Category: News Feeds

It
was
just
last
month
that
Brett
Kavanaugh
gave
his
explanation
for
why
it
was perfectly
okay
for
Homeland
Security
goons
to
profile
brown
people and
detain
them
based
on
nothing
more
than
the
color
of
their
skin.
While
his
cowardly
colleagues
in
the
majority
on
that
shadow
docket
decision
refused
to
explain
their
thinking,
Kavanaugh
actually
wrote
a
concurrence
that
was
so
out
of
touch
with
reality
as
to
be
embarrassing.
But
at
least
it
was
an
explanation.

The
key
bit
from
him
that
has
stood
out
is
this:

Importantly,
reasonable
suspicion
means
only
that
immigration
officers
may
briefly
stop
the
individual
and
inquire
about
immigration
status. If
the
person
is
a
U.
S.
citizen
or
otherwise
lawfully
in
the
United
States,
that
individual
will
be
free
to
go
after
the
brief
encounter.
Only
if
the
person
is
illegally
in
the
United
States
may
the
stop
lead
to
further
immigration
proceedings.

It’s
this
weird,
privileged,
out-of-touch
statement
that
if
ICE
or
CBP
stop
you
for
being
brown,
they’ll
let
you
go
as
soon
as
you
show
them
that
you’re
an
American
citizen.
Of
course,
we
knew
at
the
time
that
wasn’t
true.
Hell,
there
were
details
that
Kavanaugh
ignored
in
that
very
lawsuit,
which
Justice
Sotomayor
called
out
in
her
dissent.
But
literally
in
this
very
lawsuit
was
the
documentation
of
how
it
wasn’t
so
simple:

To
give
just
one
example, Plaintiff
Jason
Brian
Gavidia
is
a
U.S.
citizen
who
was
born
and
raised
in
East
Los
Angeles and
identifies
as
Latino.
On
the
afternoon
of
June
12,
he
stepped
onto
the
sidewalk
outside
of
a
tow
yard
in
Montebello,
California,
where
he
saw
agents
carrying
handguns
and
military-style
rifles.
One
agent
ordered
him
to
“Stop
right
there”
while
another
“ran
towards
[him].” The
agents
repeatedly
asked
Gavidia
whether
he
is
American—and
they
repeatedly
ignored
his
answer:
“I
am
an
American.” The
agents
asked
Gavidia
what
hospital
he
was
born
in—and
he
explained
that
he
did
not
know
which
hospital.
“The
agents
forcefully
pushed
[Gavidia]
up
against
the
metal
gated
fence,
put
[his]
hands
behind
[his]
back,
and
twisted
[his]
arm.”
An
agent
asked
again,
“What
hospital
were
you
born
in?”
Gavidia
again
explained
that
he
did
not
know
which
hospital
and
said
“East
L.A.” He
then
told
the
agents
he
could
show
them
his
Real
ID.
The
agents
took
Gavidia’s
ID
and
his
phone
and
kept
his
phone
for
20
minutes.
They
never
returned
his
ID.

Drexel
law
professor Anil
Kalhan
quickly
dubbed these
bullshit
pretextual
stops
of
US
citizens
as
“Kavanaugh
stops”
and
the
name
has
stuck.

While
there
is
an
effort
to challenge
these
further
in
court,
for
now
the
goon
squad
known
as
ICE
is
unleashed
even
more
than
usual.
We
now
know
that there
are
at
least
170
US
citizens who
have
been
held
by
immigration
officials,
and
there
are
probably
even
more
not
yet
accounted
for.

It
feels
like
every
day
we
hear
about
another
few:

https://embed.bsky.app/embed/did:plc:bz3idwc6jcvidvyb476l2cqk/app.bsky.feed.post/3m47aacheo22c?id=44700577306563627&ref_url=https%253A%252F%252Fwww.techdirt.com%252F2025%252F10%252F29%252Fthe-kavanaugh-stops-legacy-50-days-170-detained-citizens-zero-answers%252F

These
Kavanaugh
stops
are
a
stain
on
the
American
concept
of
civil
liberties
and
due
process,
and
they
should
be
a
stain
on
Brett
Kavanaugh’s
legacy.
Legal
journalist
Chris
Geidner
just
ran
a
piece
on 50
days
of
Kavanaugh
stops,
and
what
a
shameful
moment
this
is
of
American
bigotry.

Geidner
has
directly
submitted
questions
to
Kavanaugh
to
see
how
he
feels
about
all
of
these
Kavanaugh
stops
that
show
his
claim
of
“brief
encounters”
with
law
enforcement
were
bullshit:

I
asked
Justice
Kavanaugh
on
October
14,
“Do
you
have
any
comment
on
the
ICE
stop
of
Maria
Greeley,
a
U.S.
citizen,
who
was
reportedly
stopped,
ziptied,
and
told
she
didn’t
‘look
like’
a
‘Greeley’
despite
being
a
U.S.
citizen?“

On
both
occasions,
I
also
asked
Kavanaugh
whether
he
still
thinks
he
was
correct
when
he
wrote
that
these
stops
are
“typically
brief”
and
that
all
of
this
is
fine
because
“individuals
may
promptly
go
free
after
making
clear
to
the
immigration
officers
that
they
are
U.
S.
citizens
or
otherwise
legally
in
the
United
States.”

Finally,
I
asked
Kavanaugh
if
he
was
aware
of
the
“Kavanaugh
stop”
terminology
and
whether
he
had
any
comment
on
it.

[….]

So,
I
asked
Justice
Kavanaugh
on
October
16,
“Do
you
have
any
comment
on
the
Pro
Publica
report
that
found
‘more
than
50
Americans
who
were
held
after
[immigration]
agents
questioned
their
citizenship’
during
2025.
‘They
were
almost
all
Latino,’
per
the
report.“

In
addition
to
the
other
questions
previously
raised,
I
also
asked
Kavanaugh
whether
“the
possibility
of
after-the-fact
‘excessive
force’
claims”
is
“a
sufficient
answer
to
this
ongoing,
regularly
occurring
problem?”

Did
you
guess
what
happened?
Of
course
you
did!

I
have
not
received
a
response
from
him
or
his
chambers.

You
can
already
see
the
horrific
legacy
that
is
forming
around
the
concept
of
Kavanaugh
stops.
This
is
a
legacy
that
doesn’t
go
away
easily.
It’s
like the
Dred
Scott
decision,
the Korematsu
decision,
or Buck
v.
Bell.
Supreme
Court
decisions
that
nearly
everyone
now
looks
back
on
in
horror.

These
are
all
horrible,
hateful
decisions
by
out-of-touch
bigots,
who
can’t
even
fathom
a
world
in
which
those
less
fortunate
themselves
even
matter,
and
thus
their
rights
and
dignity
are
barely
given
a
second
thought.

The
Supreme
Court
still
has
a
chance
to
fix
this,
since
Kavanaugh
stops
were
only
defined
by
Justice
Kavanaugh
in
a
shadow
docket
concurrence.
While
those
other
cases
all
took
decades
for
everyone
to
realize
how
fucked
up
they
were,
this
one
we
can
see
in
real
time
what
a
stain
it
is
for
anyone
who
believes
that
America
respects
basic
civil
liberties
like
due
process
and
concepts
like
probable
cause.

But,
for
now
at
least,
that
stain
should
stick
to
Brett
Kavanaugh.
He’s
justified
this.
He’s
insisted
these
kinds
of
stops
are
no
big
deal,
even
as
there
was
evidence
then,
and
even
with
more
mounting
evidence
now,
that
immigration
officials
don’t
give
a
shit
if
you
are
an
American
citizen.
If
you’re
darker
skinned,
they
can
treat
you
like
shit,
lock
you
up,
beat
you
up,
ignore
your
protestations
and
even
evidence
of
American
citizenship.

It
is
a
deep,
dark
stain
on
America
as
a
supposed
land
of
freedom,
and
it
should
be
tied
up
with
Brett
Kavanaugh’s
legacy
forever.

The
Kavanaugh
Stop’s
Legacy:
50
Days,
170+
Detained
Citizens,
Zero
Answers

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Halloween
is
always
a
terrific
time
for
members
of
the
legal
community
—
especially
law
students
—
who
are
able
to
celebrate
the
holiday’s
festivities
with
costumes
of
note.
As
usual,
we
want
to
see
your
creativity
in
action.

For
the
sixteenth
year
in
a
row,
we
here
at
Above
the
Law
are
soliciting
legally
themed
costumes
for
our
annual
Halloween
contest.
We’re
continually
impressed
with
how
creative
lawyers
and
law
students
can
be
when
they
take
their
noses
out
of
their
books.

Here
are
some
of
the
winning
looks
from
the
past
few
years
of
the
contest:
the Donald
J.
Trump
College
of
Law (2016), Brett
Kavanaugh’s
calendar
and
his
beer (2018), Ruth
Baby
Ginsburg (2020),
and Warhol’s
Soup
Law (2023).

Please email
us or
text
us
(646-820-8477)
your
pictures
and
then
we’ll
vote
on
the
winner
of
our
annual
competition.
Please
send
us
your
submissions
as
soon
as
you
can.
We’re
all
looking
forward
to
judging
you!

---

Staci
Zaretsky is
the
managing
editor
of
Above
the
Law,
where
she’s
worked
since
2011.
She’d
love
to
hear
from
you,
so
please
feel
free
to

email
her
with
any
tips,
questions,
comments,
or
critiques.
You
can
follow
her
on Bluesky, X/Twitter,
and Threads, or
connect
with
her
on LinkedIn.

Numerous
efforts
have
been
made
at
the
federal
level
to
crack
down
on
the
opaque
business
practices
of
pharmacy
benefit
managers,
from
a

lawsuit
by
the
Federal
Trade
Commission
to

bills
in
Congress.
But
no
definitive
action
has
been
taken
yet.

In
the
absence
of
federal
progress,
states
are
stepping
in
to
fill
the
gap.
Just
recently,
California
Governor
Gavin
Newsom

signed
a
law
(SB
41)
that
will
regulate
PBMs.
It
has
several
provisions,
including
banning
spread
pricing.
This
is
when
a
PBM
charges
a
health
plan
more
for
a
drug
than
it
pays
the
pharmacy
and
keeps
the
difference
as
profit. 

“I
am
pleased
to
sign
SB
41,
a
bill
that
will
lower
health
care
costs
for
all
Californians.
This
bill
…
represents
the
most
aggressive
effort
in
the
country
to
lower
prescription
drug
costs.
California
continues
to
lead
the
way
in
lowering
costs,
increasing
transparency,
and
ensuring
that
the
savings
are
passed
on
to
payers
and
consumers,”
Newsom
said
in
a
statement.

PBMs
have
come
under
a
lot
of
scrutiny
recently
due
to
their
vertical
integration
with
insurers
and
practices
that
inflate
drug
prices.
The
top
three
PBMs
—
CVS
Caremark,
Cigna’s
Express
Scripts
and
UnitedHealth
Group’s
Optum
Rx
—
control
about
80%
of
the
prescription
drug
market.

Recently,
Arkansas
passed
a
law
that
would

ban
PBMs
from
owning
pharmacies.
Although
advocates
applauded
this
law,
a
federal
judge

blocked
it
from
being
enacted,
arguing
that
it
violates
the
Commerce
Clause.
This
says
that
states
cannot
pass
laws
that
unfairly
hurt
or
discriminate
against
businesses
from
other
states.
Arkansas
has
appealed
this
decision,
and
some
advocates
are
still
hopeful
the
law
will
stand.

Several

other
states
have
also
taken
steps
to
rein
in
PBMs.

• Massachusetts
  enacted
  a
  law
  in
  January
  that
  requires
  PBMs
  to
  submit
  detailed
  rebate
  and
  pricing
  data
  and
  obtain
  a
  state
  license.
• Missouri
  passed
  a
  law
  in
  March
  that
  bans
  PBMs
  and
  insurers
  from
  refusing
  to
  pay
  providers
  for
  physician-administered
  drugs
  and
  requires
  fair
  reimbursement
  based
  on
  contractually-specified
  rates.
• North
  Dakota
  amended
  a
  law
  in
  March
  that
  requires
  PBMs
  to
  receive
  a
  license
  from
  the
  state
  commissioner’s
  office
  instead
  of
  a
  certificate
  of
  authority.
• Utah
  enacted
  a
  law
  in
  March
  that
  requires
  PBMs
  to
  offer
  plan
  designs
  that
  pass
  manufacturer
  rebates
  directly
  to
  enrollees
  and
  bans
  spread
  pricing.

While
states
are
moving
prescription
drug
pricing
reform
along,
at
least
one
expert
still
hopes
to
see
federal
support.

“We’re
seeing
plans
do
their
own
thing.
We’re
seeing
a
lot
of
disruptive
PBMs
out
in
the
market.
We’re
slowly
seeing
the
states
taking
actions.
It
would
really
be
great
to
see
the
federal
government
advocating
for
this
as
well,”
declared
Kathy
Chang,
head
of
trade
relations
at
Blue
Shield
of
California,
a
nonprofit
health
insurance
company
covering
about
6
million
Californians. 

The
California
law

The
new
PBM
law
in
California
has
several
key
provisions. 

• It
  bans
  spread
  pricing.
• It
  ensures
  all
  rebates
  being
  negotiated
  with
  the
  manufacturer
  are
  passed
  on
  to
  the
  patient.
• It
  requires
  PBMs
  to
  be
  licensed
  by
  the
  Department
  of
  Managed
  Health
  Care.
• It
  prohibits
  PBMs
  from
  steering
  patients
  to
  their
  own
  pharmacies
  and
  away
  from
  non-affiliated
  pharmacies.
• It
  requires
  a
  pass-through
  pricing
  model,
  in
  which
  PBMs
  can
  only
  be
  paid
  a
  clear,
  flat
  fee
  for
  their
  services
  —
  not
  a
  fee
  that
  changes
  based
  on
  the
  list
  price
  of
  drugs
  or
  rebates.

“If
you
break
it
down
in
plain
and
simple
English,
it
really
ends
the
hidden
fees
and
ensures
that
everybody
in
the
state
of
California
is
able
to
see
the
fair
and
true
price
at
the
pharmacy
counter
so
they
can
make
informed
decisions
on
what
is
best
for
their
health,
but
most
importantly,
their
wallet,”
Chang
said.
“It’s
a
huge
step
in
reforming
PBM
practice,
and
it
brings
a
genuine
price
transparency
to
the
system
that
really
was
not
available
for
quite
some
time.”

The
National
Community
Pharmacists
Association
(NCPA)
is
in
favor
of
several
of
the
provisions.
This
includes
requiring
PBMs
to
be
licensed
by
the
Department
of
Managed
Health
Care
(which
brings
more
state
oversight)
and
preventing
PBMs
from
steering
patients
to
their
own
pharmacies
versus
non-affiliated
independent
pharmacies.

A
recent

report
by
the
FTC
found
that
the
big
three
PBMs
are
directing
patients
to
their
affiliated
pharmacies
over
independent
pharmacies.
For
example,
CVS
Caremark
may
steer
patients
to
a
local
CVS
pharmacy.

NCPA’s
director
of
state
government
affairs,
Joel
Kurzman,
said
California’s
law
is
a
“great
first
start”
and
will
have
a
“meaningful
impact.”
However,
there
is
additional
reform
the
organization
hopes
to
see,
including
requiring
PBMs
to
reimburse
pharmacies
in
the
commercial
market
at
the
rate
of
National
Average
Drug
Acquisition
Cost
plus
a
professional
dispensing
fee.
This
was
initially
included
at
some
point
in
the
legislative
process,
but
was
eventually
removed
from
SB
41.

Unsurprisingly,
a
lobbying
group
for
PBMs
came
out
against
California’s
law.

“It
is
a
failure
of
the
Newsom
administration
to
fall
for
Big
Pharma’s
ploy
to
blame
their
high
list
prices
on
others
and
to
undermine
the
very
mechanisms
that
actually
lower
prescription
drug
costs,”
the
Pharmaceutical
Care
Management
Association
said
in
a
statement.
“Nothing
in
SB
41
will
lower
drug
costs
for
Californians.
In
fact,
the
legislation
will
increase
drug
costs
for
everyone
in
California.”

Federal
action
needed

When
asked
what
she
hopes
Congress
and
other
states
take
away
from
California’s
new
law,
Chang
pointed
to
the
need
for
broader
drug
pricing
reform.
State
and
federal
policy
is
necessary
to
make
a
difference
in
this
space,
but
health
plans
can
also
take
action,
she
said.
In
January,
Blue
Shield
of
California
launched
its
new

pharmacy
management
model,
in
which
it
teamed
up
with
five
different
companies
—
Amazon
Pharmacy,
Cost
Plus
Drugs,
Abarca,
Prime
Therapeutics
and
CVS
Caremark
—
for
its
prescription
drug
benefit.
Previously,
CVS
Caremark
was
its
sole
pharmacy
benefit
manager.

An
executive
at
a
health
tech
company
focused
on
prescription
drugs
also
argued
that
national
reform
is
needed.

“We’ll
see
more
states
experiment,
…
but
drug
pricing
crosses
state
lines
—
so
long-term
stability
will
require
federal
harmonization.
The
focus
should
be
consistency,
not
50
different
definitions
of
transparency.
We
also
need
to
move
from
static
regulation
to
dynamic
pricing
transparency
—
using
AI-driven
platforms
that
route
prescriptions
based
on
cost
and
coverage
in
real
time,”
said
Jeff
Park,
president
of
Waltz
Health.

In
the
meantime,
Congress
and
other
states
have
something
to
learn
from
California’s
law,
Kurzman
said.
This
law
took
about
two
years
to
come
through
and
went
through
several
iterations.

“I
like
to
think
that
everyone
everywhere
can
appreciate
the
resilience
that
was
shown
in
California.
…
The
message,
I
think,
can
be
of
resilience,
that
you
can
get
back
up
and
restrategize,
rework,
keep
the
conversations
going,
keep
educating,
and
you
can
eventually
progress,”
he
said.

Photo:
megaflopp,
Getty
Images

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