The Nine (of OT20-21) closed out one of the most momentous terms in recent memory this morning, handing down the last two decisions of the term in West Virginia v. EPA (No. 20-1530) and Biden v. Texas (No. 21-954). The Chief Justice wrote for differing majorities in both cases, joined in each by Justice Kavanaugh. In West Virginia, the Court held that the Obama-era Environmental Protection Agency’s Clean Power Plan, which required coal-fired power plants to either reduce their own production of electricity or subsidize increased power generation by cleaner sources, exceeded the authority that Congress granted to the EPA in the Clean Air Act. And in Biden, the Court held that this Administration’s rescission of the Trump Administration’s “remain in Mexico” policy did not violate the Immigration and Nationality Act and was reviewable as a valid final agency action.

The Court also issued orders from its “clean-up” conference yesterday, consisting of dozens of GVRs in light of Dobbs, Bruen,and other significant decisions of the term, along with some interesting cert grants and denials. We’ll give you the highlights later, but for now we’ve got our own clean-up to attend to: summaries of the Court’s three other decisions from this week.

We’ll start with Oklahoma v. Castro-Huerta (No. 21-429), in which the Court held for the first time that the federal and state governments have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in “Indian country.” This significant expansion of state jurisdiction over crimes on indigenous land was occasioned in part by the Court’s landmark decision two years ago in McGirt v. Oklahoma (2020). There, as you’ll recall, the Court held (5-4, with Justice Gorsuch joining and writing for the Court’s then-four liberals) that Congress had never “disestablished” the Muscogee (Creek) Nation reservation upon granting statehood to Oklahoma. That meant that Oklahoma lacked jurisdiction to prosecute Jimcy McGirt, a member of the Seminole nation, for crimes committed in Indian country. It also meant that a huge swath of eastern Oklahoma (including Tulsa) remained Indian country. But what about crimes committed by non-Indians against an Indian victim—like, say, the crime committed by Victor Castro-Huerta (a non-Indian) against his 5-year-old stepdaughter (a member of the Cherokee Nation) in Tulsa (part of Indian country)? Castro-Huerta was initially convicted in Oklahoma court for criminal child neglect and sentenced to 35 years in prison. But while his appeal was pending, the Supreme Court decided McGirt, which called into question Oklahoma’s jurisdiction. Indeed, the Oklahoma Court of Criminal Appeals agreed that, under McGirt, the federal government had exclusive jurisdiction to prosecute non-Indians for crimes committed against Indians in Indian country, and therefore vacated the state conviction. (Castro-Huerta was separately prosecuted by the feds, but received a much lower sentence through a plea agreement.) However, the Supreme Court—by a different 5-4 majority (with Justice Barrett replacing Justice Ginsburg)—reversed the Oklahoma court’s decision, holding that States possess concurrent jurisdiction to prosecute non-Indians for offenses against Indians on Indian land.

Justice Kavanaugh’s majority opinion rested on the premise that Indian country (i.e., all land within the limits of any Indian reservation under the U.S. government’s jurisdiction) is part of, and not separate from, a state. Early in U.S. history, the courts treated Indian country as falling outside of a state’s borders, but that view of “distinct nations” fell out of favor by the late 1800s. A state therefore has criminal jurisdiction within its entire territory unless preempted by either federal law or principles of tribal self-government. While the Court in McGirt found that the federal Major Crimes Act preempted state criminal jurisdiction over crimes committed by Indians in Indian country, Kavanaugh concluded that no federal law (or principles of tribal self-government) preempted state criminal jurisdiction over offenses committed in Indian country by non-Indians against Indians. Although the General Crimes Act grants the federal government jurisdiction to prosecute crimes in Indian country as if the crime took place on federal territory, Kavanaugh observed that the Act does not make Indian country a federal enclave (akin to a military base or national park), so a state can exercise concurrent jurisdiction without running afoul of the Act. He further observed that Castro-Huerta’s territorial argument must be wrong because otherwise the state could not prosecute even crimes committed by non-Indians against other non-Indians in Indian country—that is to say, all crimes committed in Tulsa and other parts of eastern Oklahoma. Kavanaugh also rejected preemption by Public Law 280, which affirmatively grants certain states jurisdiction to prosecute state-law offenses committed by or against Indians in Indian country (and allows other states to opt for that jurisdiction with tribal consent). While Castro-Huerta viewed that law as serving no purpose if states already had the inherent power to prosecute someone like Castro-Huerta, Kavanaugh disagreed because that law has no preemptive language, addresses much broader issues than just non-Indian crimes against Indians, and had already been construed by the Court as not divesting states of pre-existing and otherwise lawfully assumed jurisdiction. Finally, Kavanaugh rejected the argument that a state’s exercise of concurrent jurisdiction to prosecute non-Indians would unlawfully infringe upon tribal self-government. Unlike the federal government, Kavanaugh reasoned, a tribe normally has no authority to prosecute non-Indians even for crimes committed against Indians on tribal land; therefore, recognizing that states share concurrent jurisdiction with the federal government was not an undue infringement of tribal sovereignty. And permitting states to prosecute non-Indians for offenses against Indians does not diminish the federal interest in protecting Indian victims, since the federal government can also exercise jurisdiction. (The majority left for another day the question whether a state can exercise criminal jurisdiction over a crime committed in Indian country by an Indian against a non-Indian.)  Quite the contrary, Kavanaugh argued, precluding states from exercising criminal jurisdiction in cases like this one had the effect of “treat[ing] Indian victims as second-class citizens,” which the Court “decline[d] to do.”

Justice Gorsuch—the author of McGirt—issued a long and scathing dissent (nearly twice the length of the majority opinion), joined by Justices Breyer, Sotomayor, and Kagan. In his view, the majority had it backwards: “Native American Tribes retain their sovereignty unless and until Congress ordains otherwise.” The question, therefore, is not whether any federal legislation preempted Oklahoma’s jurisdiction, but rather whether any federal legislation conferred it in the first place. Gorsuch chafed at the notion that states have “inherent” sovereign power to prosecute crimes on tribal reservations unless preempted: “Tribes are not private organizations within state boundaries. Their reservations are not glorified private campgrounds. Tribes are sovereigns.” Therefore, he argued (quoting a celebrated decision of the Marshall Court), the criminal laws of the states “can have no force” on tribal members within tribal bounds unless and until Congress clearly ordains otherwise. And none of the “many, detailed, and clear” laws that Congress has adopted concerning criminal jurisdiction on tribal lands confers on states the authority that Oklahoma seeks here. Gorsuch rejected as “a mockery of all of Congress’s work” in enacting tribal legislation the majority’s suggestion that Oklahoma enjoys “inherent” authority to try crimes committed on tribal land within its borders. And he railed against the majority’s failure to “grapple with the backdrop rule of tribal sovereignty.” That backdrop requires a presumption that tribes exercise jurisdiction to the exclusion of other sovereigns unless Congress says otherwise. And while Congress, through Public Law 280, has permitted states to exercise concurrent jurisdiction when tribes consent, Oklahoma had not obtained tribal consent here. Because Congress has not authorized Oklahoma to prosecute crimes in Indian country, Oklahoma lacked authority to prosecute crimes against tribal members within a tribal reservation.

State sovereignty was also at issue in Torres v. Texas Dep’t of Public Safety (No. 20-603), where the Court held that a state’s sovereign immunity cannot block a private suit that was specifically authorized by a federal statute enacted pursuant to Congress’s war powers. Article I gives Congress the power to “raise and support Armies” and to “provide and maintain a Navy.” Pursuant to those war powers, Congress passed the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). Under that statute, service members who had been employed by a State are allowed to return to their jobs or to an equivalent job if they became disabled during their military service. The statute specifically authorizes a private damages action in state court if a State refuse to accommodate a service member as required by the statute. Le Roy Torres, a former state trooper who became disabled while serving in Iraq, sued the Texas Department of Public Safety under USERRA after the Department refused to give him a position equivalent to his previous job, which he could no longer fulfill due to his disability. The Department moved to dismiss on the basis of sovereign immunity. Though the trial court denied the motion, a state appellate court reversed, holding that Congress generally lacks authority under Article I to subject nonconsenting states to private suits in state court.

The Supreme Court reversed. Writing (for the last time) for the Court, and joined by the other liberals plus the Chief and Kavanaugh, Justice Breyer observed that, while courts generally cannot exercise jurisdiction over nonconsenting states, there are exceptions to the rule. As relevant here, the Court has previously recognized that states may be sued if “the structure of the original Constitution itself” reflects a waiver of sovereign immunity, as where the states agree that their sovereignty must yield to a particular federal power as part of the “plan of the [Constitutional] Convention.” The Court’s precedents have recognized this “plan of the Convention” or “structural waiver” of state sovereign immunity with respect to Congress’s Article I power over bankruptcy matters (Central Va. Comm’y College v. Katz (2005)) and, just last term, with respect to Congress’s eminent domain power (PennEast Pipeline Co. v. New Jersey (2021)). As Breyer saw it, PennEast articulated a test for finding a structural waiver of state sovereign immunity: Whether the federal power at issue was “complete in itself, and the States consented to the exercise of that power–in its entirety–in the plan of the Convention.” If so, the States implicitly waived their sovereign immunity by ratifying the Constitution and committing not to “thwart” or “frustrate” that core, “complete in itself,” federal power. Applying that test, Breyer concluded that Congress’s war power was complete in itself and a critical part of the plan of the Convention. Several different provisions in the Constitution give sweeping powers to Congress to provide for the common defense, and other provisions divest States of the power to engage in war, enter treaties, and keep troops and ships in time of peace. Moreover, the Convention addressed those issues against the backdrop of the Articles of Confederation, which failed to enable the federal government to raise an army and effectively provide for the national defense. Citing that history, the Breyer concluded that the Constitution fundamentally altered the relationship between the state and federal governments with respect to war powers. “The States ultimately ratified the Constitution knowing that their sovereignty would give way to national military policy.” With respect to USERRA in particular, Justice Breyer was motivated by practical concerns as well. States that opposed a particular war could refuse to re-employ service members and “Congress would be powerless to authorize private reinstatement suits against those States.” That would undermine the ability to attract and retain people to serve in the military and would compromise national security and the common defense. Therefore, upholding Texas’s sovereign immunity from a suit specifically authorized by USERRA “would permit States to thwart national military readiness.” It would also seem anomalous for the Court to conclude that Congress’s bankruptcy and eminent-domain powers override State sovereign immunity, but its war powers do not.

That second concern motivated a short concurrence by Justice Kagan, who wrote to acknowledge that she had previously held that the theory adopted in Katz of a “structural” or “plan of the Convention” waiver of sovereign immunity was “good for one clause only” — Article I’s bankruptcy clause. Consistent with that view, she dissented when PennEast extended that analysis to Congress’s eminent domain power. But she accepted that PennEast was now controlling. In determining whether States had waived sovereign immunity, PennEast focused on whether federal power at issue was “complete in itself.” Congress’s war powers clearly passed that test. “[W]ar powers–more than any other power, and surely more than eminent domain–were ‘complete in themselves’” and at “heart of the Convention’s plan.” 

Justice Thomas led the way for the dissenters, joined by Alito, Gorsuch, and Barrett. He emphasized that sovereign immunity was a core component of the Constitution and critical to its adoption by the States. For 200 years, the Court found States had waived sovereign immunity only as to suits brought by other states or suits by the United States in federal court. In the last 20 years, only two Court decisions found that the States, in ratifying the Constitution, had waived sovereign immunity to suits brought by private parties. Those suits involved Congress’s bankruptcy power in Katz and its eminent domain power in PennEast. Thomas, who dissented in both earlier cases, saw no basis to reach the same conclusion with respect to the war powers authority Congress exercised in authorizing private suits in USERRA. In Thomas’s view, the Court’s decision in Alden v. Maine (1999) properly held that Congress’s Article I powers “do no include the power to subject nonconsenting States to private suits for damages in state courts,” and the Court should not have veered off-course in Katz and PennEast. But those cases could at least be justified by the unique nature of federal bankruptcy and the eminent-domain power. These powers were not only “complete in [themselves,” but also “inextricably intertwined” with federal jurisdiction. By contrast, private damages actions are not inextricably intertwined with Congress’s war powers. Justice Thomas warned that the “complete in itself” test would logically encompass other Article I powers, contravening prior Court decisions finding that States did not waive their sovereign immunity sovereign immunity with respect to other Article I powers. In the end, Justice Thomas rejected that the majority’s “complete in itself” analysis” as unfounded and having “the certainty and objectivity of a Rorschach test.”

Finally, for today, in Ruan v. United States (No. 20-1410), the Court held that, to convict a doctor for dispensing a controlled substance in violation of the Controlled Substances Act, the Government must prove beyond a reasonable doubt that the doctor knew that the prescription was not for a legitimate medical purpose. The Controlled Substances Act, 21 U.S.C. §841, provides in relevant part that, “[e]xcept as authorized…it shall be unlawful for any person knowingly or intentionally…to manufacture, distribute, or dispense…a controlled substance” under the Act. In the two cases together before the Court, defendant Xiulu Ruan had been convicted and sentenced to 20 years, while defendant Shakeel Kahn had been convicted and sentenced to 25 years. Although the Court did not address the particulars of their cases, a quick look at the Eleventh and Tenth Circuit opinions below shows that each had been accused of running a large scale opioid “pill mill.” Each of the defendants were convicted after the jury was given instructions that stopped short of requiring the Government to prove that the defendant knew that his prescriptions were not authorized, and the appellate courts upheld the convictions.

The Court unanimously vacated the decisions below. Six Justices, led by Breyer, began with the presumption that criminal statutes require proof of scienter, most often knowledge or intent. Even though §841’s general scienter language of “knowingly or intentionally” did not directly follow the authorization clause, it was appropriate to apply the knowledge standard to the authorization clause as well. The Court reasoned that “a strong scienter requirement helps to diminish the risk of ‘overdeterrence,’” which is particularly important given that “we expect, and indeed usually want, doctors to prescribe the medications that their patients need.” The Court cited several examples where a “knowledge” requirement in one part of a criminal statute was applied to another where it wasn’t directly referenced: that the use of food stamps was “not authorized”; that a sexually explicit video involved the “use of a minor”; and that the defendant had a “status” (for example, was a felon or in the country unlawfully) that made unlawful to possess a gun. The Court rejected the Government and concurring Justices’ argument that §855 of the Controlled Substances Act provides that the Government need not “negative,” i.e., refute “any exemption or exception . . . in any complaint, information, indictment, or other pleading” or “in any trial,” and that “the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person claiming its benefit.” Even though the Government does not have to allege the lack of an exception in an indictment, or “go[] forward” with it at trial, if the defendant “go[es] forward” and satisfies the initial burden of production by producing evidence of authorization, the burden must shift back to the government to prove knowledge of lack of authorization. The Court tried to assuage the Government’s concerns that the knowledge requirement would allow “bad-apple doctors to escape liability by claiming idiosyncratic views about their prescribing authority” by emphasizing that the Government could prove knowledge through circumstantial evidence, including by reference to objective criteria such as “legitimate medical purpose” and the “usual course” of “professional practice.”

Justice Alito, joined by Justice Thomas in full, and Justice Barrett in large part, concurred in the judgment only. In the view of these justices, the authorization clause is not an element of the offense, but rather an affirmative defense, which under the common law, the defendant has the burden to prove. The majority’s reasoning that the authorization clause is “sufficiently like an element” begs the question of whether other affirmative defenses might warrant similar treatment, and “leaves prosecutors, defense attorneys, and the lower courts in the dark.” Alito criticized the majority for appearing to “craft[] a special rule for doctors,” with potential unknown ramifications for other offenders and offenses. Rather, he argued, doctors should bear the burden to show that their prescriptions were “authorized,” defined by regulation to be “for a legitimate medical purpose . . . in the usual course of . . . professional practice.” In a section joined only by Thomas, Alito opined that even if §841 defendants could shift the burden of persuasion regarding authorization to the government, the government should only have to prove lack of authorization by a preponderance of the evidence, not beyond reasonable doubt.  

That’s all for today. We’ll be back soon to wrap up the term.

Tadhg and Dave