan: Oh, you're asking me, that was a question?
Will: Yeah.
Dan: I don't know. You think that's a thing I would have memorized at some point in my life?
Will: Yeah.
Dan: Maybe I'll go learn it now but 41 plus years in, I've never been called upon to know that fact.
Will: Wow. I feel it comes up like multiple times a year for me.
Dan: Really?
Will: Yeah.
Dan: Like, are you doing pub trivia, is that why?
Will: No, not that cool, but no, I feel like you tell people you're into maps, that's like one of the first--[crosstalk]
Dan: That's like one of the go-to questions?
Will: That's one of the go-to's, yeah.
Dan: I didn't know that.
Will: One of them is Indianapolis, and I grew up Indiana, so also, like that gets you on the--
Dan: Yeah, that makes sense.
Will: Anyway. So, the Navajo Nation, among other things, when this reservation creates a Navajo Nation, they get some kind of implicit rights to water, which we now call Winters rights after a 1908 Supreme Court case about this. Winters v. United States. And they're out in the desert southwest where there's not enough water to go around. And so, they file this suit, and even what the suit seeks seems to be disputed by the Justices. But in some way, they would like something about their water rights.
Dan: Yeah. This is a weird thing about this case, because this is a 5-4. We still get 5-4s occasionally when one of the conservatives splits off, but this is a 5-4 majority by Justice Kavanaugh, joined by Chief Justice and Justices Thomas, Alito, and Barrett. And Justice Thomas has a concurrence. We might talk about it in a minute. And then, we have a dissent joined by the perpetual defender of Indian rights, Justice Gorsuch, and then the three liberal Justices are with him. So, a couple of weird things. First of all, you have a pretty lengthy dissent. The majority basically doesn't respond to it. Like, very, very little in the way of response. Is that fair?
Will: Yeah. Does it respond at all?
Dan: No. It doesn't respond. It certainly doesn't explicitly respond at all. And that's a little weird. And there is this big framing question that the two sides seem to totally disagree about. And it would have been helpful to see the majority explain why the dissent is wrong about that framing question because the majority frames it as a certain way. So, in the beginning of the opinion, it says, "Navajo's claim is not that the United States has interfered with their water access. Instead, the Navajos contend that the treaty requires the United States to take affirmative steps to secure water for the Navajos. For example, by assessing the tribe's water needs, developing a plan to secure the needed water, and potentially building pipelines, pumps, wells, or other water infrastructure. Either facilitate better access to water on the reservation or to transport off reservation water onto the reservation." Okay, frames it as really this request for, "You need to come in and do a bunch of stuff."
Will: The majority's framing is like, "Look, you have the reservation. You have some water rights, whatever they are. It's the desert. There may not be enough water to go around. If that's true, we're sorry about that. And if somebody's getting away your water, if somebody's like damming your river or taking water out of the bodies of water that are reserved to you, let us know, and they should probably stop, but otherwise--" And it's written in the kind of opinion you might expect to be like a unanimous opinion where I think the government, Department of the Interior is also one of the appellants. So sometimes, you see these opinions where it's like there's some lower court decision and then the United States appeals and says, "This is really important, but it's just wrong," and the court unanimously says, "Yeah, sorry, this is nothing." But there were even a lot of Indian law cases like that 10, 20 years ago.
But no. Four Justices say, "That's not what this case is about." The tribe did insist this at oral argument. They said, "No, we're not saying they have to do something exactly. We would just like an accounting. We would like to know what our rights are." Now, I guess one question is, is that just too clever? Is that like an end run? They maybe want to assert that the United States has some affirmative duties, but they don't want to commit to that because the Supreme Court won't let them. And so, this accounting is going to be the [unintelligible [00:28:21] nose for another claim.
Dan: Yeah, I guess. But it's hard to really know without a clearer discussion of that by the majority without digging in a lot deeper into the case. But I mean, you could have the accounting and you could have a resolution of that question and still the answer could be maybe you're not allowed to get to order the government to do it, even if the government has some hypothetical obligation to do it. I don't know.
Will: Right. I agree. I mean, I think a sympathetic version, I think there have been cases before where there have been sort of these suits that claim they're about nothing but an accounting and then become incredibly protracted and costly and sometimes end up eventually being about something else. But I think sometimes the Department of Interior, just the accounting itself could be very complicated. And so, we want to know if there's some reason to do it. In normal litigation, you don't just get to get discovery in the absence of a theory. You can't just be like, "Well, I'd first like to know all the evidence you guys have about things you might have done." Now, maybe this is different because there's some sort of special relationship between the government and the Navajo, but it's a little weird. I also wonder, honestly, if the court were to require an accounting, if that would just be enough to spur a political-- The United States might have no obligation, but once they sat down to account for all the rights, they may well choose to take steps that they're currently not taking.
Dan: Yeah. But it does seem like much less of an ask because part of what the majority seems to be-- it's not exactly saying this, but it seems to be just this general presumption that affirmative obligations are different than other kinds of obligations in law. That it's a much bigger deal to order someone to do something and to have some affirmative responsibility versus just a requirement that you not do something, that you not interfere. But if it's just about getting the government to come in and say, "Okay, here's what your rights are," that seems much less intrusive. And it also is a weird thing about this because everyone seems to agree that the government is not really willing to say what the rights are.
Will: [chuckles] Right. So, that's what I find weird is, on the one hand, you might say to the Navajo, you might say, "Go figure out what your own rights are." [chuckles]
Dan: But I mean, their rights are vis-a-vis the United States, right?
Will: Yeah, but even I have a lot of rights vis-a-vis the United States. But I can't just ask for an accounting of what they all are. They're contained in various statutes in the Constitution. And if I think the United States is violating something due to me, I can sue them for it, but I can't just ask for an accounting of my rights.
Dan: You can't sue them, that’s in this case to the extent that it turns out that it's an affirmative obligation.
Will: If they were directly interfering though. If I thought some official was coming in know, violating my rights under the Federal Nursing Home Act, think about our next case, I could complain about that. But the fact that the United States doesn't know what their rights are either does start to make you wonder. And there are a couple of illusions--[crosstalk]
Dan: Knows but doesn't want to say.
Will: [laughs] That's even worse.
Dan: It is.
Will: And I take it, there's some illusions that nobody on either side wants to get too deep into about sort of past litigation about the Colorado River because part of the problem is there is extensive litigation in which the United States is involved in the States about how to allocate the Colorado River. And I take it one of the questions ultimately is something like, "Well, does the Navajo Nation have a right to something from the Colorado River that they're currently not getting? And if so, should somebody take some steps to make that happen?", which might involve reopening judgments already reached by the court about litigation over the Colorado River, which the court notes in a footnote and is like, "We're not going to even get into whether we should do that or not," but I take it that would be a potentially really big deal.
But then, they also note that there are earlier times when the Nation sought to intervene in some of this litigation, and the United States told them they couldn't because the United States was adequately representing their interests, which you might think if the United States was not adequately representing your interests, you have a right to complain about that. And maybe you at least have a right to know what the United States thinks your interests are, so you can figure out adequately. So, if you put those together, you could see how you might say, "Well, wait a minute, the states have divvied up the Colorado River. We tried to get involved and we're told that we couldn't. And now, we'd at least like to know what the situation is. [chuckles] What everybody thinks the deal is, and now we're told we can't even know that." That does seem a little suspicious.
Dan: Yeah. You have this breezy opinion. Breezy Kavanaugh opinion. This is an interesting development of his jurisprudence.
Will: The breezy opinion?
Dan: Yeah, in the sense that he seems to be writing some more short, "Let's just get to the answer. Let's not engage with everything." Some people are criticizing him for being more unreasoned than they'd like. I wasn't sure which way he was going to go. I thought it was possible he was going to be a bit more kind of Gorsuch like, "Let's get down to first principles in every case." And as majority, he doesn't necessarily like to do that. He seems willing to just be a little bit more quick and dirty and a little bit more practical, and not respond to everything. What do you think about that? Is that surprising to you?
Will: No, I think it's very interesting. And I would not have necessarily predicted that. I'm not sure I would have predicted the opposite. Like, he never quite seemed like a Gorsuch either.
Dan: Yeah.
Will: But I think of this-- [crosstalk]
Dan: I think he's one of the more scholarly intellectual judges. I know he reads a lot of scholarship. I've heard him talk about it. I've heard people whose scholarship he's read talk about him talking to them about it. But he doesn’t--
Will: [crosstalk] He definitely keeps up with the literature. And as a lower court judge, as you say, he had a lot of separate opinions. He was often as the lower court judge in the DC circuit, like pioneering a theory, whether it was the removal power or the Alien Tort Statute, like, he'd often be the one out there like pushing these new theories that the court would then adopt. But now that he's on the court, he doesn't seem to be doing that as much.
I do think there is this obligation the Justices have to make sure they don't mess things up. Like, they don't accidentally introduce some major change in an area of a law that's working just fine. And I think Justice Kavanaugh seems to feel that especially closely. He gets these cases have a lot of complicated stuff going on and where some of the Justices have the instinct of, "Well, let's figure out the way it's all supposed to work and try to get there," he seems to have the instinct of, like, "Let's resolve what we need to resolve and fix anything that's really wrong. But for a lot of things, we'll just avoid it."
Dan: Yeah, it's very similar to what he did in United States v. Texas.
Will: Or Reid v. Goertz.
Dan: Yeah. Some people are really saying, "Look, he's really trying to position himself as the median Justice." Drift a little bit left, make himself the Kennedy of the court. And I don't know.
Will: I think it's very anti-Kennedy in some mean. I feel like Kennedy opinions were often full of stuff, like thoughts about this area of law that were, like, genuinely helpful--
Dan: They were more up for grabs, and his jurisprudence seems a little bit more up for grabs right now, if that makes sense, in that he's not always drilling down to first principles, and he's willing to be a little bit more pragmatic, it seems like.
Will: Yeah. He just seems to be going out of his way to avoid opining on things. These are minimalist opinions.
Dan: Well, unless he wants to say that state laws criminalizing people traveling for abortion violate the right to travel.
Will: Well, this is what's especially interesting, is that he writes a lot of concurring opinions, like a lot of concurring opinions. And so, it's a funny combination to write very minimalist majority opinions, but then a large supply of concurring opinions in cases where you're not-- They're similar, and then almost always, there's like a way he frames the case. Like, "In my view, this case is about X. Dobbs is about neutrality. This is about whether there are [unintelligible 00:36:45] obligations," etc. So, maybe--
Dan: But without fully defending those assertions.
Will: Yeah.
Dan: In the same way in Texas case, that was pretty short. Maybe breezy. A lot more he could have responded to in terms of what some of the other members of the court were saying. Chose not to. I don't know. It's interesting.
Will: These opinions are written to tell you what the court has decided. But they are not totally written to convince you that the majority is right and everybody else is wrong. I mean, he doesn't need to convince you, he has five votes.
Dan: And that is something that actually Justice Kennedy is like Justice Kennedy and that he didn't feel it necessary to respond to everything a dissent said. So, maybe he's picking--[crosstalk]
Will: Or anything usually, right?
Dan: I mean, what do you mean "or anything"? Anything out there in the world?
Will: No, I just thought Justice Kennedy was known for not really, like not only not responding to everything the dissent said, but often for not really responding to the dissent at all.
Dan: Yeah, sometimes. I mean, it's not the case that he never responded to a dissent, but yes, he sometimes would just not engage at all. And there's something to be said for that. I think that some Justices, they're the type of people who just can't let it go, and they can't let something go unanswered without showing that they know it's wrong. But I don't think you need to do that. I think that makes the opinions actually less persuasive.
Will: I think these separate opinions are also interesting though. So, Justice Thomas, before we get to Justice Gorsuch, writes a concurring opinion that he writes separately to highlight an additional and troubling aspect of this suit, namely that for decades, this court has referred to a general trust relationship between the United States and the Indian people, which is true. This is like a mainstay of opinions about the federal government's obligations towards tribes, is you'll say there's a trust relationship and it in some way shapes how we think about the statutes and the government's obligations. I've heard that it shapes questions at the Solicitor General's Office about how to litigate these cases. To what extent do they have a trust relationship that requires them to treat the tribes differently than treat other entities. And Justice Thomas says that's all wrong, that if the word "trust" just means morally, like we trust the government to do the right thing. Okay, fine. I don't think that's what it means. But he seems to be against any legal concept of the trust unless there's like an actual statute creating a trust. This is like a big deal.
Dan: That would be big. I mean, and in general, it does seem like Indian law is an area where we have a lot of longstanding, but legally weird rules.
Will: Yes. That sums it up well.
Dan: There's like a canon, which is, interpret stuff to benefit Indians.
Will: That's one of the things Justice Thomas complains about.
Dan: Yeah. And so, he's sort of saying, maybe we need to make this more-- bring it up to date, apply 2023 formalism to it. And that would be a huge change.
Will: Yeah. Well, that's very much what I think the court was doing in Oklahoma v. Castro-Huerta. The McGirt retrenchment we talked about just two minutes ago. Also, a Kavanaugh opinion which, by the way, is not very minimalist. Where the court says, "Why would anybody think states don't have the power to regulate crime on Indian reservations?" That's a longstanding assumption, but once we apply more formal tools of conflict preemption or whatever, we don't see it. People said, "Wow, that's revolutionary." And yeah, I guess Justice Thomas is signaling something similar maybe here.
Dan: I bet you like this. You're going to withhold judgment?
Will: I liked it when you said longstanding but legally weird.
Dan: Yeah.
Will: Let's put it this way. I like the idea of trying to go through the developed jurisprudence of Indian law and actually try to figure out what parts of it are legally justified and what parts aren't, because I don't think they all are. I don't like the excessively textualist way that the Castro-Huerta, Justice Thomas, etc., seem to be doing it. I worry they're going totally miss the--
Dan: The deeper principles.
Will: Yeah. Just in a way that's going to be anachronistic. [crosstalk] The problem is if you go back to Worcester v. Georgia, which is not at the Founding, but it's 1832, it's legally weird. Now, you could say Justice Thomas could argue that Worcester v. Georgia is wrong, I guess. He hasn't quite gone there yet. But if you're going to argue that it's wrong, you need a really good explanation for how it went wrong. And if you're not going to argue that it's wrong, then being faithful to the project is going to be a little more complicated. And this came up somewhat in the Gorsuch v. Thomas fight in Brackeen we talked about briefly what are the powers to regulate in tribes and what's going [crosstalk] statutes? So, I like the project, but I worry that Justice Thomas is doing it anachronistically.
Dan: Yeah. There also would be the further question which I think Justice Thomas wouldn't care about so much, but even if you went through and did your 2023 Baudean formalism and figured out that some of these things didn't rest on super great footing, I mean, there's a lot of settled expectations here. And this might be an area where completely rethinking the area of law from the beginning would be pretty disruptive and unwise.
Will: Yeah. I think it's worse because there are a lot of unsettled expectations. Like, there are a lot of expectations, but then a lot of them are not totally firm either. So, I think it's one of those areas where it's even tricky to just say, "Look, we're just going to freeze and we're just going to accept everything the way it this, because so many things are a little bit in flux." But I agree that just makes it even more complicated. So, I have a paper in progress on trying to do this. Paper in progress is too-- I have a large Dropbox folder full of research, thoughts, puzzles. But so far, I'm lost in the wilderness.
Dan: Well, good luck. Does this case help at all or make it worse?
Will: It's interesting. Justice Gorsuch's dissent does two things that I guess are worth talking about other than the framing we just talked about. One is, like he did in his Brackeen opinion that you liked, he gives a lot more context for the creation of the Navajo reservation and how they're initially forced into this totally inhospitable territory, the Bosque Redondo, where they can't plausibly live and eventually get to move and promise this will be their permanent home. There's like a lot more color on the Navajo side of things. And he sort of ties himself a lot more to the treaties, which is an interesting answer to the Justice Thomas complaint.
And there's another important thing about study of laws, a lot of the time, these cases, ultimately there is a legal document written in 1868 about the rights of the parties. Justice Gorsuch, he is much more willing to go to the treaty [unintelligible 00:43:46], but then to talk about how do we interpret the treaty.
Dan: And he wants to do a fairly robust version of the Indian canon, right?
Will: Yes. And one interesting thing, this is one thing that made me think, is that some of those arguments are specific arguments that might be more true of treaties than statutes. As to treaties, he says let's use the contra proferentem canon. Like, the United States wrote this treaty and therefore we should construe it against the drafter. It's ambiguous. Some of the early cases about the Indian canon talk about that. They're like, "We're sort of forcing these treaties on the Indians, so we owe it to them to not then also construe the ambiguities to their prejudice." And it'd be interesting to think that canon could be right without the same rule necessarily applying to statutes. Like, once we've moved away from the treaty regime to the statute regime, it's not obvious the same arguments apply. But anyway, that's very interesting. And those principles, I think, do have some historical root.
Dan: So, anything else to say about this one? I really don't totally know what to make of it, but this may be just because this is an area of law that seems like you've thought a lot more about than I have, that I feel at sea about.
Will: Well-- [crosstalk]
Dan: Precisely because it has all these weird legal principles that don't totally line up with my intuitions about how law works elsewhere.
Will: Yeah.
Dan: And it's weird generally, this idea of the federal government in this fiduciary relationship, but then there's conflict between the parties.
Will: Yeah, I think it's weird-- Just two other things. I think it's weird, so much what the court does is set nationwide constitutional law, like what searches and seizures are permitted or is this statute constitutional? And so, it's interesting in these kinds of cases where the court really is just focusing on the rights of the parties. This really is just about the Navajo Nation and what kind of water-- whether the water situation is currently okay or not, is a good and important role for the court but it's sort of interesting to see them still having to take those kinds of cases.
Dan: It's sort of like the original jurisdiction cases, where it's a state versus estate.
Will: Yeah, exactly. And I do wonder if Justice Gorsuch-- this had been decided before Justice Gorsuch was on the court, whether this was one of those cases that would have been unanimous. Like, people would have read the Kavanaugh opinion and been like, "Okay, that seems right." Without somebody on the court really trying to see things from the tribe's point of view and put their claim in the best light and put it forward, I just wonder if anybody else would have done that [crosstalk] Justice Gorsuch.
Dan: Yeah, I mean, it becomes this slightly more ideological case where you have liberals versus conservatives plus, on the liberal side, the conservative Justice who likes Indian law and is pro tribe.
Will: Anyway, this is a good lens into the Justice Gorsuch Indian law jurisprudence.
Dan: How many of those cases do we have now? Five or six?
Will: I saw somewhere that there are 10. I saw somewhere that Justice Gorsuch--[crosstalk]
Dan: Including shadow dockety things?
Will: I saw a claim that he has a 10 and 0 voting record on tribes.
Dan: Okay.
Will: But I don't know exactly what's included in that, and I haven't checked that myself. We don't know how he voted in the city of Tulsa stay for instance.
Dan: Yeah. Okay, Will, in our time remaining, we should talk about the other case. Right?
Will: Yeah. The Federal Nursing Home Reform Act. Did you know about the statute?
Dan: I can't say that I did.
Will: Then, you probably had never thought about whether it ambiguously created an enforceable right?
Dan: I can't say that I have. But apparently, that's a question.
Will: And it does.
Dan: Okay.
Will: So, the core of this dispute is about the alleged mistreatment of somebody who was in a nursing home Indiana that allegedly violated the Federal Nursing Home Reform Act. But the interesting parts of this case are about federal jurisdiction and causes of action and when you can sue to enforce a statute like the Federal Nursing Home Reform Act or really any statute enacted under the Spending Clause in federal court, which requires you to use 42 USC 1983, the federal civil rights statute. And so, the hospital had lost below, and I think there was no circuit split, if I remember correctly. Nonetheless got the court to grant cert on the question of, should you say that the Spending Clause statutes can never be enforced under section 1983 because they aren't really like the same kinds of laws and rights as normal laws? Or even if they can, should you say you need to meet a really high burden that the federal nursing home reformat doesn't meet. The court granted cert on both questions and then affirmed on both questions and said, "No, actually, the normal standard applies, and the statute meets the normal standard."
Dan: So, it was kind of a waste of everybody's time.
Will: I think this is one of those cases where the court took cert with a serious possibility they're going to change the law and then decided not to. I guess you could think of the waste of time. But then, that actually can force the court to get into some interesting-- [crosstalk]
Dan: And I guess may have implications for other cases raising related issues.
Will: Yes.
Dan: The reasoning here is not just about the Federal Nursing Home Reform Act, but it would be applied to other federal statutes arguably creating enforceable rights.
Will: Indeed. The current law, which is apparently everybody's still on board with, is this funny combination of things, funny combination of decisions that nobody would have-- well, nobody, I think, would have decided these cases together this way on purpose. So, in the 1980s, the court has a case called Thibodeau where it says that you can use section 1983 to enforce statutes, not just the Constitution. I think of most section 93 cases of being up with the Constitution, but you can also use it to enforce statutes.
Dan: Because it says any rights secured by the Constitution and laws.
Will: Yes. Now awkwardly, that "and laws" thing was a mistake, probably, as far as we can tell. The original statute in 1871 did not say that, did not say "and laws." It just said in the Constitution. And then, when Congress wrote the first US Code, the revised statutes in 1874, the reviser added "and laws." People noticed this, there was some discussion about this, but he wasn't supposed to do anything substantive.
Dan: [chuckles] And then, that got actually enacted?
Will: Yeah, it was one of these positive law codifications, because for the codification to work, to be able to rely on it, it has to be law. So, Congress enacted it. They quickly then started trying to fix various things, and they never fixed this. You could argue that at some point we've accepted this, but it crept in on accident. It was originally supposed to be the Constitution and basically the laws enacted by Congress under Section V of the 14th amendment that were designed to divorce the Constitution, like the voting rights act and the civil rights act, but then it got turned into all laws.
Dan: What do you think about that situation where we know it's a mistake, but it nonetheless is the law that Congress authorized, because there's some people just have the take, some formalists just say, "Look, you got to apply the text. You can't do any absurdity canon. You can't look at purpose."
Will: Yeah. My instinct is a hard Scrivener's error doctrine doesn't apply, absurdity doctrine doesn't apply. The whole point of having a positive law codification is that you can read the statute and rely on it, and as soon as you open the door at all, somebody's saying, "Well, it's not supposed to say that." But otherwise, in the law, we do have an absurdity doctrine and a Scrivener's error doctrine, and the main place in the law that you actually have Scrivener's errors are these codifications. So, I'm a little reticent about that, but that's my instinct, is to go with it.
But it leads to weird consequences, because then the court has this developed jurisprudence about when do laws create a private cause of action and when don't they? And it often says they don't. So often there will be a federal statute, and the court will say, "Well, yes, there's a law, but it doesn't create a private right to sue."
And then after Thibodeau, the question was, is that whole jurisprudence meaningless? Does every statute automatically create a right of action? Because Congress accidentally put "and laws" in section 1983. So then, they have a case called the Gonzaga v. Doe where they sort of try to walk it back and they say, "Okay, you can sue to enforce a statute. But the statute has to create rights and it has to not be weird for it to have an enforcement mechanism like a private--" They sort of replicate a little bit of the test for their statute creates a private cause of action. That case is argued by, who was at the time, the best Supreme Court oral advocate in the country, John Roberts. And it was one of his particularly notable victories that he sort of got the court to narrow Thibodeau and require that the statute have specific rights creating language that it looked like the kind of thing that it would make sense to enforce.
This is the time in law school, I think I learned this as like, "Well, the statute was amended on accident. The court decided to go with it, but then they weren't going to just completely go with it because that would not really make sense. So, they've kind of walked it back."
Dan: But the question here in this case, it was up for grabs, I guess, whether they could have walked it back a lot more.
Will: Exactly. So, you might walk it back and say, laws under the Spending Clause are just like not the thing that should be seen as having rights, creating language in part for reasons Justice Thomas gets into in a dissent. Or you should really require extremely clear rights creating language because Spending Clause legislation doesn't have to be pursuant to Congress' normal enumerated powers and it's something that states have the optionality whether to agree to or not. And so, we maybe shouldn't think of Spending Clause legislation as quite the same law that could be enforced.
Dan: Yeah.
Will: But the court says, "Nope, it's law."
Dan: The Miranda doctrine is not law, by the way.
Will: We talked about that case, didn't we?
Dan: Yeah. From last term. That was a fun one about whether a violation of Miranda rather than a direct violation of the Constitution or a statute creates a cause of action under 1983. The court says, "No," but the answer to this is yes.
Will: So, the Federal Nursing Home Rights Act is higher law than Miranda. It's law. Miranda's not law.
Dan: Which is not crazy. I mean it's actually in a statute. It's written down in a statute, the things that this person is complaining about versus Miranda is kind of a judge made set of rules.
Will: Yeah, that's fair. Okay, so two things I thought were interesting about this. One is there's a concurring opinion by Justice Barrett and the Chief Justice. So, they join in the court's opinion and presumably they were some of the Justices who were originally interested in rethinking this. And they say-- the opinion makes three important points. Maine v. Thibodeau remains good law, but Gonzaga University v. Doe is also good law. And the bar is high. And although this statute clears it, many federal statutes will not. But it's interesting to see them deliberately reinforce both conflicting precedents in this area. We've ended up in a funny spot, but they're okay with it. And then, Justice Thomas has a 94-million-page dissent, by which I mean 36-page dissent.
Dan: Which is short for him.
Will: Well, is it? Are you joking?
Dan: Medium. It's not long for him. How about that?
Will: Well, he wants to rethink the entire nature of Congress' spending power.
Dan: Yeah. This was a new set of issues for me I hadn't really thought about so much. But basically, the idea, so I understand it, is he says everything under-- he doesn't even want to call it the Spending Clause, right?
Will: Yeah.
Dan: But everything under that thing that we call the Spending Clause--
Will: The so-called Spending Clause.
Dan: Yeah. That when Congress does that, it's just making a contract offer that is then accepted or rejected by the states. And what that means is I guess the implication of that is that really limits the remedies that are available vis-a-vis the states.
Will: Yeah, but also the legal status of the contract. I think the way he wants to think about this is, okay, the government has a bunch of money, and sure, they're allowed to give it to the states and the states are allowed to make promises in exchange for it. But like that promise, that is not the supreme law of the land. It's not even the same status as a treaty with the Indian tribes. It's just a deal. It's just like federal contracting.
Dan: Yeah. He seems to be saying, when there's a violation of this, basically the state is in breach of contract and the government can withhold the money. But there's nothing further than that. There can't be enforceable things that you can make the state do.
Will: Right.
Dan: And that didn't strike me as obviously right because it's not always the way contract law works. Even if we think contract law is the right analogy here, that contract law, people can contract for all sorts of obligations and so forth. But I don't know.
Will: Yeah, I'm not sure-- I guess if you actually did have a contract and the United States sued the state in the original jurisdiction of the Supreme Court for breach of contract to get specific performance, maybe he wouldn't write that off. But he doesn't think you could just sort of bring forward the ordinary federal officials, just like the ordinary functionaries of federal law to go make the states comply with their promises. This actually gets to something. I think we mentioned this issue briefly before. There are still these lower court cases about are there special rules for Spending Clause statutes? So, the liability of Harvard to not engage in affirmative action is all a Spending Clause statute. It's all because Harvard accepts federal money. So, these debates about are there limits on how clear liability needs to be to enforce that?
You might say it's a little weird that third-party beneficiaries to these contracts can sue at all. And that's part of the narrower dispute in this case is, could third party beneficiaries to a contract sue in 1871 or not? The court's not entirely sure. But there's something a little weird in saying because we gave the state money in the state period to do X, now some person can sue the Hospital Corporation of Marion County.
Dan: Yeah, but I'm still a little confused about this because if the defendant in this case, do we only care about this if it's a hospital that's publicly owned, would this issue still come up if we thought---? [crosstalk]
Will: You don’t have to be liable under Section 1983 at all.
Dan: And so, we never get off the ground on that.
Will: Right. Sometimes, you can have--[crosstalk]
Dan: But you can sue private prisons and stuff, right?
Will: Yeah. They count as state actors. So, it doesn't have to be publicly owned exactly. But it'd have to be a state actor. So, you can't use 1983 to sue Harvard if you have some complaint about them for instance.
Dan: You'd have to have a different cause of action. And there might be some similar questions that would come up there about, does some statute create a cause of action, but that would be easier, different.
Will: Some of them have just already been resolved at precedent, and some are harder.
Dan: Yeah.
Will: The weird thing with the Spending Clause is sometimes these questions are not important at all, because if Congress has other powers it can use to do this, then we don't really care about the Spending Clause. And so, during the era when we thought Congress could do basically anything it wanted to under its commerce power, nobody would care about this. We'd just say, "Oh, this is commerce." Like, nursing homes are commerce. But now that we have-- but before the 1930s, before we had a really broad interpretation of commerce, people cared much more about Spending Clause. Like in the 19th century, they care about a lot because they didn't yet think commerce could do anything. And now that we've had a little bit of retrenchment of the Commerce Clause, the Spending Clause is the main way to do things that you otherwise couldn't do. So, we care about it a lot again.
But it's sort of funny that-- therefore, there are only these periods in our history where we really think about the limits in the Spending Clause. But it does seem weird for the fact congresspeople to get around whatever other federalism rules we have, just by spending money.
Dan: I guess. It doesn't seem that weird to me. I mean, you're making a deal. And it seems like, why can't we just say, "Here's the money. If you want the money, basically you're effectively agreeing to be sued if you break the rules." That doesn't seem crazy to me.
Will: No, it's not crazy. It's just then why do we bother having limits on Congress' power, given that they can raise as much money as they want to through the 16th Amendment? They can raise basically all the money in the country and then ransom it back. Why bother to put limits on Congress's power if Congress can just contract around them all anyway?
Dan: But I mean, states could say no, that's the big difference. That seems like a meaningful difference. The limit is what they can do without consent, and they can also get people that they can make a deal. There's all sorts of things that you can't do on your own but you can make a deal to be able to do.
Will: Yeah, but then there are other things you can't. I mean there are lots of things you're not allowed to commercialize.
Dan: Yeah. Not that many. Contraband, selling your organs, stuff like that.
Will: Sex.
Dan: Outside of Nevada.
Will: Grades. You can't sell grades.
Dan: Yeah, that's true. That's not really a legal--
Will: It's an honest services fraud, I think.
Dan: There is a case like that. But I think that's no longer a good law post Skilling. Maybe it's a kickback. So, I'm not sure.
Will: A bribe, just like selling grades for money is a bribe.
Dan: Yeah.
Will: Maybe under Percoco and Ciminelli.
Dan: It's been a few months since we did those.
Will: Yeah. Just to your point that this is why in NFIB v Sebelius, the court feels the need to come up with this doctrine about coercion because they think it's really important states people to say no. Which means that if it's a deal where it seems like the states can't say no, maybe something is fishy about it.
Dan: Yeah.
Will: But, of course, this is not something we do in normal contract law this aggressively. We don't relitigate the contract for whether or not you could have said no. It's actually very hard to do that in principle and going our way.
Dan: But we might care more about that in a monopoly situation, which is sort of what the situation is when federal government is interacting with the states. Right?
Will: Yeah. Well, that's why it's weird to say, okay, we got these rules because they set up the government. They're very important. You can contract around them because they're just making a deal. But because it's a monopoly, you can't always contract around them. We're going to have some like antitrust law for federalism that'll determine when you can and can't get around it. It's not the same as the rules we actually have enacted for federalism but it's still in some way informed by them. I mean that's where we are. That's the law. But it's a little weird.
Dan: So, what would the upshot be if Justice Thomas were right. Basically, nothing that is authorized pursuant to the thing that he doesn't want to call the Spending Clause, can create judicially enforceable rights.
Will: I think that's right.
Dan: If the state doesn't do it, the only thing the government can do is just say you're not getting your money, you owe us our money back, whatever.
Will: Maybe in a way spending stuff would become a political question basically. Like, there'd still be lots of fights between the federal government and the states about money and who gets it and who doesn't and who broke a deal. But it'd be more like when members of Congress make deals with each other and then renege on them. Like, nobody thinks that we can sue members of the Republican caucus for breaking their deal to Kevin McCarthy or not or whatever. [chuckles] We just let that play out. Seems to be how Justice Thomas-- [crosstalk]
Dan: And I wonder, my intuition, without really thinking about it is that could be potentially quite avulsive. Like it could make a big deal to the success of certain federal regimes if suddenly there's no way to have them enforced judicially. That could be a big, big deal.
Will: Yes.
Dan: This sort of seems like it's this technical cause of action question. But if he persuades other people, that would be pretty massive.
Will: Yeah. This is why I thought we should at least talk about the case.
Dan: Okay, maybe I'm persuaded.
Will: Now, maybe Justice Thomas is the only person who sees it this way although sometimes--
Dan: Justice Alito, right?
Will: Justice Gorsuch signals some openness to some of these questions, not quite as big as Justice Thomas', but he signals his openness to some of these. And I don't know totally how it would shake out. In some cases that could just mean that federal officials are freed to do a lot more sort of aggressive enforcement against the states backed by the threat of losing all their money, I'm not sure, but it would be a big deal.
Dan: Do you have a strong view on this question?
Will: I mean, I think Justice Thomas is right about the basic point that there is no Spending Clause. And therefore, the whole thing has gotten off on the wrong track. I'm not as sure he's right that therefore you can't have any statutes that create third-party rights. Like, could the Necessary and Proper Clause supply some of that stuff? Maybe not all of it, but some of it.
Dan: If he's right, can the US Government still sue or not? Would that also be commandeering? We still would be commandeering, right? If the government is in there ordering states around?
Will: But if they were suing to enforce not a statute, but a contract and if the state, there was no sovereign immunity because of the sovereign to sovereign suit, maybe.
Dan: But then why can't we frame the other suits as just suits to enforce a contract? Just because it's a third-party bringing suit?
Will: Yeah. Well, the general rule, the United States can sue states, but that doesn't mean that private people can sue states.
Dan: But that's a sovereign immunity point, right?
Will: Yeah, but sovereign immunity and commandeering are just two sides of the same coin.
Dan: Is it?
Will: That's what Alden v. Maine says.
Dan: I mean, they're related, but it seems like commandeering is-- I thought it was sort of partly about actually getting in there and telling the state what to do. Like ordering to do certain things.
Will: They're different doctrinal boxes.
Dan: Using the vehicle.
Will: They're different doctrinal boxes. If they make any sense together, they're probably unified by some underlying theory of federalism that the court has never really spelled out. So, I'm being very fast and loose by trying to tie those together. But I think it's probably right.
Dan: But I mean, the federal government can't commandeer, but it can overcome sovereign immunity in regular people.
Will: Yeah, but only against the state itself.
Dan: But I mean 1983 breaches sovereign immunity, right? [crosstalk]
Will: No. it doesn't.
Dan: For municipalities.
Will: Yes, but they don't have sovereign immunity because they're just municipalities.
Dan: Right. Okay, I guess now I'm confused again. So, who's being commandeered in this case? Nobody?
Will: I guess that's the county, would be the theory.
Dan: But you said it was the same thing as sovereign immunity. But the county doesn't have sovereign immunity?
Will: That's true.
Dan: So then, I'm confused. Even entities that don't have sovereign immunity in theory, on this view are still protected against commandeering.
Will: Yeah, I see your point. In Baude world, this is part of where the commandeering doctrine has gone too far. Like, the core commandeering doctrine maybe shouldn't apply to all these subdivisions and subparts of states, because part of what's going on is we're forcing the state and its actors to take on a liability or rule that isn't one we can directly enact. So, it's a little bit like the commandeering problem of trying to, but I agree that it doesn't totally add up.
Dan: Well, we will see if you can add it up on a different day or if the court can for you. But law from this case, I guess, basically stays where it was, and we will see if there will be a future occasion in which Justice Thomas and maybe Justice Gorsuch want to delve a little deeper into these constitutional issues and have some success in doing so.
Will: Sounds good.
Dan: All right. I am out of time.
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Dan: Thanks very much for listening. We will try to keep the episodes coming, but we may slow down a little bit from our recent pace. Please rate and review on the Apple Podcast Store or your podcast store of choice. Please visit our website at dividedargument.com, where we have transcripts of the episodes fairly soon after the episodes come up. We have merchandise at store.dividedargument.com. You can send us an email with feedback, questions, and so forth at pod@dividedargument.com. Not always great about responding to those, but we do read everything. And you can leave us a voicemail, ideally in song form, 314-649-3790.
Will: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors, and the four state capitals whose name share the same letter as the state they're in are Indianapolis, Indiana, Dover, Delaware, Honolulu, Hawaii, and, of course, Oklahoma City, Oklahoma.
Dan: Did you just look that up or did you just do that from memory?
Will: Memory, of course.
Dan: Okay. All right. Well, if we don't record an episode for quite some time, it will be because we are parched, because we don't have any water rights.
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