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Reposted by Sean McBride

Julian Davis Mortenson @jdmortenson.bsky.social · 30/04/2026

v nice piece mapping potential challenges to HHS actions targeting gender affirming case — lots in here for statutory interpretation people to chew on

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Sean McBride @seanmmcbride.bsky.social · 18/12/2025

True...not necessarily. But the court has increasingly liked to limn the logical limits of any holding that frontally answers the QP. Alito's colloquy with Slaughter's attorney is an example of that.

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Sean McBride @seanmmcbride.bsky.social · 18/12/2025

6e) And would represent the proverbial “gun to the head” for the states that Chief Justice Roberts warned against in his majority opinion in NFIB v Sebelius.

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Sean McBride @seanmmcbride.bsky.social · 18/12/2025

6d) But even if one accepts the facially absurd proposition that clear notice was given as to rule proposed by HHS, it would clearly be coercive of both the hospitals and the states.

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Sean McBride @seanmmcbride.bsky.social · 18/12/2025

6c) Here the Trump administration would be using the same power to limit say New York or Rhode Island’s choices to expand non-discrimination protections beyond the floor set by federal civil rights statutes in an analogous manner.

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Sean McBride @seanmmcbride.bsky.social · 18/12/2025

6b) Justice Alito, in his dissent in Moyle, decried the government’s attempt to use its Spending Clause authority to “limit Idaho’s choices about what conduct to criminalize”,

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Sean McBride @seanmmcbride.bsky.social · 18/12/2025

6) Beyond this, many states have gender identity non-discrimination statutes in place for public accommodations and patient care. Nowhere in the Soc Security Act did Congress clearly reserve the right, or given states notice of its intention, to rollback local non-discrimination statutes.

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Sean McBride @seanmmcbride.bsky.social · 18/12/2025

5d) Here, not only did Congress not make clear its intention to allow CMS, through rulemaking, to ban hospitals from providing whole categories of treatment, in Section 1801 it explicitly disavowed such proscriptive powers.

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Sean McBride @seanmmcbride.bsky.social · 18/12/2025

5c) On the first prong, the Supreme Court in Pennhurst State School & Hospital v. Halderman held that “if Congress intends to impose a condition on a grant of federal money, it must do so unambiguously”.

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Sean McBride @seanmmcbride.bsky.social · 18/12/2025

5b) As part of such a contract, Congress must give states and private parties (e.g. the hospitals) 1) clear notice as to their obligations under the contract and 2) not unduly coerce them into acceptance of such obligations.

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Sean McBride @seanmmcbride.bsky.social · 18/12/2025

5a) Further, because the Medicare and Medicaid amendments were passed pursuant to Congress’ Article I spending clause authority, the Courts treat hospitals and states that participate in these programs as having entered into a contract with CMS.

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Sean McBride @seanmmcbride.bsky.social · 18/12/2025

4) A Trump CoP banning GAC for minors would also arguably violate the Administrative Procedure Acts prohibition against arbitrary and capricious regulation

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Sean McBride @seanmmcbride.bsky.social · 18/12/2025

3c) regardless of whether the “service is covered under the state” Medicaid plan for adults. GAC fits within multiple benefit categories. And every major US healthcare organization has endorsed GAC for minors as a medically necessary standard of care to “ameliorate” gender dysphoria.

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Sean McBride @seanmmcbride.bsky.social · 18/12/2025

3b) This provision requires states that sign on to Medicaid to cover, for beneficiaries under the age of 21, any service that fits within one of the benefit categories and is medically necessary to "correct or ameliorate" a physical or mental health condition “discovered by the screening service”,

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Sean McBride @seanmmcbride.bsky.social · 18/12/2025

3a) Title XIX of the SSA contains within it an Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) provision.

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Sean McBride @seanmmcbride.bsky.social · 18/12/2025

2) Second, Title 18 of the Social Security Act, in its first section (1801), forbids “any Federal officer or employee” from “exercis[ing] any supervision or control over the practice of medicine or the manner in which medical services are provided”. This rule CLEARLY violates that.

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Sean McBride @seanmmcbride.bsky.social · 18/12/2025

Exactly!! 1) from a statutory interpretation standpoint, this rule cannot stand. When you look text that confers to HHS the ability to promulgate CoPs, this rule would violate ejusdem generis and the major questions doctrine (which one could view as a canon of construction). Long thread...

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Sean McBride @seanmmcbride.bsky.social · 18/12/2025

Thanks, Julian! FWIW, since we're being forced to draw a line and anchor it in the Constitution, I completely agree with you. But I'm a congressional maximalist on this question as well. I believe the statutory authority to restrict the Presidential right of removal is plenary and unfettered.

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Sean McBride @seanmmcbride.bsky.social · 18/12/2025

Not so sure about that. I do think you have to reckon with that question (where does Congress's ability to condition removal stop?) as a logical consequence of the argument made by Slaughter. My answer is the same as Julian's: the constitution permits Congress/Pres to do as they please here :)

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Sean McBride @seanmmcbride.bsky.social · 18/12/2025

Ha! I come from a family of lawyers and lawmakers, so I try to keep up :)

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Sean McBride @seanmmcbride.bsky.social · 18/12/2025

In other words, short of saying congress has plenary authority to restrict removal, what’s the most constitutionally principled way to answer Alito's oral argument question of: could congress restrict the presiden’s ability to remove secretary x? What about secretary y?

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Sean McBride @seanmmcbride.bsky.social · 18/12/2025

If one had to draw a line beyond which Congress could not cabin a president’s removal authority, is there constitutional context or structure that best shows us where that line should sit?

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Sean McBride @seanmmcbride.bsky.social · 17/12/2025

Question: looking at the text of Article I, do you see a bright -line restriction on Congress’s ability to require for cause removal should it so choose?

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Sean McBride @seanmmcbride.bsky.social · 09/12/2025

For instance, imagine how an excessively strict non-delegation stance could’ve hampered Treasuries response to the Great Recession.

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Sean McBride @seanmmcbride.bsky.social · 09/12/2025

This is the kind of ”black swan” logic of legal analysis that constrains the other branches in all sorts of predictable and unpredictable ways. Holdings that intentionally zero out the risk of extreme tail events prevent the govt from adequately responding to far more common real world exigencies

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Sean McBride @seanmmcbride.bsky.social · 09/12/2025

2/n Putting aside appointments, his substantive span of control is limited to foreign affairs (e.g. treaty making) and defense (commander in chief clause). These depts, and only these, clearly execute on those powers. @jdmortenson.bsky.social #SupremeCourt

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Sean McBride @seanmmcbride.bsky.social · 09/12/2025

1/n In Slaughter, the Chief brings up this question. From a purely textual standpoint, I'm not sure why the answer isn't simply DOD, Veterans Affairs, State, and maybe Homeland Security. Article 2, Section 2 lays out a short list of the explicit powers conferred on the President.

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Sean McBride @seanmmcbride.bsky.social · 05/07/2025

Proud to March with @mcbride.house.gov in the Hockessin 4th of July Parade. Was a family affair.

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Reposted by Sean McBride

Evan Bernick, a finite mode with a smol hooman and a lorg floof @evanbernick.bsky.social · 28/06/2025

This enables the court to avoid embracing the gov’s arg that universal injunctions can never be issued. And there’s a “how convenient” to this. You know that right-wing judge who keeps issuing nationwide injunctions re: abortion? Well, he’s interpreting a different statute, the APA. Doesn’t apply.

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Sean McBride @seanmmcbride.bsky.social · 06/05/2025

I’m going to owe my kids “curse word” money when they read this article. Proud, as always, of Aunt SaSa :) @mcbride.house.gov t.co/SILhbs74fp

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Reposted by Sean McBride

Congresswoman Sarah McBride @mcbride.house.gov · 28/03/2025

Trump signed an executive order late last night that illegally strips workers of their collective bargaining rights. This will impact over one million Americans. I’ll support all efforts to stop this egregious assault on labor unions.

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Sean McBride @seanmmcbride.bsky.social · 29/03/2025

3/n "The Children's Health Defense (RFK Jr's vaccine shop) is hereby solely empowered to regulate the approval of vaccines that are reasonable and necessary for the public health, notwithstanding any provision of the FDCA"

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Sean McBride @seanmmcbride.bsky.social · 29/03/2025

2/n A hypothetical for legal sky @jdmortenson.bsky.social @joshchafetz.bsky.social. Is there any element of constitutional text or structure (putting aside original meaning) that would prevent the following statutory delegation to a private entity?... .

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Sean McBride @seanmmcbride.bsky.social · 29/03/2025

1/n Oral arguments in Consumer Research didn't sound favorable for fans of "public" non-delegation. But with a Congress currently enthrall to the executive, we should want checks on Congress' ability to delegate legislative authority, even if it desires the delegation.

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Reposted by Sean McBride

Marin K. Levy @marinklevy.bsky.social · 28/03/2025

The firm’s statement is worth reading:

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Reposted by Sean McBride

Chris Geidner @chrisgeidner.bsky.social · 22/03/2025

This is the correct response.

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Reposted by Sean McBride

Congresswoman Sarah McBride @mcbride.house.gov · 21/03/2025

INCOMING: My first weekly newsletter, the McBride Memo, hit inboxes this morning! Each week, I'll share 5 quick things I'm working on to deliver for Delawareans — the perfect read to go with your morning cup of coffee. Sign up at mcbride.house.gov!

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Sean McBride @seanmmcbride.bsky.social · 16/03/2025

Does arranging and paying for the imprisonment in El Salvador of persons formerly on US soil who are merely accused (but not convicted) of criminal activity within the United States encroach on these individuals' 5th and 6th amendment rights? @stevevladeck.bsky.social #legalsky

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Sean McBride @seanmmcbride.bsky.social · 14/03/2025

Josh makes short work of the “unitary” executive theory. As a convinced congressional maximalist, was a great listen. Would also encourage folks to check out @jedshug.bsky.social’s “Vesting” and @jdmortenson.bsky.social’s “The Executive Power Clause”. Case closed. @mcbride.house.gov

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Sean McBride @seanmmcbride.bsky.social · 22/02/2025

This was the date set in the end of year (2024) appropriations bill passed by the prior Congress and signed by President Biden. Congress was always going to have to provide for a statutory extension. We knew this in December. I’m confident Congress will act.Our seniors deserve it. #medsky

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Sean McBride @seanmmcbride.bsky.social · 09/02/2025

4/n The probability of NIH being able to effectuate this change in the near term seems to me to be de minimis. #medsky #legalsky

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Sean McBride @seanmmcbride.bsky.social · 09/02/2025

3/n Moreover, there are compelling arguments that this "diktat by tweet" violates both the APA (5 U.S.C. § 553) and, to the extent that granted monies represent a property interest (they do), the due process clause of the 5th Amendment.

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Sean McBride @seanmmcbride.bsky.social · 09/02/2025

2/n @stuartbuck.bsky.social lays out a compelling case and identifies the key statute that makes what NIH is attempting to do ultra vires (Title II, Division H, Section 224 of Public Law 118-47). The plaint text of Section 224 forbids this type of adjustment. goodscience.substack.com/p/indirect-c...

goodscience.substack.com

Indirect Costs at NIH . . .

I wasn’t planning on spending part of a Saturday writing about cost accounting principles and the like, but NIH-world was hit with a doozy of a policy announcement on Friday night:

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Sean McBride @seanmmcbride.bsky.social · 09/02/2025

1/n Reasonable people can differ as to what the % threshold should be for indirects. But while our nation remains committed to the rule of law, there are bright line statutory and constitutional bars to unilaterally changing that threshold via Tweet (charitably described as sub-regulatory guidance)

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Sean McBride @seanmmcbride.bsky.social · 08/02/2025

He's asking to replace EPIC with this

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Sean McBride @seanmmcbride.bsky.social · 08/02/2025

<son rummaging through my iphone with full storage so he can find apps to delete and install a game> Son: Dada! Can I delete EPIC? Me: Son: Can I? Me: Um.... #medsky

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