Legal Docket: From dreadlocks to donor lists

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NICK EICHER, HOST: It’s Monday the 6th of October.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

This is not just any old Monday. This is the first Monday in October, when the nine justices of the U.S. Supreme Court return to the bench for a new term.

EICHER: Here on Legal Docket, that’s a little like opening day in baseball, except it’s the playoffs, so it’s more like the opening faceoff for a new hockey season, but I digress.

What the First Monday brings is a fresh slate of cases and controversies, many that will bring rulings that will affect our daily lives.

REICHARD: Starting next week, we’ll have coverage of oral arguments so you can hear directly from the lawyers and justices. But today we’re looking ahead at some of the bigger disputes already on the docket.

EICHER: And for that, we’ve brought in all the senior partners in the firm Reichard, Rough, and West—WORLD’s legal reporters Jenny Rough and Steve West join us. Good morning to you both.

All three of the lawyers have prepared three cases each, matters they’ll be following closely this term.

REICHARD: So let’s get started. Jenny has the first case for us.

EICHER: She does. First up, Landor v. Louisiana Department of Corrections. This one involves the dreadlocks an inmate wears, or rather the dreadlocks he used to wear. Dreadlocks that were cut off against his will. The question is whether he can sue prison officials for damages under federal religious-liberty law. Jenny, what happened here, and why is this before the U.S. Supreme Court?

JENNY ROUGH: Damon Landor is a practicing Rastafari, so he took the Nazirite vow to not cut his hair. But as you mentioned, the prison officials cut it anyway. And the statute at play is known as RLUIPA, the Religious Land Use and Institutionalized Persons Act.

Now there’s no circuit split in this case. Circuit courts have consistently said an inmate cannot sue individual prison officials for money damages under the federal law. But there is a Supreme Court case about a sister statute that has identical wording in its relief provision that says such lawsuits are allowed. So the court is going to have to thread that needle.

EICHER: If the Court were to side with Landor here, Jenny—if it opens the door to damages—how big could that be for other inmates?

ROUGH: Well, it could expand an inmate’s ability to sue under this federal law, but the law does fall within a certain context. But it would certainly be a strong deterrent to prison officials.

EICHER: Alright, number two Trump v. Slaughter. President Trump fired the head of the Federal Trade Commission, the commissioner Rebecca Slaughter, and he fired her without giving a reason. Federal law says commissioners can only be removed for inefficiency, neglect, or malfeasance. So could you lay the facts out in this one..

ROUGH: Well, the president, as the head of the executive branch, has very broad powers to remove members of the executive branch. But as you mentioned, there’s a federal law, the Federal Trade Commission Act, that says a commissioner can only be removed for specific reasons. And Slaughter argues her removal was unlawful because none of those reasons existed.

EICHER: So I understand a lot of the case law here goes way back to the 1930s when the size of government really exploded.

ROUGH: Yeah, ninety years ago, the Supreme Court decided Humphrey’s Executor versus the United States. In a very similar set of facts, President Franklin D. Roosevelt fired Federal Trade Commissioner William Humphrey because Humphrey didn’t agree with the president’s policies. But the Court held that the president couldn’t do that because of the statute.

And the rationale at the time was that the commission’s job wasn’t purely executive. It included quasi-legislative and quasi-judicial tasks.

So jumping forward to the current case, the court wants answers to two questions: Does the federal statute’s removal protections violate the separation of powers? And if so, does Humphrey’s Executor need to be overturned?

But either way, it seems like the court will look at the role of the FTC and how it has changed over the years.

EICHER: Alright, Jenny, well the third one is Case v. Montana. In this one, police entered a man’s home without a warrant after a welfare call. So it’s a little bit different. He says that violated his Fourth Amendment rights. So could you walk us through how this case unfolded.

ROUGH: Yeah, and just a real quick reminder, the Fourth Amendment prohibits unreasonable searches and seizures. And it says search warrants must be based on probable cause. But there are exceptions.

So, it was actually William Cases’ ex-girlfriend called the police. She was on the phone with Case when she heard a pop and then silence, and he had been threatening suicide. So the police went to his house. Nobody answered. They entered. Case stepped out of a closet holding a dark object in his outstretched arm. And an officer shot him in the abdomen. And the dark object was a gun. So Case was arrested for assaulting a peace officer, but he now wants the gun and other evidence suppressed, saying police violated his Fourth Amendment rights by entering his house without a warrant.

So the question here is what standard applies for this emergency aid exception to getting a warrant. The traditional standard is probable cause that an emergency was unfolding, or is it a lesser standard like reasonable suspicion?

EICHER: So I guess, too, whether it makes a difference that this wasn’t a criminal investigation, but rather just a welfare check? That’s pretty key I would imagine.

ROUGH: That is such an interesting question, and it flags a tension that makes this case so hard. If police had been investigating Case for a crime, they would have needed probable cause. But because they were supposedly helping, they’re arguing the standard is lower. The Court has long said the home is entitled to the highest level of protection. So it kind of begs the question: Why would a criminal be entitled to greater protection than a person who needs help?

So the justices are going to have to wrestle with protecting the sanctity of the home, but at the same time, wanting police to be able to enter a house when a life is in danger.

EICHER: All right, Jenny, thanks so much time now to turn to Steve West. He's been watching several cases with First Amendment and executive power themes. Steve first up for you, Chiles v. Salazar. Colorado bars licensed counselors from engaging minors in what the state calls “conversion therapy.”

Colorado bars licensed counselors from engaging minors in what the state calls conversion therapy. So in this one, we see a Christian counselor saying that the state ban violates her free-speech rights because it allows therapists to affirm same-sex attraction or affirm a gender transition, but not to question any of those things. So talk a bit about that for us, Steve.

STEVE WEST: Well, Nick, the law actually says that it prohibits mental-health professionals from engaging in any practice or treatment, and that includes simply talking to a person that attempts or purports to change their minds about their sexual orientation or gender identity. So it’s like a lot of other laws that have proliferated around the country, whether they’re passed by states or local municipalities or counties.

It’s a speech ban. You can help an individual explore and even affirm their same-sex attraction or a gender not matching their sex, but you can’t help them become comfortable in their own sex or cope with their same-sex attraction.

So Kaleigh Chiles—she’s the counselor here—says this is a free-speech issue, that this is a ban of certain speech not approved by the state, whereas other speech is approved by the state. So it’s focused on the content of speech and therefore violates her free-speech rights.

EICHER: Well, there’s a pretty direct tie from this one to the next case, Steve—going from free speech and counseling to free speech and association in a different context, pro-life ministry.

This one is First Choice Women’s Resource Centers v. Platkin. New Jersey’s attorney general had subpoenaed a pro-life pregnancy center, demanding donor lists and demanding internal records. The center says this is a clear violation of its First Amendment rights. So what is the state after here?

WEST: Yeah, first of all, just to clarify, the subpoena issued by the attorney general is an investigatory subpoena. It’s not a court subpoena. So it doesn’t have any power, in and of itself, to force the pro-life ministry here to disclose the identities of its donors or their other information—their names and addresses and that kind of thing.

So he has to go to court—state court—in order to get an order enforcing it, which is what the attorney general has done. And also, the pro-life ministry here has gone to federal court at the same time and asked for an order barring the state from getting this information.

And the federal court has deferred to the state and said the issue is not yet ripe for consideration, that you can certainly litigate your claims in state court. So what the case is about is which court can we be in, rather than the constitutional issue at this point at least.

EICHER: Well, Steve, Jenny had a case on presidential power, and you do too. This last one for you is Learning Resources v. Trump.

Two family-owned toy companies in this one are challenging tariffs imposed under the International Emergency Economic Powers Act. They argue that Congress gave too much trade authority over to the President. So, Steve, go through the facts here for us

WEST: Yeah, these are two companies that import educational toys that are made in China and a few other countries that are affected by tariffs. The Constitution says Congress can assess tariffs, but Congress has also delegated some of that authority to the executive branch through this International Emergency Economic Powers Act.

And so it authorizes the President to take action to deal with any unusual and extraordinary threat to the national security, foreign policy, or economy of the United States if he declares a national emergency—which is what President Trump has done in this case.

EICHER: And so on top of everything, it’s on an expedited schedule.

WEST: It is. It'll be heard In November—pretty quickly.

EICHER: Yeah, all right. Well, questions of free speech, donor privacy, and executive power. Steve, thank you very much.

WEST: You’re welcome.

EICHER:Well, Mary, you’ve been looking at three more cases, starting with a pair of them on women’s sports.

First up, West Virginia v. B.P.J. and Little v. Hecox.

So what are these about? I thought we’d settled these women’s-sports questions.

These two could answer some of the questions left open by the recent Skrmetti decision, right? (And while you’re at it, remind us what Skrmetti was about.)

REICHARD: Well, we haven’t. These two cases come out of West Virginia—obviously for one of them—the other one comes out of Idaho, which was the first state to pass laws protecting women’s sports and reserving female sports for females. There is a court split about whether those laws are constitutional. But this really is a big deal because twenty-seven states have something similar to the laws in these two states also protecting women’s sports.

EICHER: All right, so these two could answer some of the questions, I guess, left open by the recent Skrmetti decision. And maybe while you’re at it, tell us what Skrmetti was all about.

REICHARD: Yeah, be glad to. That was a six-to-three ruling that upheld Tennessee’s law banning medical intervention on minors suffering from gender dysphoria. So this is a really big deal affecting all those other states, and there is a court split whether these laws protecting women’s sports are constitutional, which is one reason SCOTUS took the case in the first place. And then one issue that remains is whether the “T” in the LGBT is a protected class, and that is hugely important.

EICHER: All right, so the justices here are going to have to decide what standard applies—what legal standard—whether it’s strict scrutiny or something else.

REICHARD: Yeah, bingo. You can recall we have three levels of scrutiny. We have rational-basis, which is really easy to meet; intermediate, a little bit harder; and then, as you say, strict scrutiny, which is the most difficult to overcome. And what classification we’re talking about determines which level of scrutiny we use. So here the justices will have to decide which level applies.

EICHER: Okay, so we have sports, we have equal protection, we’ve got money in elections—another perennial topic for the Court.

This one is National Republican Senatorial Committee v. FEC, the Federal Election Commission. It’s a campaign-finance case about how much coordination is permitted between political parties and their candidates.

So how are the Republicans framing up the argument here?

REICHARD: Well, like a lot of cases, it’s money, money, money. That’s what this is about. And the Republicans are arguing that this is a First Amendment-violation case. They say, “Hey, why limit parties like that when we have super PACs without any spending limits at all?” Political parties and candidates can coordinate their spending. There are limits in the law about how much you can donate to a campaign individually. So that’s what the Republicans say—that makes no sense at all.

EICHER:All right, your final case, Mary. It has to do with immigration and asylum.

This one is Urias-Orellana v. Bondi. That’s Pam Bondi, the attorney general. A man from El Salvador here fled after gang violence killed two of his brothers and threatened the rest of his family. He entered the U.S. He asked for asylum.

So walk us through this case. What is the Court being asked to decide

REICHARD: Yeah, it’s a technical legal question, and that is whether appellate judges have to defer to immigration courts on what persecution means under the law, or can appellate judges decide for themselves if the facts are indeed persecution. So it has a very particular meaning. We just don’t know what it is yet.

EICHER: So ultimately this dispute is over who makes the final call here, whether it’s an immigration judge or an appellate court.

REICHARD: That’s right, and we get a lot of cases like that. The facts are pretty dazzling, but the technical legal question—not so much. And this is one of them.

EICHER: All right, and that is this week’s Legal Docket. Jenny Rough, thank you.

ROUGH: Thank you. That was fun.

EICHER: And Steve West, thank you too.

WEST: Thanks Nick.

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