The Morning Dispatch: A Big Day at the Supreme Court

Plus: Breaking down a trendy conspiracy theory about January 6.

Happy Friday! President Joe Biden signed the legislation establishing Juneteenth as a federal holiday into law yesterday, and because June 19th falls on a Saturday this year, most government agencies are opting to observe Juneteenth today. So happy Juneteenth observed!

Quick Hits: Today’s Top Stories

  • In a 7-2 ruling yesterday, the Supreme Court dismissed a challenge to the Affordable Care Act brought by several Republican state attorneys general arguing the law’s lack of an individual mandate should render it moot entirely. “[The plaintiffs] have failed to show that they have standing to attack as unconstitutional the Act’s minimum essential coverage provision,” Justice Stephen Breyer wrote for the majority.

  • The Supreme Court also handed down a decision in Fulton v. Philadelphia yesterday, siding unanimously with Catholic Social Services foster home, with whom the city of Philadelphia had stopped placing children in 2018 due to the home’s policy against matching children with same-sex couples. “The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment,” Chief Justice John Roberts wrote.

  • The House voted 268-161 on Thursday to repeal the 2002 Authorization for the Use of Military Force (AUMF) in Iraq, with 49 Republicans voting in favor compared to just 10 last year. If the Senate passes the legislation, President Biden is expected to sign it. The 2001 AUMF passed following 9/11 remains in place.

  • Hong Kong police on Thursday arrested five editors and executives of a pro-democracy newspaper—Apple Daily—on charges of colluding with foreign powers. Made under China’s national security law, the arrests are expected to have a dramatic chilling effect on press freedom. Hong Kong’s security secretary added that anyone caught “associating with these criminals” will “pay a heavy price.”

  • The United States confirmed 10,680 new cases of COVID-19 yesterday per the Johns Hopkins University COVID-19 Dashboard. An additional 286 deaths were attributed to the virus on Thursday, bringing the pandemic’s American death toll to 600,934. According to the Centers for Disease Control, 13,826 Americans are currently hospitalized with COVID-19. Meanwhile, 2,054,216 COVID-19 vaccine doses were administered yesterday, with 175,867,860 Americans having now received at least one dose. (There was another glitch with the Johns Hopkins testing data yesterday.)

A Big Day at the Supreme Court

Yesterday, the Supreme Court handed down two consequential rulings in California v. Texas and Fulton v. City of Philadelphia. In the first, a majority dismissed a challenge to the constitutionality of the Affordable Care Act, and in the second, the court narrowly (but unanimously) sided with a Catholic adoption agency that declined to certify same-sex couples for adoption referral. But in both cases, the court’s decision did not fall along predictable partisan lines.

In the Obamacare case—or, as Justice Samuel Alito described it, “the third installment in our epic Affordable Care Act trilogy”—two individuals joined Texas and 19 other Republican-led states to sue the federal government in an effort to strike down the entire law. The penalty enforcing the individual mandate, the part of the ACA which required Americans to purchase some health insurance coverage, was zeroed out by Congress in the Tax Cuts and Jobs Act of 2017. The plaintiffs argued that since the mandate was no longer tied to any monetary penalty, it was no longer a constitutional exercise of Congress’ taxing power. In addition, their suit contended that the mandate could not be divorced from the rest of Obamacare and so the entire law had to be struck down if the mandate was unconstitutional.

The Supreme Court, however, took a different view. Writing for a 7-2 majority, Justice Breyer wrote that neither the states nor the individuals in the suit had standing to sue the government, since the penalty associated with the individual mandate—the basis for filing the suit—did not pose any financial harm to the plaintiffs.

“No one claims these other provisions violate the Constitution,” Breyer wrote. “Rather, the state plaintiffs attack the constitutionality of only the minimum essential coverage provision. They have not alleged that they have suffered an ‘injury fairly traceable to the defendant’s allegedly unlawful conduct.’ For these reasons, we conclude that the plaintiffs in this suit failed to show a concrete, particularized injury fairly traceable to the defendants’ conduct in enforcing the specific statutory provision they attack as unconstitutional. They have failed to show that they have standing to attack as unconstitutional the Act’s minimum essential coverage provision.”

On Thursday, Democrats celebrated the ruling, calling it a victory for Americans who have come to rely on the ACA for health coverage. House Speaker Nancy Pelosi, who last year contended that “millions of families’ health care [would] be ripped away” if Justice Amy Coney Barrett was confirmed to the court, labeled the decision “a landmark victory for Democrats’ work to defend protections for people with pre-existing conditions.” President Biden offered a similar assessment, tweeting a reference to his 2010 hot mic comment calling the law a “big f—king deal.”

The fact that a court with six Republican-appointed justices upheld the constitutionality of the ACA by the widest margin yet came as a surprise to many observers. Michael Kolber, a healthcare attorney at Manatt Health, told reporters that this case will have political as well as legal repercussions. “A 7-2 decision with several Trump appointees in the majority signals to some litigants and some policymakers and some politicians the direction the court is going on these cases.”

Justices Alito and Neil Gorsuch, however, offered a sharp critique of the majority opinion in their dissent, writing that “once again the Court has found a way to protect the ACA.” The dissenters argued that the majority had “duck[ed] the issue” by being “selectively generous” in deciding when states’ injuries would be sufficient grounds to sue. 

“A tax that does not tax is allowed to stand and support one of the biggest Government programs in our Nation’s history. Fans of judicial inventiveness will applaud once again. But I must respectfully dissent,” Alito wrote in his conclusion.

Also on Thursday, the Supreme Court released its opinion in Fulton v. City of Philadelphia, a religious liberty suit brought by Catholic Social Services (CSS) against a city ordinance requiring the agency to screen same-sex couples interested in adopting children. In 2018, the city told CSS that it would no longer refer children to the agency or renew its contract unless CSS complied with Philadelphia’s non-discrimination policy. While CSS was willing to certify gay or lesbian individuals as single foster parents or to place gay and lesbian children, the city refused to negotiate.

Although Philadelphia’s position was upheld by both the district court and the Third Circuit Court of Appeals, the Supreme Court ruled that the city’s refusal to contract with CSS was unconstitutional. Writing for a unanimous majority, Chief Justice Roberts explained, “CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else. The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.”

But while all the justices joined Roberts in his opinion, the Supreme Court was divided on a broader question—whether a precedent established more than 30 years ago in Employment Division v. Smith about religious exercise should be upheld. In that case, former Justice Antonin Scalia wrote that individual religious beliefs do not exempt individuals from following “generally applicable laws.” Moreover, the Smith ruling held that laws incidentally burdening religion are not subject to strict scrutiny—the highest and most rigorous form of judicial review.

In three separate concurrences, the justices offered their opinions about how the court should view the conflict between government policy and free religious exercise. In her opinion, Justice Barrett suggested that while she believed the textual and structural arguments against Smith were “compelling,” she was “skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime.”

In his 77-page concurrence—which at times read more like a dissent—Justice Alito went further, calling the majority ruling “a wisp of a decision that leaves religious liberty in a confused and vulnerable state.”

In an interview with The Dispatch, UCLA Law Professor Eugene Volokh argued there is now a 3-3-3 split on the court regarding religious liberty exceptions.

“Three justices take the view that, generally speaking, religious objectors ought to get exemptions from generally applicable laws,” Volokh said. “Three more justices say, well, they might often get exemptions, but under a more pro-government, less pro-objector standpoint. And the other justices didn’t opine on the subject. So what’s going to happen when the court considers the big picture again—the big picture question about religious exemptions from generally applicable laws? When it’s going to reconsider that, I don’t know.”

John Bursch, the senior counsel and vice president of appellate advocacy at the Alliance Defending Freedom, said there would be no issue with establishing a strict scrutiny test in the future.

“The reason why Justice Scalia wrote Employment Division v. Smith was that he was concerned about a case like speed limits—someone creating a new religion and [saying] that gives them the unilateral right to drive on the road as fast as they want,” he told The Dispatch. “But a strict scrutiny test could actually satisfy that problem. You’d have to demonstrate that it was a sincere religious conviction … and on top of that, the government could show that it has a compelling interest in making sure that people on the road are safe. So it’s not that a strict scrutiny test is unworkable, it just means that it needs to be fleshed out so the justices see how it can work.”

The Latest Fad for January 6 Truthers

In the days following January 6, many on the pro-Trump right began circulating a conspiracy theory that those who stormed the Capitol that day weren’t actually Trump supporters, but Antifa rioters and other false-flag operatives. As more and more people connected to January 6 are arrested and charged, however, that theory has begun to fall out of favor.

But something new is bubbling up to take its place, and Andrew has the latest in a piece for the site today: “The real ringleaders of the 1/6 violence may in fact have been undercover federal agents.”

Where is this conspiracy theory coming from?

Here’s Tucker Carlson, host of the most-watched show on cable news, on Tuesday: “FBI operatives were organizing the attack on the Capitol, on January 6, according to government documents.” Here’s Rep. Marjorie Taylor Greene reacting to that segment on Twitter: “We need names and answers about the FBI operatives, who were involved in organizing and carrying out the Jan 6th Capitol riot.” And here’s Rep. Louie Gohmert making the same claim Thursday on the House floor: “We don’t like to see government agents stirring up trouble, or finding that there are criminal acts that would not likely have occurred had not the federal government been participating. … This is not only third-world stuff, this is like Putin kind of activity.”

It’s a remarkable charge: 1/6 was an inside job! You can see why Darren Beattie—the Revolver News writer behind the story, who appeared on Tucker’s show to discuss it—told the host, with an apparent lack of irony, that “I’m hearing from people that this is the most important and the darkest investigative piece they’ve seen in years.” One of those people is Beattie himself, who in the piece describes his own work as a “ground-breaking report” and a “seismic exposé.”

The only problem is that there isn’t any particular reason to believe it’s true.

The case is predicated on a simple question: If the government is trying to throw the book at these rioters, why have some of the people described as participating in planning or coordinating the attack not been charged?

These mystery participants, known as “unindicted co-conspirators,” are common features of charging documents. When criminal activity is described, involved actors whom the government has not yet charged are typically referred to anonymously. Criminal penalties aren’t the only undesirable outcomes of being associated with a crime: If they were named, people whom the government describes as committing crimes but don’t face charges would face major reputational damage while lacking the opportunity charged people have to try to clear their names in court.

There are several reasons why government officials might choose not to charge someone in this situation: They believe they have insufficient evidence to get a conviction, they don’t know for sure who the person in question is, or the person has agreed to cooperate with the government in exchange for charges being dropped. In this case, however, Beattie writes each of these possibilities off—judging it far more likely that at least some of the unindicted co-conspirators mentioned in charging documents were preexisting government informants, or even undercover agents.

Many others have already pointed out that it would be highly unusual, if not impossible, for FBI agents or pre-embedded informants to be referred to as unindicted co-conspirators in charging documents. One Duke law professor told the Washington Post that “undercover officers and informants can’t be ‘co-conspirators’ for the purposes of establishing an agreement to violate the law, because they are only pretending to agree to do so.” 

But the inside-job account falls apart at a still more fundamental level than this. In order to start layering on the hypotheticals and suspicions, Beattie first needs to establish that the existence of these unindicted co-conspirators in the charging documents is suspicious in the first place. He purports to do this by explaining why the usual reasons prosecutors would refer to people in this way supposedly don’t make sense here.

Beattie argues that none of the January 6 rioters could have flipped on their compatriots as early as January 27, because the first plea deal wasn’t filed in court until April 16. But April 16 isn’t the date the government reached an agreement with the person in question (Jon Schaffer, a founding member of the Oath Keepers militia)—it’s the date that agreement was entered into the court’s public record. By that point, Schaffer had already been cooperating with the government for an unknown amount of time.

The idea that a person can work backward from a public record of plea deals to ascertain which unindicted co-conspirators might or might not have been granted immunity is laughable. In some cases, the government may not strike an official plea agreement until after the co-conspirator has followed through on a pledge to testify. In others, the government may strike an agreement, but keep it under seal until the perp’s use as an informant has run its course.

Worth Your Time

  • As we mentioned up top, President Biden signed into law yesterday legislation establishing Juneteenth as the United States’ 11th federal holiday. The Washington Post put together a great interactive piece—overflowing with pictures and videos of celebrations from the past 150 years—that explains both the significance and the origins of the day. Once you’ve read that, check out U.S. historian Kenneth Davis’ piece on the holiday from 2015. “Juneteenth is viewed by many of those who are aware of it as an ‘African-American holiday,’” Davis writes. “That perception unfairly diminishes the fundamental significance of Juneteenth. The day should be recognized for what it is: a shared point of pride in the symbolic end of centuries of racial slavery — a crime against humanity and the great stain on America’s soul. As meaningful as Independence Day itself, Juneteenth completes the circle, reaffirming ‘life, liberty and the pursuit of happiness’ as the rights of all, not a select few.”

  • The technology sector is a pretty easy punching bag these days—on both the left and the right—but the past year and a half would have been a whole lot worse without it. “We are coming out of the pandemic quicker with more businesses and livelihoods preserved than we had any right to expect,” venture capitalist Marc Andreessen writes in Future. From vaccine technology, to telemedicine, to communication platforms, to streaming services, innovation played a huge role in allowing the world to continue turning. “The experience of COVID has made crystal clear both how important our technology is to human flourishing, and how well we can deliver. Technology helped save the world.”

Presented Without Comment

Also Presented Without Comment

Toeing the Company Line

  • The latest Hangover with Chris Stirewalt is here, and it’s a good one. Chris sits down with Parker Poling, the 2019-2020 executive director of the National Republican Congressional Committee, to discuss why Republicans entering the party without any Trumpian baggage were able to outperform the former president. Plus, how the GOP made strides in diversifying its cohort and advice for freshman members of Congress. 

  • You’ve been waiting all term for this one: David and Sarah are here to walk you through Thursday’s big Supreme Court rulings on the latest Advisory Opinions. Plus, possible Supreme Court infighting?

  • Repeat Remnant guest David Bahnsen made his fifth appearance yesterday to talk all things economics. Do the rich need to be taxed more? Are growing pains to be expected as we fully reopen the economy after a year and a half? Are we on the precipice of an inflationary death spiral?

  • Up on the site today, Charlotte Lawson has an excellent piece previewing today’s presidential election in Iran. “When Iranian citizens (those who aren’t boycotting the election, that is) cast their ballots, they’ll see the names of a handful of hardliners to replace current President Hassan Rouhani,” she writes. “But despite the mirage of choice, [Judge Ebrahim] Raisi’s elevation to office has very likely been pre-decided for voters—through mass disqualifications, state-run media support, last-minute rule changes, pressured withdrawals, and behind-the-scenes favor from Supreme Leader Ali Khamenei himself.”

Let Us Know

It’s been nearly 40 years since we last established a federal holiday. What do you make of the newest one?

Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Haley Byrd Wilt (@byrdinator), Charlotte Lawson (@charlotteUVA), Ryan Brown (@RyanP_Brown), Harvest Prude (@HarvestPrude), Tripp Grebe (@tripper_grebe), Emma Rogers (@emw_96), Price St. Clair (@PriceStClair1), Jonathan Chew (@JonathanChew19), and Steve Hayes (@stephenfhayes).