Solicitor General Elizabeth Prelogar began today's oral argument in FDA v. AHM with standing, emphasizing the plaintiffs' argument for Article III standing is based upon an attenuated chain of causation that fails to satisfy the requirements of Article III standing. This was a good start. In turning to the consequences of allowing this suit to go forward, I think it was an error to focus exclusively on the consequences for reproductive choice and women seeking to terminate pregnancies. Allowing standing in this case poses the risk of opening the door to suits against all manner of FDA decisions, such as decisions to approve vaccines (among other things). Courts have generally rejected standing in such suits. Is that really something the Court wants to change?
Asking the first question (as has become traditional), Justice Thomas wants to know, if not these plaintiffs, who could sue to challenge the FDA's approval (a question that Justice Alito picks up later). This is a good question, but there is no constitutional requirement that Article III standing must exist for someone. Put another way, there can be cases in which no one has Article III standing to challenge the federal government's failure to regulate someone else, particularly where (as here) Congress has not created a cause of action or purported to authorize such suits. Under Lujan, the standing inquiry can be eased when Congress has created a procedural right or authorized suit, but it has never done so here. As Justice Thomas notes in response, the plaintiffs may have a stronger argument relying upon some of the Court's associational standing cases (such as Havens Realty, for instance), but I doubt the Court really wants to rely upon that outlier decision. (Indeed, some of us thought the Court was poised to cut back on Havens Realty in Acheson Hotel.)
Pressed on this point by Justice Alito, SG Prelogar effectively acknowledges that there may not be any specific individual who can sue the FDA for revising ts regulation of mifepristone. The theory the plaintiffs have pressed, she notes, does not come within miles of the requirements of Article III standing as the Court has articulated them in prior cases. Whether there is some other theory out there that might work is not a question the government has to answer.
Asked to distinguish Havens Realty by Justice Barrett, SG Prelogar notes that in Havens Realty there was direct harm to the organization, due to its contractual obligations and the like. In other words, Havens Realty was a far narrower decision than some lower courts have assumed (which is something we saw in the emoluments clause litigation). Prelogar is correct on this point. Havens Realty is not the open door for associations that some circuit courts have turned it into.
While most of the early questioning of SG Prelogar focuses on standing, Justice Alito turns to the merits. Prelogar effectively responds to AHM's claim that FDA failed to adequately consider the potential combination of regulatory changes it made. Then Justice Alito raises the Comstock Act: Should the FDA have considered the statute? No, Prelogar answers, because the Comstock Act is not in the FDA's lane. This is precisely correct. The FDA does not enforce Comstock (and Comstock was clearly unenforceable prior to the Dobbs decision). Put another way, the Department of Justice could enforce the Comstock Act in a future administration, but the FDA was not obligated to focus upon it. Moreover, the FDA relied upon an Office of Legal Counsel memorandum on the enforceability of the Comstock Act.
Justice Kagan asks SG Prelogar whether it is still true that this case marks the first time in which a federal court has second-guessed the FDA's decision to approve a product. It is. No doubt this is largely due to standing. [Note, however, some medical groups did successfully sue the FDA for failing to regulate vaping products more aggressively, which led to some of the FDA's current problems in that area.] The question here is not whether the FDA ever makes mistakes–it certainly does!–but whether these plaintiffs have standing to bring this case.
Justices Barrett, Kagan, and Kavanaugh all raise the issue of whether a doctor's conscience objection is sufficient for standing in a case like this. SG Prelogar maintains that federal law protects the legitimate conscience objections of doctors who object to performing abortions or providing abortion-inducing medications. Moreover, the FDA's loosening of the regulation of mifepristone does not implicate such conscience claims (nor does the remedy that the plaintiffs seek–regulating mifepristone more stringently–does not align with the injury claimed).
Justice Jackson asks an interesting question about whether the Court's resolution of the pending Corner Post could affect this sort of litigation. The Fifth Circuit had found that AHM's claims against the initial 2000 approval of mifepristone was too late. Might an aggressive ruling in Corner Post make such claims viable in the future? Prelogar concedes it might, but notes that the federal government might have other arguments against allowing such stale claims to proceed.
Jessica Ellsworth, Danco's lawyer is now up, and the questioning here focuses a bit more on the merits than standing. Right off the bat, she is challenged on the Comstock Act by Justice Thomas. There are interesting questions here about whether Danco is potentially liable for violating the Comstock Act by distributing mifepristone, but that is not an issue in this case.
Justice Jackson asks Ellsworth about the problems of judges reviewing expert agencies. While it's fair to note that the district court bollixed some of the technical issues below, this is not a helpful line of questioning. There is no reason the FDA should be exempt from traditional arbitrary and capricious review. and such review (done properly) does not require courts to second-guess the scientific judgments of expert agencies. Rather, it calls upon courts to make sure that agencies have engaged in reasoned decision-making.
Justice Thomas begins the questioning of AHM's attorney, Erin Hawley, about standing, focusing on whether AHM's claimed associational harm is anything more than having to spend money to challenge a government decision it does not like. Hawley's answer adopts the broad conception of Havens Realty embraced by many lower courts, and does not appear to satisfy Justice Thomas. Hawley's argument, Thomas suggests, would make standing "easy to manufacture."
Asked about conscience objections, Hawley contests whether existing conscience protections are sufficient for objecting doctors, but is not able to identify anything in any of the declarations demonstrating that doctors have been unable to raise conscience objections where called for. She does note, however, that the federal government may not have been entirely consistent in how it has applied such protections under statutes such as EMTALA. Justice Gorsuch jumps in to underline the point that insofar as conscience harms are alleged, the appropriate remedy would be to provide direct conscience protections, not to restrict the sale or marketing of a pharmaceutical nationwide. (Cue Gorsuch's oft-repeated concerns about the "rash of universal injunctions"—concerns that Hawley does not seem to want to address directly.) Hawley's argument here is, in effect, that the emergency nature of ER work makes raising conscience objections impracticable, and therefore the only relief that can remedy the harm is to limit the use of mifepristone nationwide.
Justice Kagan returns to standing, honing in on the probabilistic nature of AHM's standing claims (an issue I discussed here). Hawley attempts to parry by noting that FDA has acknowledged the possibility of adverse events or needs for doctors in emergency rooms to help ensure patient safety, but as Kagan notes, this does not solve the problem. While AHM has identified specific plaintiffs, none of their declarations show the sort of imminent injury traceable to the FDA's decision to loosen the regulation of mifepristone. Note that even if such claims could be shown, it would be difficult to show that such harms are traceable to the FDA's modification of the regulation of mifepristone, as opposed to mifepristone being available. Other justices pick up on this line of questioning, focusing on what is (and is not) in the declarations.
Justice Alito helps Hawley out by pointing out that the Court has, at times, been a bit lax in enforcing its standing (as in the census case). Hawley responds by leaning heavily into some of the probabilistic claims. She overstates what the record shows (e.g. by suggesting the findings of particular small-gauge studies show what the nationwide effects of changing the regulation of mifepristone will be). I wonder whether any of the justices caught this (or will call her on it).
Justice Kagan presses Hawley on whether any of the harms alleged can be traced to the 2016 and 2021 revisions. Hawley's response is that the revisions increased the likelihood of harm. As I discussed in this morning's post, this is precisely the sort of claim that Clapper and Summers rejected, as it is not clear how the alleged actual or imminent harms claimed by AHM can be traced to the increased quantum of risk allegedly caused by the FDA's loosening of the rules governing mifepristone.
The SG's rebuttal is quite strong and (in my view) strikes a better balance on the various arguments and issues (given the audience that is this Court) than did the tail end of her intro. It really hits standing hard, and emphasizes the systemic effects on FDA regulation more than the reproductive rights angle. This is the sign of a good advocate: Making the arguments that will appeal to the justices, not those that appeal to the administration's political constituencies.
Overall, it seems the justices are quite skeptical of standing here (as they should be). While some might be concerned that the Court is not consistent in its approach to standing (as Justice Alito was in California v. Texas) it seems like there are likely to be five votes to dismiss this case on standing grounds–as it should.
Note that if this case is dismissed on standing, a future presidential administration would still be able to reconsider the existing regulation of mifepristone or enforce the Comstock Act. Moreover, dismissing this case on standing grounds would do little to buttress the (weak) arguments some are making that federal approval of mifepristone preempts state laws restricting or prohibiting mifepristone's use within their borders. It is also possible that standing to pursue this sort of lawsuit could be facilitated by the enactment of a citizen suit provision authorizing suits against the FDA for improperly approving or revising the regulation of prescription drugs.
Put another way, if this case is resolved on standing grounds, it will be an important standing decision, but it will resolve very little about the broader issue of abortion and the use or availability of mifepristone.
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For those interested, here are my prior blog posts about this case and the issues it raises:
The post Mifepristone in the Supreme Court—Comments on Oral Argument (Updated) appeared first on Reason.com.
]]>The biggest challenge for AHM, the group challenging the FDA, is demonstrating that federal courts have jurisdiction to hear its claims. AHM would like the FDA to regulate mifepristone more stringently, or prohibit its use altogether. In effect, AHM is arguing that the FDA needs to regulate someone else (in this case, mifepristone manufacturers and prescribers) more stringently than it has done. As always in standing cases, asking the courts to force the government to treat a third party differently can be a heavy lift.
AHM's standing claim is based on the argument that AHM's members are injured when women who take mifepristone face complications and seek assistance in emergency rooms. Having to observe and treat such complications causes a cognizable injury, AHM argues, because providing treatment in such cases makes doctors feel complicit in abortion, violates their conscience, and may even expose them to liability.
Assuming that actions by third parties (in this case, the FDA) that force individuals to do their jobs (in this case, anti-abortion ER doctors treating patients) constitutes a cognizable injury for Article III purposes, AHM faces the larger problem of being unable to identify specific doctors who will face specific instances. Rather, they are claiming that the risk of these things has increased because mifepristone is available. The problem here is that AHM is alleging precisely the sort of speculative injuries the Court held were insufficient in Clapper v. Amnesty International. Thus allowing this case to go forward would, in effect, allow groups of doctors to challenge any agency decision that could conceivably result in an increase in injuries among an identifiable group of people. AHM tries to address this problem by citing the comment in Clapper footnote 5 that standing can sometimes be shown "based on a 'substantial risk' that the harm will occur," yet manages to conveniently truncate the quote every time it this argument is made. What footnote 5 actually says is that: "In some instances, we have found standing based on a 'substantial risk' that the harm will occur, which may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm." That latter requirement—costly anticipatory actions to prevent harm—is not met here.
In effect, AHM is making the sort of probabilistic injury claim that the Supreme Court routinely rejects (as in Clapper and Summers). As I explained in this post critiquing the Fifth Circuit's acceptance of this argument:
[The court] tries to argue that an injury to one of the plaintiffs is certain because there are so many women that have taken mifepristone, and complications are so common, that it is inconceivable that some of AHM's members will not be called upon to provide emergency room care. This stacks the deck though in the way it presents the numbers, however. For instance, it notes that five million women have taken the drug since 2000. Based on the FDA's acknowledgement that in two-to-seven percent of cases will involve potential complications from the drug not fully working, this means there have been between 100,000 to 350,000 cases in which women have needed additional treatment. But note that these numbers are for a twenty-plus-year period. On an annual basis, this represents 5,000 to 17,000 cases. Even making the demonstrably false assumption that all of these cases require a visit to one of the thousands of emergency rooms in the United States, it is far from a "statistical certainty" that one of the plaintiff doctors will handle one of these cases, as these cases represent a tiny fraction of the over 130 million emergency department visits each year.
Were that not enough, AHM's standing hurdle is even greater because, as the case reaches the Supreme Court, AHM's claims have been narrowed. As initially filed, AHM sought to argue that the FDA wrongly approved mifepristone in the first place. Accordingly, AHM argued that it faced a reasonable likelihood of harm from the availability of mifepristone on the market. In making this argument, it could use all instances of mifepristone complications nationwide to help make its case. Yet AHM cannot make such arguments any more.
In the proceedings below, the U.S. Court of Appeals for the Fifth Circuit (correctly) held that AHM's challenges to the the FDA's initial approval of mifepristone were made too late, so all that is at issue is the FDA's slight loosening of the rules governing mifepristone's administration in 2016 and 2021. This means in order to demonstrate standing AHM needs to demonstrate injury to one of its members based upon the additional complications caused by these regulatory changes. Complications that would or could have happened prior to the 2016 and 2021 revisions are not enough. From my prior post:
It is well established that standing is not dispensed in gross. As the Supreme Court has repeatedly reaffirmed, a plaintiff "must demonstrate standing for each claim he seeks to press and for each form of relief that is sought." Standing to challenge one agency action does not necessarily establish standing to challenge another. More specifically, even if the plaintiffs can establish that they will suffer an actual or imminent injury from one FDA action (such as the 2000 approval of mifepristone) that does not mean that they will suffer an actual or imminent injury from another FDA action (such as the 2016 or later revisions to the rules governing mifepristone).
All of this should be fatal to AHM's claims for Article III standing. Whatever one thinks of mifepristone or the FDA's conduct regulating this product over the past 25 years, AHM has not demonstrated that it gets to invoke the jurisdiction of Article III courts to challenge the FDA's decision.
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I will have more to say after the oral argument. In the meantime, here are my prior blog posts about this case and the issues it raises:
The post Can Emergency Room Doctors Sue the FDA for Failing to Regulate Mifepristone More Aggressively? appeared first on Reason.com.
]]>Here was the question presented portion of the petition filed on behalf of the Murphy Company:
The Antiquities Act of 1906 authorizes the President, "in [his] discretion," to declare that "historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest" found on federal land are "national monuments" and to "reserve parcels of land as a part of the national monuments" so long as those parcels are "confined to the smallest area compatible with the proper care and management of the objects to be protected." 54 U.S.C. 320301. Three decades after that Act's passage, in the Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act of 1937 (O&C Act), Congress reserved certain federal lands in Oregon for "permanent forest production," mandating that "the timber thereon shall be sold, cut, and removed in conformity with the princip[le] of sustained yield" timber production. 43 U.S.C. 2601. In 2017, President Obama invoked the Antiquities Act to add O&C Act timberlands to an existing Oregon national monument established to protect biological diversity, see Proclamation 9564, 82 Fed. Reg. 6,145 (Jan. 12, 2017)—despite the fact that lands that are part of that monument may not be used in "provision of a sustained yield of timber," Proclamation 7318, 65 Fed. Reg. 37,249, 37,250 (June 9, 2000).
The question presented is whether the Antiquities Act authorizes the President to declare federal lands part of a national monument where a separate federal statute reserves those specific federal lands for a specific purpose that is incompatible with national-monument status.
Although the case received a decent amount of interest from amici (five in support of certiorari, and one joining the federal government in opposition), it appears that four justices were not interested in hearing the case.
Justice Kavanaugh expressed an interest in the case, however. Today's orders list noted that both Justice Kavanaugh and Justice Gorsuch (the one justice to have served in a western state) would have voted to grant certiorari. As I have noted several times before, Justice Kavanaugh quite regularly notes his willingness to grant certiorari when his colleagues are not so convinced.
While the Court showed no interest in examining the Antiquities Act today, I suspect they may wish to consider the scope of executive branch authority under this statute eventually, particularly since recent administrations have been reasonably aggressive invoking it.
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]]>At one level, the federal government's decision to seek Supreme Court review is what one might expect. There is a circuit split on whether the FDA acted in an arbitrary and capricious fashion when it refused to consider certain materials submitted with PMTAs and departed from previous guidance it had given the industry. Most circuits to hear such claims turned them away. The Fifth Circuit (along with the Eleventh Circuit) did not. Certiorari would thus be warranted to resolve the circuit split and remove any cloud over the FDA's continuing ability to review (and deny) PMTAs for vaping products. Without Supreme Court review, vaping product manufacturers would have every incentive to seek review of any PMTA denials in the Fifth and Eleventh Circuits, and this could undermine the FDA's regulatory authority.
At another level, I suspect there was some discussion within the Departments of Justice and Health & Human Services as to whether this case provides the best vehicle for Supreme Court review of the FDA's regulation of vaping products. The vaping companies in this case may seem like appealing targets, but the record here includes multiple opinions excoriating the FDA's failure to comply with administrative law norms. For this reason, one might have thought the FDA would have preferred to see the Supreme Court accept certiorari in a case in which the FDA prevailed below, and without a dissenting opinion.
Up until this point, it has been my impression that the FDA has been somewhat strategic in deciding which cases to litigate and where. In particular, the agency has been more than happy to defend PMTA denials against relatively small (often regional) vaping product manufacturers, while it has strategically avoided going to court against larger players, particularly those with top-notch DC appellate representation. Thus the FDA voluntarily agreed to reconsider its decision to reject PMTAs from Turning Point and Juul, but went to court against smaller fluid manufacturers of startups. The FDA, thus far, has also been more willing to approve tobacco-flavored vaping products produced by larger companies (often companies with a long history in the tobacco industry) while rejecting PMTAs from just about everyone else. To date, the agency has yet to approve a vaping product with any flavor profile other than tobacco.
Triton Distribution (the name of the vaping company owned by W&WL) is a mid-sized vaping fluid manufacturer, but the case is sure to attract attention from other companies fighting to keep their products on the market. Some of the larger players (including companies that also make cigarettes) may be happy to sit on the sidelines, however, or even take the FDA's side, particularly if their own products have made it through the FDA's regulatory gauntlet. Government prohibition of competing products is a sure-fire way to maintain market share.
While the Supreme Court does not grant certiorari all that often, this would seem like a strong candidate. The circuit split, and its ongoing effects on the FDA's ability to administer the PMTA approval process makes eventual Supreme Court review inevitable, and if this is the case the DOJ pushes to tee up this issue, this is likely the case the Court will accept.
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]]>Whatever the merits of such briefs in theory, some have raised questions about their value in practice. In a 2012 Journal of Legal Analysis article, Professor Richard Fallon suggested that too many professor "compromise their integrity" by joining amicus briefs "too promiscuously." In 2001, Professor Ward Farnsworth reached a similar conclusion, and suggested that law professors "should not sign documents unless they would be ready to defend them orally in the tribunals to which the documents are being presented." (My co-bloggers Orin Kerr and Ilya Somin also weighed in on some of these questions in 2010.)
As the number of amicus briefs has increased, I suspect the influence such briefs have on the courts has declined—and I suspect this is particularly true for those briefs filed by interest groups (which often file briefs for fundraising or promotional purposes) and large groups of academics. While a brief submitted by a few well-known experts in their field of expertise may well matter, I doubt many judges are impressed by relatively generic submissions filed on behalf of dozens of academics–and with good reason.
In some fields, it is rather common for professors to sign on to just about any academic brief that argues for their preferred outcome, without regard for what arguments are actually made or whether those arguments align with the academic signatories' scholarly views. In some cases professors will sign on even when they know little about the subject matter–such as, say, what a given state's law has to say about a complex matter–and when they have engaged in no independent study of the issue. In still other cases, academics may solicit signatories for briefs sight unseen–and some apparently sign under such conditions. (Indeed, I saw one such solicitation just within the past month.)
If the value of an academic amicus brief is to provide academic expertise, then it would seem to me to be quite unethical for academics to sign their names to briefs that do not reflect their academic expertise. And insofar as some (many?) academics do not adhere to such a principle, it should not surprise us if this lessens the value of such briefs overall, as judges learn to cast aside what are little more than well-formatted policy statements.
In my own case, I have never been willing to sign on to amicus briefs that did not address matters within my expertise and that would satisfy the Farnsworth standard, but I have become even more reluctant to sign such briefs over time. These days, as a general rule, I will not sign a brief unless I helped to write it or had some role in shaping the arguments, unless by serendipity a brief aligns with my previously well-considered views (which may happen if, say, the brief author drew from my published work). It is not that I do not have opinions about how I would like many cases to be decided. It is rather that there is no reason a court should care what I think about a case unless I can say, without hesitation, that I have studied the matter to a degree the judges have not. Is this approach too stingy? Perhaps, but I am inclined to think it is the right one.
From Professor Fallon's 2012 article:
With respect to questions of professional identity, many of today's law professors want to be valued as scholars on a par with professors on faculties of arts and sciences who devote their careers to the sometimes lonely search for truth or honest insight. Yet many also aspire to achieve an immediate influence on public events in ways that few members of faculties of arts and sciences could dream of. In seeking to realize the latter ambition, we law professors may face temptations to tailor our arguments to our audiences, to overstate the strength of the support for our conclusions, and to omit to say what would reduce our impact.
The vocation of a law professor is not exclusively that of a scholar. We can, and should, play multiple roles. In doing so, however, we should remember that when we attempt to influence public matters, we almost inevitably seek to trade on the credibility that we—and our predecessors and colleagues—have earned in the roles of scholar and teacher. Those roles create obligations of responsibility, trustworthiness, and confrontation. If emerging norms in the signing of scholars' briefs betray expectations of scholarly responsibility, trustworthiness, and confrontation that we have sought to promote, or seek to capitalize upon, then we should hold ourselves to higher standards
The post The Ethics of Law Professor Amicus Briefs Revisited appeared first on Reason.com.
]]>Although Guernica proclaims that it is "a home for singular voices, incisive ideas, and critical questions," this essay apparently crossed the line. The article has been removed from the journal's website. In its place reads the message: "Guernica regrets having published this piece, and has retracted it. A more fulsome explanation will follow."
[Update: It appears the article was de-published after multiple members of Guernica's all-volunteer staff resigned over the decision to publish the essay. For explanations of why some editorial and other staff felt they had to resign, see here, here, here, and here.]
Fortunately, there is an archived version of the piece available here. Give it a read and then ponder how this piece could be so objectionable that it needed to be de-published–not merely criticized or challenged, but actually removed.
A current fundraising appeal on the Guernica website declares: "At Guernica, we've spent the last 15 years producing uncompromising journalism." After de-publishing the essay, that appeal may need to be taken down too.
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]]>At issue in Barclift was whether a consumer whose personal information was shared by a creditor with a third party, in violation of the Fair Debt Collection Practices Act, suffers an injury that is sufficiently "concrete" to satisfy the requirements of Article III. Judge Arianna Freeman, joined by Judge Julio Fuentes, concluded that such an "injury," standing alone, is insufficient, even though it violates federal law. Judge Matey dissented, arguing that (at least under the Supreme Court's decision in TransUnion v. Ramirez), Barclift's injury was sufficient.
Judge Matey's opinion concurring in part, dissenting in part, and concurring in the judgment begins:
"Standing" is a term found in every first-year law school outline, but absent from the text of the Constitution, Foundingera discussions, English and Roman history, and the reported decisions of our federal courts throughout most of the twentieth century. Ever shifting, the judicially created standard of modern standing confuses courts, commentators, and plaintiffs like Paulette Barclift who are told their claim is insufficiently "concrete" to decide. Barclift says Keystone Credit Services shared private information about her physical and financial health with "an untold number of individuals" at a mailing facility close to her home. App. 62. Can she file a lawsuit for her alleged harms? Congress said yes, inserting a private right of action in the Fair Debt Collection Practices Act (FDCPA). And the Supreme Court has explained that the "disclosure of private information" has been "traditionally recognized as providing a basis for lawsuits in American courts." TransUnion LLC v. Ramirez, 594 U.S. 413, 425 (2021). I conclude that Barclift's "intangible harms" are sufficiently "concrete" for standing because they bear "a close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts." Id.
But Barclift loses because the majority treats TransUnion's footnote six as talismanic, turning dictum into precedent and, along the way, adopting the jot-for-jot reading of caselaw that the majority's opinion purports to reject. Respectfully, I cannot pour that much meaning into a note, particularly where the result only adds to the incoherence of modern standing. So I dissent in part and in the judgment because, while standing "needs a rewrite," as the requirement stands, Paulette Barclift is due her day in court. Id. at 461 (Kagan, J., dissenting).
While applying TransUnion, Judge Matey does not spare it from criticism. He writes:
That decision [TransUnion] marked the first time the Supreme Court required a private individual to make some threshold showing of concrete harm, even though he was seeking to vindicate a private right. See 594 U.S. at 453–54 (Thomas, J., dissenting) ("Never before has this Court declared that legal injury is inherently insufficient to support standing.") . . . . And the yardstick chosen to measure concreteness—the close-relationship test—swapped the text and history of Article III for unspecified and undetermined markers in American "history and tradition." TransUnion, 594 U.S. at 424 (majority opinion). A plaintiff's allegations need not "exact[ly] duplicate" the elements of a common law cause of action, only resemble the "harm[s] associated with" those causes of action. Id. at 432–33.
This illustrates a judicial test "displac[ing] . . . controlling, nonjudicial, primary texts." OI Eur. Grp. B.V. v. Bolivarian Republic of Venez., 73 F.4th 157, 175 n.22 (3d Cir. 2023) (citation omitted). . . . Leaving us to work with only a "metaphor for the law" instead of the law itself. Mitchel de S.-O.-l'E. Lasser, "Lit. Theory" Put to the Test: A Comparative Literary Analysis of American Judicial Tests and French Judicial Discourse, 111 Harv. L. Rev. 689, 768 (1998)).
But work with the shadow we must, for "unless we wish anarchy to prevail within the federal judicial system," precedent must be followed "by the lower federal courts no matter how misguided the judges of those courts may think it to be." Hutto v. Davis, 454 U.S. 370, 375 (1982) (per curiam). So I move to the best reading of TransUnion.
Judge Matey is far from the only federal appellate judge to express concerns about standing in recent years. TransUnion, in particular does not appear to be too popular among many judges.
Most prominently, Judge Kevin Newsom of the U.S. Court of Appeals for the Eleventh Circuit has called out the problems with existing standing jurisprudence and its application. In several recent concurring opinions Judge Newsom has expressed the concern that current standing doctrine is incoherent, difficult to apply, and insufficiently grounded in constitutional text. (He addressed this issue, among other things, in his Sumner Canary lecture at CWRU.)
Judge Newsom has not only criticized existing doctrine. He has also suggested an alternative: Ditching the requirement of "injury-in-fact" while simultaneously (re)invigorating Article II limitations on private party standing to enforce federal law. It is an interesting and provocative proposal that is receiving attention. For those interested, I analyze and evaluate Judge Newsom's proposal for "standing without injury" in a forthcoming Wake Forest Law Review article.
One thing that is particularly interesting about the judicial critiques of modern standing doctrine is that so many of them come from conservative judges. Modern standing law, particularly as grounded in Justice Scalia's Lujan opinion, has been generally viewed as a conservative jurisprudential project. Yet, as illustrated by Justice Thomas's dissent in TransUnion, conservative justices and judges are no less likely than their liberal colleagues to raise questions about the way current doctrine is applied if not also the extent to which that doctrine has a proper textual home in Article III. Whether or not concerns about existing standing law produces a realignment, as suggested by Richard Re, it is quite likely that we will see significant developments in standing law in the next few Supreme Court terms.
The post Does the Law of Standing "Need a Rewrite" After TransUnion? appeared first on Reason.com.
]]>Judge Robinson wrote the majority opinion in Do No Harm v. Pfizer, and was joined by Judge Jacobs. Her opinion begins:
Defendant-Appellee Pfizer Inc. ("Pfizer") sponsors a Breakthrough Fellowship Program (the "Fellowship") that seeks "to advance students and early career colleagues of Black/African American, Latino/Hispanic, and Native American descent." J. App'x 45. Do No Harm, a nationwide membership organization, filed suit against Pfizer on behalf of its members, alleging that Pfizer unlawfully excludes white and Asian-American applicants from the Fellowship in violation of federal and state laws.
When Do No Harm moved for a preliminary injunction, the district court dismissed the suit for lack of subject matter jurisdiction. Do No Harm v. Pfizer Inc., 646 F. Supp. 3d 490, 517–18 (S.D.N.Y. 2022). In particular, the district court concluded that Do No Harm lacked Article III standing because, among other reasons, it failed to identify a single injured member by name. Id. at 504–05.
The decisive issues in this appeal are (1) whether, for purposes of establishing Article III standing under the summary judgment standard applicable to a motion for a preliminary injunction, Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011), an association that relies on injuries to individual members to establish its standing must name at least one injured member; and (2) whether, if a plaintiff fails to establish Article III standing in the context of a motion for a preliminary injunction, the district court must dismiss their claims without prejudice for lack of standing, or whether the court should simply deny the preliminary injunction and allow the case to proceed in the ordinary course if the plaintiff alleged sufficient facts to establish standing under the less onerous standard applicable at the pleading stage.
We conclude that the district court did not err in determining that Do No Harm lacked Article III standing because it did not identify by name a single member injured by Pfizer's alleged discrimination, and that the district court properly dismissed Do No Harm's claims after reaching that conclusion.
According to Judge Robinson, the conclusion that an association must identify at least one injured member by name (at least at the summary judgment stage or when seeking a preliminary injunction) follows from the logic of Supreme Court precedents (such as Summers v. Earth Island Institute) rejecting associational standing based upon the statistical probability of harm.
From the opinion:
A naming requirement makes sense as an element of associational standing. An association that premises its standing on harm to its members must demonstrate that those members suffered an injury in fact that is concrete and particularized and actual or imminent, as opposed to conjectural or hypothetical. Lujan, 504 U.S. at 560. In this case, it requires proof that members are ready and able to apply to the challenged program but for its allegedly discriminatory criteria. Gratz, 539 U.S. at 262. Although a name on its own is insufficient to confer standing, disclosure to the court of harmed members' real names is relevant to standing because it shows that identified members are genuinely ready and able to apply, and are not merely enabling the organization to lodge a hypothetical legal challenge. A member's name does not merely check a box; it is a demonstration of the sincerity of the member's interest in applying for a fellowship. These are quintessential Article III standing concerns. . . .
Moreover, a naming requirement flows from the rationale underlying associational standing. We allow an association to sue on behalf of its members only when those individuals "would otherwise have standing to sue in their own right." Hunt, 432 U.S. at 343. While procedures exist to allow parties to proceed anonymously to the public when certain conditions are met, . . . we do not allow parties to remain anonymous to the court. . . . Although the caselaw requiring plaintiffs to identify themselves to the court typically turns on an analysis of federal procedural rules rather than Article III, it would nevertheless be incongruous, especially at the summary judgment stage, to allow an association to rest its standing on anonymous member declarations when we would not allow those members, as individual parties, to proceed anonymously to the court in their own right.
Judge Wesley wrote separately, concurring in part and concurring in the judgment. While he agreed that Do No Harm lacks standing, he did not agree that the anonymity of affected members of the association is the reason why. His separate opinion begins:
The same day it filed this case, Do No Harm chose to seek an "extraordinary" remedy. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). It asked the district court to freeze Pfizer's Breakthrough Fellowship program— and reconfigure the Fellowship's selection process—through a preliminary injunction. Do No Harm did so knowing that it faced a demanding burden to prove its connection to the harm alleged, that it lacked a developed factual record, and that its members who claimed injury used pseudonyms. It also knew that none of its members had applied for the Fellowship in the first place.
I agree with the majority that Do No Harm lacks Article III standing. I fully endorse two important aspects of the majority's standing framework: (1) once it moved for a preliminary injunction, Do No Harm had to prove standing under a summary judgment standard, see Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011); and (2) when Do No Harm failed to meet its heightened standing burden, the proper action was to dismiss the case.
But I part ways with the majority as to why Do No Harm lacks standing. In my view, Members A and B did not show an imminent injury from the Fellowship's selection process. As our precedents require, neither member provided sufficient evidence to show they were "ready" to apply to the Fellowship. That is the fundamental way that we analyze standing; it suffices to end this case. The majority passes on that analysis, and instead holds that to check the standing box, an organizational plaintiff relying on injury to some of its members must also provide those members' actual names. We have no basis to impose this new constitutional rule.
I concur in the judgment affirming dismissal, but I cannot concur in full because the majority pronounces an unfounded "real name" test for associational standing. That is an unfortunate ruling for organizations everywhere.
UPDATE: It is worth noting that the majority distinguishes Speech First v. Shrum (which Eugene blogged about here), on the grounds that Speech First concerned what was necessary for standing at the pleading stage.
The post Does Anonymity Defeat Associational Standing? appeared first on Reason.com.
]]>Judge Rao's opinion in Doe v. Apple begins:
Cobalt is an essential metal for producing the lithium-ion batteries that power modern electronics. Nearly two-thirds of the world's cobalt comes from the Democratic Republic of the Congo ("DRC"), where some of the metal can be traced to informal mining by Congolese nationals digging with primitive tools in unsafe conditions. Many of these informal miners are children, pressured into work by extreme poverty.
This lawsuit seeks to impose liability on five American technology companies for "forced labor" used for informal cobalt mining in the DRC. The plaintiffs, former cobalt miners injured in mining accidents and their representatives, sued the companies under the Trafficking Victims Protection Reauthorization Act of 2008 ("TVPRA"). That statute makes it unlawful to "participat[e] in a venture" that engages in forced labor. The plaintiffs allege the technology companies participated in a venture with their cobalt suppliers by purchasing the metal through the global supply chain. The district court dismissed the suit for a variety of reasons, including lack of Article III standing and failure to state a claim.
Although we conclude that the plaintiffs have standing to pursue their damages claims, they have failed to state a claim for relief. Purchasing an unspecified amount of cobalt through the global supply chain is not "participation in a venture" within the meaning of the TVPRA. We therefore affirm the district court's dismissal of the complaint under Rule 12(b)(6).
The post D.C. Circuit Rejects Conflict Mineral Suit Against Apple and Other Tech Companies appeared first on Reason.com.
]]>Some Democrats close to the Biden administration and high-profile lawyers with past White House experience spoke to West Wing Playbook on condition of anonymity about their support for Sotomayor's retirement. But none would go on the record about it.
They worried that publicly calling for the first Latina justice to step down would appear gauche or insensitive. Privately, they say Sotomayor has provided an important liberal voice on the court, even as they concede that it would be smart for the party if she stepped down before the 2024 election. There is a firm belief that a Senate controlled by Republicans will simply not confirm a Biden-picked Court nominee should he run and win reelection. Should a vacancy occur under a Republican run Senate with a Republican in the White House, it could expand the current 6-3 conservative majority into an even more powerful 7-2 split.
But getting party leaders to speak more openly about those realities has been difficult.
Party leaders may be unwilling to broach the topic, but Josh Barro isn't. He writes:
Sonia Sotomayor will turn 70 this June. If she retires this year, Biden will nominate a young1 and reliably liberal judge to replace her. Republicans do not control the Senate floor and cannot force the seat to be held open like they did when Scalia died. Confirmation of the new justice will be a slam dunk, and liberals will have successfully shored up one of their seats on the court — playing the kind of defense that is smart and prudent when your only hope of controlling the court again relies on both the timing of the deaths or retirements of conservative judges, plus not losing your grip on the three seats you already hold.
But if Sotomayor does not retire this year, we don't know when she will next be able to retire with a likely liberal replacement. It's possible that Democrats will retain the presidency and the Senate at this year's elections, in which case the insurance created by a Sotomayor retirement won't have been necessary. But if Democrats lose the presidency or the Senate this fall (or both) she'll need to stay on the court until the party once again controls both. That could be just a few years, or it could be a while — for example, Democrats have previously had to wait 14 years from 1995 to 2009, and 12 years from 1981 to 1993.2 In other words, if Sotomayor doesn't retire this year, she'll be making a bet that she will remain fit to serve through age 82 or 84 — and she'll be taking the whole Democratic Party coalition along with her in making that high-stakes bet.
If Democrats lose the bet, the court's 6-3 conservative majority will turn into a 7-2 majority at some point within the next decade. If they win the bet, what do they win? They win the opportunity to read dissents written by Sotomayor instead of some other liberal justice. This is obviously an insane trade. Democrats talk a lot about the importance of the Court and the damage that has been done since the court has swung in a more conservative direction, most obviously including the end of constitutional protections for abortion rights. So why aren't Democrats demanding Sotomayor's retirement?
Some may worry that Senate Republicans would seek to block the confirmation of a replacement. I doubt this is a serious threat. For one thing, Senate Republicans under Mitch McConnell demonstrated that a committed majority can get a nominee through. For another, were Sotomayor to announce plans to retire, she could make it contingent upon the confirmation of a replacement, and rescind her retirement should a replacement not get confirmed in time.
All this said, I doubt Justice Sotomayor will retire this year (not that I would be one to know). If she were to make such a decision, it would likely be communicated to the White House this spring, and announced at the end of the Supreme Court's term.
The post Should Justice Sotomayor Retire? Some People Think So. appeared first on Reason.com.
]]>As Mark Joseph Stern noted yesterday on Xitter, the three-justice opinion concurring in the judgment appears to have been originally drafted as an opinion by Justice Sotomayor "concurring in part and dissenting in part." So either Justice Sotomayor was confused about how to style an opinion that reaches the same bottom line judgment of the majority (unlikely), or something changed in one or both opinions. [Sidenote: Who thinks to check metadata by double-clicking random parts of an opinion or searching for ghost text?]
There are other indications things may have been revised quite late. For instance, the three-justice opinion accuses the majority of holding that "a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment." The majority certainly holds that Section 5 of the Fourteenth Amendment vests in Congress the power to enforce Section 3, but nowhere does it require a "particular kind of legislation." Might this be responding to language in a per curiam draft that was later watered down? It's quite possible the per curiam was changed leaving no time for additional revisions to other opinions.
There's also a line in Justice Barrett's separate opinion that seems to be jousting with something that is not there. After explaining why she did not join parts of the per curiam, Barrett writes:
The majority's choice of a different path leaves the remaining Justices with a choice of how to respond. In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up.
"Stridency"? Really? Justice Barrett does not strike me as that sensitive. Perhaps the thre-justice opinion's citations to the Chief's separate Dobbs opinion and Breyer's Bush v. Gore dissent were a tad salty, but "strident"? This makes me wonder further whether there was language in the three-justice opinion that was watered down or removed, and the rush to issue the opinion prevented further revisions in response. (Or perhaps Justice Barrett initially drafted this language in response to a Justice Sotomayor partial dissent.
There are other places where the opinions do not quite mesh the way one would expect were there time for lots of back-and-forth, but these are a two I thought worth highlighting.
I had also initially wondered about the lack of a syllabus, but it turns out this is standard for per curiam slip opinions. They are initially issued without syllabi, which are later added for publication in the U.S. Reports.
Well, that's enough procrastination-through-speculation for one day.
The post Were There Last Minute Changes to Trump v. Anderson? appeared first on Reason.com.
]]>As I noted in a blog post three weeks back, there were serious arguments in favor of the Court granting this case to iron out some aspects of the D.C. Circuit's ruling against Trump. (On this point, see this essay by Jack Goldsmith.)
While the D.C. Circuit correctly rejected Trump's immunity claims in a hastily drafted (yet largely well-crafted) decision, there are questions about how presidential immunity claims should be conceived and the extent to which immunity claims prevent even the initiation of prosecution, as opposed to requiring the government to make certain showings (e.g. that given acts were not official acts, etc.). That said, I would have preferred that the Court had acted a bit more quickly than it did, but the Court is not always known (or celebrated) for speed. (It seems the "shadow docket" has its virtues.)
The Court's order treated Trump's application for a stay as a petition for certiorari and rewrote the question presented in the case. Trump's application for a stay presented two questions:
I. Whether the doctrine of absolute presidential immunity includes immunity from criminal prosecution for a President's official acts, i.e., those performed within the "'outer perimeter' of his official responsibility." Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982) (quoting Barr v. Matteo, 360 U.S. 564, 575 (1959)).
II. Whether the Impeachment Judgment Clause, U.S. CONST. art. I, § 3, cl. 7, and principles of double jeopardy foreclose the criminal prosecution of a President who has been impeached and acquitted by the U.S. Senate for the same and/or closely related conduct that underlies the criminal charges.
The Court limited its grant of certiorari to the following:
Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.
There are a few points worth making about this. First, the Court is not considering the second question at all. The U.S. Court of Appeals decisively (and correctly) rejected this argument below. It was never a serious argument, and is not worth the justices' time. No, a failure of the Senate to convict an impeached President does not preclude subsequent prosecution for the same or related acts.
Second, as Jack Goldsmith notes in this Xitter thread, the Court framed the issue in terms of "presidential immunity," not "absolute immunity" as Trump had argued. Further, by asking both "whether" and "to what extent" a President may be immune, the Court can make clear that mere invocation of alleged "official acts" is not enough to make the prosecution go away, while still providing immunity for core executive prerogatives. So the Court could decide that running for reelection is not an "official" act entitled to any immunity, or not sufficiently core to executive function to justify immunity, without raising the specter of future partisan prosecutions of former presidents for official acts (e.g. ordering military actions, like drone strikes, that result in the death of U.S. citizens, etc.).
Stepping back, while I liked the idea of the Court simply leaving the D.C. Circuit's decision in place and allowing a trial to go forward, there is no question that this case was objectively cert worthy. Ideally, the Senate would have convicted Trump after he was impeached, as the argument that the Senate lacked such authority was quite weak, but that was not to be. It would also have been far preferable had the Justice Department acted more quickly to investigate and initiate prosecution than it did, but that was not to be either. This leaves us with the unhappy choice of letting the Supreme Court further define the contours of presidential immunity on the eve of a presidential election in which the defendant is a candidate. That is not a great place to be, but that's where we are.
UPDATE: Ed Whelan flags another interesting aspect of the Court's order that I overlooked.
The Court failed to grant Trump's stay application. The grant of certiorari had the same effect, however, as the Court ordered the D.C. Circuit to withhold its mandate. Here's the interesting part: It take five votes to grant a stay, but only four to grant certiorari. Thus the lack of a stay suggests a majority of the Court may have been inclined to affirm the D.C. Circuit, even if some had concerns about the lower court's reasoning. That at least four voted to grant certiorari may also mean no more than at least four justices saw a need to refine the D.C. Circuit's analysis so as to provide greater clarity about the scope of presidential immunity going forward.
The post The Supreme Court's Grant in Trump v. U.S. (UPDATED) appeared first on Reason.com.
]]>Yesterday, a federal judge in Minnesota affirmed a $5 million arbitration award against MyPillow CEO Mike Lindell, who had offered a $5 million bounty to anyone who could debunk his alleged evidence of Chinese interference in the 2020 election. As I recounted last year:
Robert Zeidman, a computer forensics expert who had apparently voted for Trump twice, took Lindell up on his challenge. He analyzed the supposed evidence and demonstrated it was a steaming pile of digital detritus, and not evidence of any sort of election interference. Indeed, he showed (as Lindell's terms required) that the data had nothing to do with the 2020 presidential election. Lindell, expectedly, refused to pay, and the matter went to arbitration. There, despite Lindell having written the terms to make recovery difficult, the arbitrators sided with Zeidman.
Lindell refused to pay, so Zeidman took him to court, resulting in yesterday's judgment against the pillowmaker.
According to news reports, Lindell still maintains that he owes nothing, and will appeal. As with the 2020 election, Lindell seems to have a problem with evidence and legal conclusions that do not align with his priors. Also like Powell, Lindell faces other litigation, including defamation claims.
Unfortunately for both Powell and Lindell, they may have to bear the costs of their mounting legal losses themselves. Unlike Donald Trump, they do not have a political party and campaign organizations that will cover their legal costs.
The post A Bad Week for Team Kraken in Court appeared first on Reason.com.
]]>JUSTICE JACKSON: If I understand you correctly, each new company that is created in an industry can suddenly bring a challenge that might risk or undermine valid –invalidation of the entire basis of the industry, each new company, because you say each new company that's created can bring such a lawsuit. Now, whether or not it will succeed, I understand, but aren't you risking destabilization of the industry in this way?
MR. WEIR: We don't think so. We—we think the experience in the Sixth Circuit is what you'll see. There –there was no uptick in challenges to old regulations in the Sixth Circuit, and we would have seen them there in the last —
JUSTICE JACKSON: Is —is that possible because we had other doctrines that prevented, so, you know, for example, Chevron existed and so there were lots of things that already –you know, right? Like, there are reasons why you might not have an uptick. I'm just wondering, in a world in which you could bring these actions, why wouldn't you have this problem?
MR. WEIR: Well, I –I think that because most regulations are –are valid, there's –there's no argument that they're unlawful. So you would –so you wouldn't see them. It's only the ones that have defects that you're going to see challenges to or potential defects.
Was this a suggestion that Chevron will no longer exist after this term? I suppose we will know by July.
UPDATE: I should have listened to the second-half of the argument before posting. Had I done so, I would have noted this question from Justice Kagan:
JUSTICE KAGAN: Mr. –Mr. Snyder, I want to emphasize that I'm asking you a hypothetical question. It's an "if" question. There is obviously another big challenge to the way courts review agency action before this Court. Has the –has the Justice Department and the agencies considered whether there is any interaction between these two challenges? And, again, you know, if Chevron were reinforced, were affirmed. If Chevron were reversed, how does that affect what you're talking about here?
Does this question make it more or less likely that Justice Jackson inadvertently disclosed Chevron's fate? Was Justice Kagan just being precise? Or was she covering for her colleague's gaffe? Again, time will tell.
The post Did Justice Jackson Disclose the Outcome in Relentless and Loper-Bright? (UPDATED) appeared first on Reason.com.
]]>Today we see another example of this. Among the cases in which the Court denied certiorari on today's order list is South Carolina State Ports Authority v. National Labor Relations Board. In addition to noting that certiorari was denied, the order list also notes that Justice Kavanaugh would have granted the petition.
This case presented the following interesting questions:
1. Whether a union's unlawful secondary boycott is shielded by the work-preservation defense because the targeted secondary employer could choose to take its business elsewhere and, in that way, can "control" the primary employer's work assignments.
2. Whether a union's unlawful secondary boycott is shielded by the work-preservation defense even when no bargaining unit jobs are threatened.
While I find these questions interesting, it does not appear that four justices found them to be worthy of certiorari.
While he appears to want the Court to hear more cases, Justice Kavanaugh did not join Justice Alito's dissent from denial of certiorari in Coalition for TJ v. Fairfax County School Board, a case concerning the extent to which school districts may consider race (or proxies for race) in school assignment decisions. (My co-blogger Ilya Somin blogged about the lower court's decision here.)
What this may suggest is that while Justice Kavanaugh wants to hear more cases that raise questions of significance to the business community or regulatory matters, including cases involving patents, tort litigation and labor law, he is not as keen to hear cases implicating culture war flashpoints, such as race.
An important qualification to note here is that justices are not required to disclose when they would have granted certiorari in a given case. So while we know at least some cases in which Justice Kavanaugh would have granted certiorari, we do not know how his colleagues voted in these cases, or whether there are other cases in which Justice Kavanaugh would have supported certiorari, but chose not to disclose that fact.
The post Justice Kavanaugh Still Wants SCOTUS To Hear More Cases appeared first on Reason.com.
]]>This morning, on the Orders List, the Court denied a motion to intervene filed by Missouri, Kansas, and Idaho. These states argued that the should be allowed to intervene so as to ensure that the requirements of Article III standing are met so that the Court can reach the merits. (This is, I take it, a tacit admission that the plaintiffs' standing claims are quite tenuous, as I have argued at length in some of the poses linked below.) The states base this argument, in part, on their successful motion to intervene in the trial court (which Adam Unikowsky dissects here). In any event, the Court rejected the motion.
The Court also ruled on two applications to file late-submitted amicus briefs, one from the American Bar Association and one from former Commissioners of the FDA. Interestingly enough, the Court rejected the former brief, but accepted the latter. Looking at the two briefs, this seems like a reasonable call. The FDA Commissioners brief provides relevant expertise that might be absent from other filed briefs. The ABA brief, not so much. Indeed, one has to wonder why the ABA brief was filed at all, as this case does not relate (even tangentially) to the needs or interests of the legal profession and does not add much given what has already been filed on the FDA's behalf in this case. Moreover, filing briefs like this is something the ABA should avoid if it wants to be seen as an apolitical organization that represents the legal profession and can speak to questions relating to the practice of law with any degree of authority.
The Court also denied a motion to intervene filed by Gregory J. Roden as "Next Friend of Americans en ventre sa mere." No surprise there.
For those interested in more about this case, yesterday I participated in a panel discussion on this case with my colleague Jessie Hill, sponsored by the Law-Medicine Center at the Case Western Reserve University School of Law. Video of that program may be viewed here.
Also, here are my prior blog posts about this case and the issues it raises:
The post Supreme Court Denies Red State Effort to Intervene in Mifepristone Case appeared first on Reason.com.
]]>One source of public misunderstanding could be that doctors are often unaware of the extensive research concluding that vaping, while not risk-free, is substantially less risky than smoking (such that were all smokers to switch to vaping, tens of thousands–if not millions–of premature deaths could be averted). While reports by the National Academy of Sciences and Public Health UK (among others) have concluded that vaping exposes users to significantly lower contaminant levels and is likely to be substantially less harmful than smoking, one recent study found that 60 percent of doctors believe all forms of tobacco are equally harmful.
While some medical professionals are simply unaware of what can be said about the relative risks of smoking versus vaping, others seem intent on spreading disinformation. For instance, here's a TikTok by a cardiovascular surgeon claiming that vaping "is significantly worse than cigarette smoking." This is an outrageous and unfounded claim. Worse, insofar as this message is internalized by current smokers, it could discourage them from switching to less harmful sources of nicotine.
[Note: Even if this claim is based upon experience with EVALI victims, suggesting that EVALI is a consequence of vaping generally, when EVALI has been linked to black-market THC vaping fluids containing vitamin E acetate, is still quite irresponsible. There is no documented case of EVALI that has been linked to conventional vaping products.]
It is one thing to discourage vaping, as it is not risk-free (and there is limited evidence about its long term effects). It is quite another to suggest that vaping is equal or worse than smoking. The latter is misinformation–and the sort of misinformation that could cost lives.
The post When Doctors Are the Source of Public Health Misinformation appeared first on Reason.com.
]]>The jury awarded Mann nominal compensatory damages of $1 against each defendant, but then added punitive damage awards of $1 million against Steyn and $1,000 against Simberg. I would think that these damages–if not the verdict itself–are likely to be appealed.
The punitive damages would seem to be the most vulnerable part of the judgment. Under existing Supreme Court precedent, excessive punitive damages violate Due Process. So, for example, in BMW of North America v. Gore, the Court held that a punitive damage award of $2 million was excessive given that the plaintiff had only been awarded $2,000 in compensatory damages. This 1000-to-1 ratio, the Court held, could not be justified even considering the extent to which the defendant had engaged in egregious conduct.
There is some question whether BMW would continue to attract a majority of the Court today. That decision was 5-4. Justice Stevens wrote the majority, joined by Justices O'Connor, Kennedy, Souter, and Breyer. Justices Scalia, Thomas, Ginsburg and Rehnquist dissented. Nonetheless, the BMW holding is binding on lower courts.
While Mann prevailed at trial, the proceedings also unearthed some slimy conduct on his part, including his disparagement of scientists with whom he disagrees and behind-the-scenes efforts to suppress articles by scientists he does not like.
This long-running litigation may not be over. Steyn's camp has indicated they intend to challenge the punitive damages award (if not other aspects of the decision). Mann's attorney also told the NYT they still plan to appeal the prior decisions that had removed CEI and National Review from the case: "Asked about Competitive Enterprise Institute and National Review, John Williams said, 'They're next.'"
* * *
A post-script. Here is a disclaimer I have included in prior posts about this litigation:
DISCLOSURE: As I've noted in prior posts on this case, I am a contributing editor at National Review Online, which means I have a fancier byline when I submit articles to the publication and occasionally contribute to The Corner and Bench Memos. It is not a salaried position. I also worked at the Competitive Enterprise Institute from 1991 to 2000 — many years before the events at issue in this litigation. If either of these facts makes you suspect bias on my part, so be it.
Note that while I was once something of a climate skeptic (much like Jerry Taylor), my views have changed. Today I have profound disagreements with CEI on the subject of climate change, having argued in defense of the scientific "consensus" on climate change and in favor of a carbon tax, among other measures to address the climate threat. My interest in this litigation arises from this implications for robust debate on matters of public concern, as I explained in this post.
The post Climate Scientist Michael Mann Wins Defamation Suit Against Mark Steyn and Rand Simberg appeared first on Reason.com.
]]>In Department of Agriculture Rural Development Rural Housing Service v. Kirtz, a unanimous Court held that a consumer may sue the U.S. Department of Agriculture for money damages under the Fair Credit Reporting Act because the Act waived the federal government's sovereign immunity. Justice Gorsuch wrote for the Court.
In Murray v. UBS Securities, the Court held that under the whistleblower protection provisions of the Sarbanes-Oxley Act, a whistleblower challenging an employer's adverse employment action must prove that his protected whistleblowing activity was a contributing factor in the employer's unfavorable personnel action, but does not have to prove that the employer acted with "retaliatory intent." Justice Sotomayor wrote for the Court. Justice Alito filed a separate concurring opinion joined by Justice Barrett.
This seems like a a slow pace for the issuance of opinions, but not as slow as last year, when the Court had only issued one opinion in an argued case. In OT 2021, by contrast, the Court had issued ten opinions in argued cases, though several of those (WWH v. Jackson, US v. Texas, Biden v. Missouri, and NFIB v. OSHA) had been heard on an expedited basis. Pre-Covid, at the start of OT2019, the Court had also only issued three opinions in argued cases at this point (though it had also decided two cases summarily with per curiam opinions).
We may get additional opinions later this month.
The post While Attention Was on Oral Argument in Trump v. Anderson, the Supreme Court Issued Two Opinions appeared first on Reason.com.
]]>The 57-page opinion is careful and thorough, and was produced on a short timeline. The panel released the opinion a scant 28 days from oral argument and was unanimous. It also reached the correct result (a point on which my co-blogger Keith Whittington agrees).
Harvard law professor Jack Goldsmith agrees that the court reached the correct conclusion, but believes the case nonetheless merits Supreme Court review. He makes the case over at the Lawfare blog. His essay begins:
I agree with the D.C. Circuit's conclusion in United States v. Trump that former president Trump is not immune from prosecution for criminal acts committed in office. Nonetheless, I think the Supreme Court should review the case. The main reason to grant certiorari is simply that, as Supreme Court Rule 10 states, "a United States court of appeals has decided an important question of federal law"—a former president's immunity from prosecution—"that has not been, but should be, settled by [the Supreme] Court." An additional but less obvious reason why the D.C. Circuit decision is important is that it contains loose reasoning that will have a potentially large collateral impact on the construction of criminal statutes to burden the Article II authorities of sitting presidents.
We will see whether the Supreme Court agrees.
The post Jack Goldsmith on Why SCOTUS Should Review the D.C. Circuit's Decision on Presidential Immunity appeared first on Reason.com.
]]>Last month, DOJ filed a motion for a stay in the district court so that the federal government could file a writ of mandamus to dismiss the case before having to engage in meaningful trial preparations. The district court has not ruled on the motion (though the plaintiffs have filed a brief in opposition). Nonetheless, on Friday the Justice Department filed its petition for a writ of mandamus with the U.S. Court of Appeals for the Ninth Circuit.
I doubt Judge Aiken will grant the Justice Department's motion (especially now) but I suspect the Ninth Circuit may look more favorably on the Justice Department's petition–and if they do not, this case could easily wind up back on the Supreme Court's docket.
Here is how the Justice Department's filing begins:
The climate crisis is an urgent problem, and the Executive Branch is taking a wide range of steps to address it, across many agencies and in many different forms. See generally Exec. Order 14,008, Tackling the Climate Crisis at Home and Abroad, 86 Fed. Reg. 7619 (Jan. 27, 2021). In this long-running case, however, Plaintiffs—a group of young people and a putative representative of future generations—seek sweeping relief from the Judicial Branch, not the political Branches, that would install the district court in a supervisory role over the federal government's response to climate change in its entirety. In a prior appeal, this Court held that Plaintiffs lack standing to sue because the unprecedented remedies they seek are beyond the judiciary's power. Juliana v. United States, 947 F.3d 1159, 1170-73 (9th Cir. 2020). Plaintiffs may challenge discrete government actions (or inaction), but their demand for changes to the government's overall response to climate change "must be made to the political branches or to the electorate at large" rather than in district court. Id. at 1175.
The Court thus concluded that the federal judiciary lacks jurisdiction over Plaintiffs' claims and directed the closure of the case by "remand[ing] this case to the district court with instructions to dismiss for lack of Article III standing." Id. Three years later, the district court decided that the case was not yet over and permitted Plaintiffs to file an amended complaint that purports to create Article III jurisdiction on the same flawed theory this Court rejected. The district court then largely denied the government's motion to dismiss the amended complaint. And although the court previously certified an immediate appeal from its denial of dispositive motions—leading to this Court's earlier mandate to dismiss—the district court refused to certify either its order permitting amendment or its order on the motion to dismiss, without explanation. The case is now headed to trial.
The Court should issue a writ of mandamus directing the district court to dismiss this case for lack of jurisdiction without leave to amend. The district court refused to recognize the limits of Article III jurisdiction and evaded the Court's mandate of dismissal. Indeed, citing this Court's decision, the district court acknowledged that "[s]ome may balk at [its] approach as errant or unmeasured." ECF No. 565 at 7 (attached as Exhibit 1) (citing Juliana, 947 F.3d at 1174). But this Court did not just "balk" at the district court's approach: the Court issued a mandate directing the district court to dismiss the case and an opinion holding that the district court lacked jurisdiction to manage the federal government's overall response to the complex and multifaceted issue of climate change. The district court reasoned that the Court's decision did not foreclose an "innovative" experiment in declaratory relief of the district court's devising. But this Court held that the district court lacks Article III jurisdiction to award even declaratory relief as a remedy for Plaintiffs' claims, and the district court's attempted innovation was simply the application of a different label to the injunctive relief this Court already foreclosed.
The Court should hold that the district court violated the rule of mandate by granting leave to file the amended complaint. In the alternative, the Court should order the district court to dismiss the case without leave to amend either for lack of Article III standing or for failure to state claims for relief. The Court should also issue an administrative stay and then order a stay of proceedings pending this Court's consideration of this petition. Plaintiffs oppose a stay and mandamus.
And here, for comparison, is the introduction to the plaintiffs' opposition to the motion for a stay.
The Solicitor General of the United States and the Department of Justice have singled out these 21 Youth Plaintiffs, eleven of whom are Black, Brown, and Indigenous, to use the most aggressive and discriminatory legal tactics to stop these Youth—with physical, emotional, cultural, property, and other tangible and deeply personal injuries—from having their trial against the United States federal government for its role in causing their injuries. Of the more than 40,000 civil cases in which the United States is a defendant represented by the Department of Justice, in only one case has the Solicitor General sought to stop the development of an evidentiary record at trial, in the ordinary course of litigation, purely on the basis that it costs the government too much money to proceed to trial: Juliana v. United States. These youth have been politically targeted and persecuted, for over eight years, as the enormous power and machine of the Department of Justice singles them out among tens of thousands of other plaintiffs, in an effort to stop our nation's youth from taking the witness stand, when every court to review the Juliana Plaintiffs' claims has said that there is life and death at stake, the survival of the nation is at stake, and there is merit to their constitutional claims. All they seek after trail is a declaratory judgment of their rights and the government's wrongs, just as the students in Brown v. Board of Education did 70 years ago.
But their government wants to hide the truth of the incriminating evidence from being presented at trial, circumvent the ordinary appellate process that would normally follow and would correct any mistake made by the lower courts, and wants at all costs to avoid a declaratory judgment that the Defendants might have acted, and might still be acting, unconstitutionally. These brave youth are the equivalent of citizen whistleblowers on the government's fossil fuel energy system, and the evidence of its conduct the government seeks to hide from the public, and they are being targeted unlike any other group of plaintiffs in any case in U.S. history as a result. These are children and youth, who come from the frontline communities of the climate crisis, the very youth this administration, and these Defendants, claim to want to protect. There is no other meaningful redress for these young Plaintiffs' injuries, but from the courts. It would be a colossal failure of democracy, the rule of law, and the third branch of government if their case never goes to trial. But at all cost, since the Trump administration took office and now through the Biden administration, the Department of Justice's mission has been, as stated by its own lawyers, "to kill Juliana v. U.S."
That Defendants once again seek a stay pending a petition for a writ of mandamus is nothing short of shocking. There is simply no basis for granting a writ of mandamus in this case, which would otherwise proceed to trial in routine fashion. In fact, the Department of Justice's own Justice Manual provides that a writ of mandamus is an "extraordinary remedy, which should only be used in exceptional circumstances of peculiar emergency or public importance." U.S. Dep't of Just., Just. Manual, Civil Resource Manual § 215. The Department of Justice fails to meet its own standard. The only emergency in this case is the climate emergency that Defendants created and the Department of Justice prolongs with further delays. Indeed, the only issue of public importance is the ongoing constitutional violations facing Plaintiffs with each additional day of delay.
* * *
For those interested, here are my prior posts on the Juliana litigation:
The post DOJ Files Petition for Writ of Mandamus to End Juliana Climate Litigation appeared first on Reason.com.
]]>Notre Dame law professor Derek Muller responds to Yoo and Delahunty in the latest issue of the Case Western Reserve Law Review, explaining why their theory is wrong. Even if there had been competing slates of electors from individual states, the Vice President lacks the authority to resolve such disputes.
Here is how the article begins:
On January 6, 2021, the President of the Senate—Vice President Mike Pence—dutifully opened the electoral votes from the 2020 presidential election and read aloud the totals. He acted consistent with the direction of the Electoral Count Act of 1887, consistent with the congressional joint resolution approved three days earlier, and consistent with more than two centuries of congressional practice. Not everyone was convinced that the Constitution and laws of the United States obligated Pence to behave in this way—most notably, President Donald Trump, who had just lost the election and sought a way to turn defeat into victory.
On this, Professors Robert Delahunty and John Yoo agree with Pence. In their recent article here in the Case Western Reserve Law Review on the topic of the role of the Vice President in counting electoral votes, they conclude, "Pence was obliged to count the votes as submitted by the states." But they reach a different conclusion on who holds the legal power to count electoral votes and resolve disputes. They conclude, "Our theory leads to the conclusion that the best reading of the constitutional text, structure, and history assigns that role to the Vice President, not Congress or the judiciary." In contrast, "Congress has no substantive role in the process."
Congress has continually rejected this view for more than 200 years, and perhaps it is a reason Pence saw no such room for debate. Professors Delahunty and Yoo helpfully examine the history surrounding disputes over counting electoral votes and in places make appropriate conditions on the modesty of their claims. But this Essay explains why Congress, and not the President of the Senate, holds the power to count electoral votes and to resolve disputes over them.
Some details help frame the heart of the controversy. There are potentially three different responsibilities to consider when the House and the Senate join together before the President of the Senate for the counting of electoral votes. First, who presides over the joint session where counting takes place, and what is the role of that presiding officer? Second, who counts the electoral votes? Third, who resolves disputes about those electoral votes?
This Essay answers those questions. First, the presiding officer in the joint session is the President of the Senate, and she acts as any other presiding officer of a legislature. She initiates actions pursuant to precedent, parliamentary procedures, and the wishes of the chamber. And that means the chamber—here, the joint session—can constrain the President of the Senate as presiding officer. Congress did exactly that when it chose to further constrain the distraction of the President of the Senate in the Electoral Count Reform Act of 2022. Second, Congress counts electoral votes. The evidence in the text and structure of the Constitution and congressional practice before the ratification of the Twelfth Amendment supports this interpretation. Third, the power to resolve disputes runs with the power to count. And that means Congress also has the power to resolve disputes about presidential electors.
Separating these responsibilities is crucial because it can be too easy to conflate some of these activities, which in turn elides over the distinctions in responsibilities. When the presiding officer acts, she does so not to count votes, but to preside over the joint session and help it proceed according to the rules and precedents set by Congress. The actions she takes may resemble the substantive act of counting. But close scrutiny of the record reflects that the President of the Senate does not count, and has never counted, votes. That is because the power to count resides in Congress, where the Twelfth Amendment lodges that power.
The full article is here.
The post Muller on Yoo and Delahunty on the Twelfth Amendment and the Counting of Electoral Votes appeared first on Reason.com.
]]>Recall that in 2018, in Pereira v. Sessions, in what would be one of his last opinions on the Court, Justice Anthony Kennedy raised deep concerns about the way Chevron has been understood and applied in lower courts.
At issue was the timing and amount of notice the federal government must give non-citizen, non-permanent residents to trigger the stop time rule, which can affect whether such individuals are allowed to remain in the United States.
Lower courts had initially adopted a rule requiring complete notice to trigger the rule. Ultimately, however, in the context of individual adjudications, the Board of Immigration Appeals disagreed. This prompted multiple circuit courts to adopt the contrary rule—a rule contrary to what courts had previously determined was the best interpretation of the statute (and the interpretation eight of nine justices would later conclude was compelled by the statutory text.)
Even though there was little statutory basis for the BIA's stingy, late-developed, pro-deportation interpretation, a majority of circuit courts had upheld it because the statute was ambiguous.
As Justice Kennedy remarked, the sort of analysis courts conducted in these cases to justify upholding the BIA's interpretation, relying upon Chevron, constituted "an abdication of the Judiciary's proper role in interpreting federal statutes."
Wrote Kennedy:
The type of reflexive deference exhibited in some of these cases is troubling. And when deference is applied to other questions of statutory interpretation, such as an agency's interpretation of the statutory provisions that concern the scope of its own authority, it is more troubling still.
Given the concerns raised by some Members of this Court, it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision. The proper rules for interpreting statutes and determining agency jurisdiction and substantive agency powers should accord with constitutional separation-of-powers principles and the function and province of the Judiciary.
If Justice Kennedy expressed such concerns in 2018, it should not surprise us that–some five years later with little evident change–the Court has is reconsidering Chevron.
As I see it, the Court has reached this point because of a range of concerns, some (but not all) of which Kennedy identified in Pereira.
First, in practice, Chevron is often used to uphold agency interpretations that have little to do with allowing agencies to exercise their delegated authority to make policy judgments based upon agency expertise. The procedural issue in Pereira would seem to be a good example of this.
Second, despite Supreme Court decisions suggesting that ambiguity alone is insufficient to trigger Chevron deference, lower courts often fail to engage in any meaningful "step zero" analysis in order to make sure that Congress had delegated the relevant authority to the agency. Instead, Chevron has become an excuse for courts to abdicate their responsibility to resolve legal questions in favor of agencies.
Third, as highlighted in the various recent major questions cases, agencies increasingly view Chevron as a license to go on a scavenger hunt for plausible statutory authority to implement policies favored by the executive branch, whether or not such policies have been authorized by Congress. Put another way, rather than facilitating the ability of agencies to faithfully execute the law Congress enacts, Chevron is used to enable agencies to go their own way.
A fourth concern, most acute in areas in which agencies make policy through adjudication (as in immigration and labor policy) is that agencies are able to change their interpretations–and thus change the applicable law– without going through the sort of open and deliberative rulemaking process that ensures those who will be subject to the rule have notice and an opportunity to be heard.
What these concerns have in common is that they all represent a failure of agencies and lower courts to take seriously the idea that Chevron deference is grounded in delegation, and that this idea necessarily entails limits on Chevron's domain. While some initially sought to justify Chevron on separation of powers or broad policy grounds, the Supreme Court's post-Chevron jurisprudence (including, but not limited to, cases like Mead) make clear that if Chevron is to be justified, it must rest on the conclusion that Congress delegated such authority to the agency in question, and that where there is no indication that such a delegation occurred, there is no basis for courts to defer to an agency interpretation. Put another way, Chevron deference should apply only in those instances where it can be presumed that Congress delegated authority to an agency to resolve what is essentially a policy choice – e.g. whether an air pollution "source" should be defined so as to accommodate "bubble" policies – and not because agencies have any inherent authority to make such choices.
A key question in Relentless and Loper Bright is whether the concerns outlined above require overturning Chevron. For myself, I am skeptical. I am on record suggesting that, in addition to the failure of courts to respect the limits of Chevron's proper domain, that the underlying issue is the scope of authority that Congress delegates to agencies. In other words, a doctrine that focuses on delegation as the source of deference – as opposed to mere ambiguity – would likely do the trick, but this requires clarifying how many understand Chevron. As Thomas Merrill noted on this blog, while parts of Chevron stress the need to determine whether Congress delegated a given policy choice to the agency in question, other parts of the opinion suggest ambiguity or silence is sufficient to justify deference. Some subsequent opinions, such as that in City of Arlington v. FCC, further muddied the waters.
As it happens, the question presented in both Loper Bright and Relentless gives the Court ample space to navigate these questions. The question presented deliberately and carefully presents two possible ways to resolve the case and address Justice Kennedy's concerns. Here's the QP for both cases:
Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.
The QP suggests the Court overturn Chevron, but it also gives the Court room to clarify (and perhaps reorient) Chevron to focus on the delegation question–and to do so in a way that aligns nicely with the Court's recent major questions doctrine decisions. Specifically, the Court could emphasize that, before even considering whether to defer to an agency, they must first conclude that Congress delegated authority to the agency in question to resolve a policy issue with the force of law, and that when a statute is silent on the existence of agency of authority, courts should presume that such authority does not exist. Statutory silence is just that: Silence. It is not a delegation of power. (Admittedly, this is a position I have held for some time, and urged (unsuccessfully) in Arlington.)
As I see it, imposing this sort of limitation is the key step. Whether this is done by overturning Chevron, "Kisor-izing" Chevron, or merely adopting the Chief Justice's Arlington dissent is almost a stylistic choice. There is plenty in Chevron and subsequent cases to justify this outcome, even if it would overturn or repudiate some of the ways that Chevron has been applied.
Note that so long as the Court focuses on delegation as the source of agency authority, neither overturning nor modifying Chevron would limit the ability of Congress to entrust agencies with discrete policy questions in areas informed by agency expertise. As Chief Justice Roberts noted early in the Relentless argument, deferring to an agency on whether scientific or other evidence supports a particular conclusion is distinct from deferring to an agency's interpretation of statutory text. Indeed, even if the Court were to fully overturn Chevron in favor of a Skidmore-like regime, this need not foreclose reliance upon agency expertise, nor need it have any direct effect on how courts conduct arbitrary and capricious review and apply cases like State Farm.
This would suggest that some of the horror stories about a post-Chevron administrative state are quite overstated. The administrative state was able to operate before Chevron was decided (and before it was made the basis of a doctrine), and the administrative state will persist no matter how these cases are resolved.
The post Whether Chevron Stands or Falls, Any Deference Should Be Based Upon Delegation, Not Ambiguity appeared first on Reason.com.
]]>Over on the Election Law Blog, Derek Muller has a post examining Trump's merits brief in Trump v. Anderson, noting that, whatever the Court does with regard to Trump and the 2024 election, the case has "the potential to be the most significant ballot access case in over 30 years." Moreover, while Trump has not leaned into the election law questions, Muller suggests that election law doctrines may offer more support for Trump's position (at least in the posture in which Trump v. Anderson arises) than the constitutional claims he is trying to make.
it seems increasingly likely, to me, that if the Supreme Court rules in Trump's favor (and by if, the likelihood seems to be declining), it will be on an election law ground related to ballot access rather than a substantive Section 3 analysis.
If one goes back to see how Madison Cawthorn and Marjorie Taylor Greene handed the challenges to their eligibility back in 2022, it was a very different strategy. The original challenges, citing Section 3, were filed in state court. The defendants then went on the offensive. They filed collateral cases in federal court; they secured some delays and temporary victories; they secured sympathetic opinions from judges at the courts of appeals that leaned into some of their arguments on election law issues on the power of Congress to judge qualifications of its members, squarely the kind of election law issue that is a threshold to any substantive Section 3 analysis.
Trump, however, has handled the cases very defensively. He never filed collateral proceedings in federal court on election law issues. He's largely settled into framing the case along the lines the plaintiffs have framed it, as a constitutional law case under Section 3. . . .
It would seem that this significant ballot access dispute would attract a lot more election law attention. But it has not. Indeed, very few election law scholars have weighed in and the amicus briefs, and those that have with in support of neither party, reflecting some hesitation, to some degree, and some questions about the underlying merits. (Disclosure: I'm one of them.) [Here is Muller's brief.]
But I want to focus on Trump's arguments in the merits brief. And I think it seems increasingly likely (in my judgment, anyway) that while this case has not been principally litigated as an election law one, it might end up that way, if the court is inclined to rule in Trump's favor. But if it does not move in that direction. I think it's going to be very difficult for Trump to succeed on the merits, and it seems increasingly likely that the Court will hold that he could be barred from the ballot on the merits of Section 3. Indeed, watching the litigation unfold, my sense today is that Trump's chances of success are lower than they've ever been.
As Muller sees it, most of the arguments presented in Trump's brief do not have much force, but we will see how the justices respond when the Court hears oral arguments in Trump v. Anderson this coming week.
Post-Script: I have made no secret of my feelings about Trump, and those feelings have not changed. I did not support his election in 2016 or his reelection in 2020. I believe he should have been convicted and disqualified from holding future office after his impeachment (either one), and do not believe there is any constitutional bar on "late impeachment." And I would love to seem him disappear from our nation's political life altogether. I am nonetheless not (yet) convinced that he is disqualified from holding office again under Section 3, and I am quite skeptical that Section 3 bars him from appearing on the ballot.
The post What If Trump v. Anderson Is Treated Like an Election Law Case? appeared first on Reason.com.
]]>"I live in frustration. And as you heard, every loss truly traumatizes me in my stomach and in my heart. But I have to get up the next morning and keep on fighting," Sotomayor, the court's senior liberal member, said at an event at the University of California, Berkeley School of Law.
"How can you look at those people and say that you're entitled to despair? You're not. I'm not," she said, responding to a question from the school's dean about how students there increasingly feel discouraged by the current court and how it's shaping American law. "Change never happens on its own. Change happens because people care about moving the arc of the universe toward justice, and it can take time and it can take frustration."
According to this Bloomberg report, she also finds the work taxing.
"And to be almost 70 years old, this isn't what I expected," Sotomayor said Monday during an appearance at the University of California, Berkeley's law school. "But it is still work that is all consuming and I understand the impact the court has on people and on the country, and sometimes the world. And so it is what keeps me going." . . .
"Cases are bigger. They're more demanding. The number of amici are greater, and you know that our emergency calendar is so much more active. I'm tired," she said. "There used to be a time when we had a good chunk of the summer break. Not any more. The emergency calendar is busy almost on a weekly basis."
Justice Sotomayor also expressed concern about they way some advocates present their cases to the Court. From the CNN report:
"I can't tell you how often I'll look at (Justice) Neil Gorsuch and I'll send him a note and say, 'I want to kill that lawyer.' Because he or she didn't give up that case. Because by the time you come to the Supreme Court, it's not about your client anymore. It's not about their case," she said. "It's about how that legal issue will affect the development of law and how you pitch it – if you pitch it too broadly, you're gonna kill the claims of a whole swath of people."
These later remarks may well provoke some interesting discussion about the obligations of Supreme Court advocates. It is a fair observation that zealous advocacy for an individual client may come at the expense of a broader cause otherwise aligned with that client's interest, as may happen when a criminal defendant's attorney petitions for certiorari in a case that is likely to result in a pro-prosecution ruling from the Court. Whether this means that lawyers should refrain from such representation, or simply consider the likely downside risks in crafting and presenting arguments, is an important question.
The post Justice Sotomayor Voices Her Frustration with Supreme Court and Advocates appeared first on Reason.com.
]]>It is not just politicians who are engaged in false, hyperbolic statements, however. Journalists and purported experts are doing it too, such as those who claim that Texas is "defying" the Supreme Court by continuing to put up c-wire on state and private land near the border with Mexico. According to these accounts, because the Supreme Court lifted an injunction that barred the federal government from removing c-wire where necessary for immigration enforcement activities, Texas is flouting the Supreme Court by continuing to place c-wire on state and private property. This is not true either.
In the relevant case, Department of Homeland Security v. Texas, Texas is suing the federal government, in tort, for the destruction of state property (c-wire barriers and the like). The district court generally concluded that Texas was right on the facts, but wrong on the law, because Texas could not seek money damages from the federal government due to sovereign immunity. The U.S. Court of Appeals for the Fifth Circuit enjoined the federal government from taking additional actions that remove or destroy c-wire barriers on state and private land, save where such actions were necessary to address a medical emergency, pending additional proceedings. Among other things, the Fifth Circuit concluded Texas would be likely to show the federal government had waived its sovereign immunity under 5 U.S.C. Section 702.
All the Supreme Court did (in this order) is eliminate this injunction—likely because it concluded that the federal government is likely to prevail on sovereign immunity grounds. It did not rule on—indeed, it was not called to rule upon—the lawfulness of anything Texas is doing. Nothing in what the Supreme Court did told Texas to take or refrain from any action.
But don't just take my word for it. Here is what Professor Steve Vladeck (no fan of the Abbott administration) wrote in his "One First" substack newsletter:
perhaps the most important thing to say about the order is how little it actually resolved (someone really ought to write a book about why this is a bad thing): By vacating the Fifth Circuit's injunction, the Court effectively protected the federal government from contempt sanctions if it continues to remove the razor wire that Texas has placed along the border—and nothing more. Thus, nothing Texas did or said later in the week was "defying" the Court's ruling; much like President Jefferson and Marbury v. Madison, there was no real way Abbott could defy such a modest ruling because it wasn't directed at Texas in the first place. Instead, as explained in more detail below, the real legal disputes between Texas and the federal government at the border remain very much open and unsettled (and are likely to only escalate further, given the politics of the moment).
As Vladeck notes, there are other pending cases that challenge the lawfulness of actions Texas has taken that conflict with the Biden Administration's immigration policy enforcement choices. One of these cases challenges a new immigration law in Texas that looks highly suspect under Arizona v. United States, a 5-4 decision from 2012 in which the Court concluded that many state actions to enforce federal immigration laws are preempted. If courts rule against Texas in those cases–and I suspect they might–and Texas does not stand down, then it will be appropriate to call out the Lone Star state for defying the Supreme Court. But that is not what has happened yet, and it is irresponsible for journalists and others who should know better to say so.
Governor Abbott may be reckless and cavalier, particularly with his rhetoric, but he's no Judge Aiken (at least not yet).
The post No, Texas Has Not "Defied" The Supreme Court appeared first on Reason.com.
]]>Including Judge Stranch, whose intentions were just reported today, this means there are ten current and pending vacancies on the federal circuit courts of appeals. Four of these seats have pending nominees.
Ten appellate seats to fill in the final year of a presidential term is a tall order, but I suspect Senate Democrats can get it done if they are willing to devote the floor time to it. In the absence of significant legislation, there will be political pressure to move on appellate judges.
Will there be even more vacancies to fill? I doubt it. There are twelve circuit court judges who are eligible for senior status and were appointed by Democratic Presidents, but who have not taken announced their intention to leave active status. Given that this is an election year, if they do not announce soon, it is reasonable to assume they will not be going senior during this presidential term. Even without blue slips for appellate nominees, it can be difficult to get folks through in an election year, particularly if nominees cannot be named before the spring.
For those keeping track, here are the circuit court nominees appointed by Democratic presidents who are eligible to take senior status, but who have not yet taken that step. Also included in this tabulation are the number of current or pending vacancies on each court.
Also, for the record, there are some two dozen circuit court judges in active service who were appointed by Republican presidents and are currently eligible for senior status.
The post More Circuit Court Vacancies For Biden To Fill (But Not As Many As There Could Be) appeared first on Reason.com.
]]>As I noted here, Judge Aiken denied the federal government's motion to dismiss in December. This ruling was bad enough. What was worse–indeed, astounding–was her denial of the federal government's request that she certify the case for interlocutory review and failure to provide any explanation (let alone justification) for the denial. This was as reckless an act of judicial defiance as we have seen from any district court in the past three years.
From the DOJ filing:
The Court should stay proceedings in this case pending Defendants' forthcoming petition for a writ of mandamus. The Ninth Circuit ordered this Court to dismiss this case: "[W]e reverse the certified orders of the district court and remand with instructions to dismiss for lack of Article III standing." Juliana v. United States, 947 F.3d 1159, 1175 (9th Cir. 2020). The Ninth Circuit's opinion in this case forecloses the theory that a declaratory judgment, standing alone, can redress Plaintiffs' alleged injuries, as required to show Article III standing. Id. at 1170. The Court's December 29, 2023, Order therefore violates the rule of mandate. . . . And even if the Court's order does not violate the mandate, the Supreme Court's observation still pertains: "the justiciability of [these Plaintiffs'] claims presents substantial grounds for difference of opinion." July 30, 2018, Supreme Court Order, ECF No. 330-1.
Because this Court denied Defendants' motion to certify its orders for interlocutory appeal, the government will seek a writ of mandamus from the Ninth Circuit to enforce its mandate and direct the Court to dismiss this case in its entirety. If granted, the government's petition will end this case, and any public resources spent on further litigation while the petition is pending would be wasted. The government therefore respectfully requests the Court to enter a stay of all proceedings in this Court pending resolution of the mandamus petition, as the Ninth Circuit did when considering the government's prior mandamus petition in this case.
The question now is how Judge Aiken will respond. From the start of this litigation she has shown herself quite sympathetic to the plaintiffs' cause, embracing their extravagant legal theories and resisting the federal government's procedural defenses. Now, however, she is directly contravening controlling legal authority about this very case.
According to the docket, the plaintiffs will be responding to the federal government's motion this week. Then Judge Aiken faces a choice: Grant the stay and allow the Ninth Circuit to consider the writ of mandamus, or refuse and force the Justice Department to proceed on an emergency basis.
As has been clear for some time, the question is not so much whether this litigation will end, but how it ends, and whether Judge Aiken's shenanigans produce rulings that hamper other climate change litigation.
* * *
For those interested, here are my prior posts on the Juliana litigation:
The post Justice Department to Seek Mandamus to End Juliana Litigation (Again) appeared first on Reason.com.
]]>The post Upcoming Talks and Presentations (Updated) appeared first on Reason.com.
]]>It seems that a species that has been delisted as an endangered species has also been delisted from the official list of species that have been delisted. Here's the story (so far).
While working on my forthcoming symposium article evaluating the first fifty years of the Endangered Species Act (ESA), I looked at the number of species that have been designated as endangered or threatened species under the Act, as well as those that have been "delisted." Species are delisted either because they are no longer threatened or endangered (i.e. they have recovered), because they went extinct, or because they never should have been listed in the first place (perhaps due to a data error of some sort).
The Fish and Wildlife Service maintains data on species listing and delisting in its ECOS database.
I initially reviewed the data on ECOS in spring 2023, in preparation for a presentation. While reviewing and updating this data in the fall, however, I encountered a discrepancy. The number of species identified as "delisted" on ECOS seemed to come up short.
Reviewing the data on ECOS more carefully, I determined that the discrepancy was due to the removal of the Tumamoc globeberry (Tumamoca macdougalii). While the globeberry had been included in the list of delisted species as late as May 2023, it was no longer included in October. It's prior ECOS page is now blank. This is odd, for there is no reason the globeberry should not still be included as a delisted species.
As detailed elsewhere on the FWS website (and in the Federal Register), the globeberry was initially listed as an endangered species in 1986. In 1993, however, the globeberry was delisted because the FWS determined that the original data upon which the listing was based had been in error. (This sort of thing happens from time to time, as those species that are most endangered are often those about which less is known, and therefore it is understandable that data about such species may be inaccurate or incomplete.)
I contacted the FWS to find out why the globeberry was removed from the tally of delisted species on ECOS. While I have not yet received an official reply, one FWS staffer suggested that the globeberry may have been pulled from ECOS because the FWS is conducting a new status assessment for the globeberry, and there is some reason to believe it could be (re)listed under the ESA based upon more recent research.
I appreciate the update, but it seems to me that removing the globeberry from ECOS was an error. At present, the globeberry is a delisted species–it was once listed, and was subsequently delisted through the formal process provided for under the ESA. It may well be the case that, based upon new and more complete data, the globeberry should be (re)listed as threatened or endangered under the Act. But unless and until that happens, it remains a delisted species, and the FWS ECOS database should reflect that fact.
UPDATE: I have been informed by an FWS staffer that the Tumamoc Globeberry was inadvertently removed from the list of delisted species, and it has been restored to the ECOS database. Unfortunately, it now appears that multiple other species are now missing, such as the Braken Bat Cave meshweaver (delisted in 2000), and others are misclassified, such as the Snail darter, which was delisted because it has recovered, but is now listed in ECOS as "extinct." Time permitting, I will try to figure out what's going on with the ECOS data and sort it all out.
SECOND UPDATE (1/28/2024): The ECOS data appears to be restored. All 127 delisted species are included and appear to be properly characterized.
The post The Strange Disappearance of the Tumamoc Globeberry (Updated) appeared first on Reason.com.
]]>For reasons I explained last month (and reiterated here), the Supreme Court's denial of certiorari was totally warranted. The energy companies' arguments are largely based upon the claim that climate-change-based tort claims necessarily implicate federal law, and are ultimately preempted. As I have explained at length, and has been recognized by virtually every circuit court judge to hear such claims (most recently by a three-judge panel on the D.C. Circuit), that is just not so. And absent a circuit split, there was simply no reason to take this case (though other climate-related cases may find themselves on the Court's orders docket in due course).
As noted on the orders list, one justice—Justice Kavanaugh—would have granted the petition for certiorari. As I have noted before, Justice Kavanaugh has repeatedly indicated an interest in hearing cases that did not interest his colleagues.
The post Supreme Court Takes a Pass on Minnesota Climate Change Case appeared first on Reason.com.
]]>This is the Fifth Circuit's third Wages & White Lion opinion. A panel of the court had initially stayed the FDA's enforcement of its prohibition on the sale of unapproved vaping products (decrying the agency's "surprise switcheroo"), but a separate panel reversed course, upholding the FDA. Now, sitting en banc, the Fifth Circuit has again ruled against the FDA, taking the agency to task for its arbitrary treatment of Wages & White Lion's product applications and, by implication, those submitted by dozens of other manufacturers as well.
Judge Oldham wrote for the Court. He was joined by Chief Judge Richman and Judges Jones, Smith, Elrod, Willett, Ho, Duncan, Engelhardt, and Wilson. Judge Haynes wrote the principal dissent, joined by Judges Stewart, Southwick, Higginson, and Douglas. Judge Graves also dissented separately.
Judge Oldham's opinion begins:
Over several years, the Food and Drug Administration ("FDA") sent manufacturers of flavored e-cigarette products on a wild goose chase.
First, the agency gave manufacturers detailed instructions for what information federal regulators needed to approve e-cigarette products. Just as importantly, FDA gave manufacturers specific instructions on what regulators did not need. The agency said manufacturers' marketing plans would be "critical" to the success of their applications. And the agency promulgated hundreds of pages of guidance documents, hosted public meetings, and posted formal presentations to its website—all with the (false) promise that a flavored-product manufacturer could, at least in theory, satisfy FDA's instructions. The regulated manufacturers dutifully spent untold millions conforming their behavior and their applications to FDA's say-so.
Then, months after receiving hundreds of thousands of applications predicated on its instructions, FDA turned around, pretended it never gave anyone any instructions about anything, imposed new testing requirements without any notice, and denied all one million flavored e-cigarette applications for failing to predict the agency's volte face. Worse, after telling manufacturers that their marketing plans were "critical" to their applications, FDA candidly admitted that it did not read a single word of the one million plans. Then FDA denied that its voluminous guidance documents and years-long instructional processes meant anything. Why? Because, the agency said, it always reserved the implied power to ignore every instruction it ever gave and to require the very studies it said could be omitted, along with the secret power to not even read the marketing plans it previously said were "critical." It was the regulatory equivalent of Romeo sending Mercutio on a wild goose chase—and then admitting there never was a goose while denying he even suggested the chase. Cf. William Shakespeare, Romeo and Juliet act 2, sc. 4.
FDA justifies its behavior with two principal arguments. First, FDA argues that its years' worth of regulatory guidance was not worth the paper it was printed on because it was hedged with cautious qualifiers and never guaranteed that any particular submission would be granted. Second, and most disturbingly, FDA argues that its capriciousness should be forgiven as harmless because the agency promises to deny petitioners' applications even if we remand to make the agency follow the law.
Today we reject both propositions. As the Supreme Court recently reminded us: "If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them." Niz-Chavez v. Garland, 593 U.S. 155, 172 (2021). No principle is more important when considering how the unelected administrators of the Fourth Branch of Government treat the American people. And FDA's regulatory switcheroos in this case bear no resemblance to square corners. As for the agency's harmless-error argument, the Supreme Court recently, unanimously, and summarily rejected it. Calcutt v. FDIC, 598 U.S. 623 (2023) (per curiam). We do the same here with the expectation that FDA will give petitioners the benefit of a full and fair regulatory proceeding on remand, notwithstanding its prior promises to reject their applications no matter what.
While the majority expected the FDA to comply with administrative law norms of fair notice and non-arbitrary treatment, the dissenters adopted a more permissive posture, concluding that vaping product manufacturers had failed to demonstrate that their products satisfied the FDA's regulatory standards.
This view may have commanded majorities on most circuit courts to consider the quesiton, but it did not command a majority of the Fifth Circuit. Wrote Judge Oldham:
FDA's counterargument boils down to this: Some other circuits agree with the agency. It is true that five circuits have sided with FDA, while the Eleventh Circuit and ours have found the agency acted arbitrarily and capriciously. But law is not a nose-counting exercise. Compare, e.g., Cochran v. SEC, 20 F.4th 194, 237 (5th Cir. 2021) (en banc) (Costa, J., dissenting) ("Five circuits have considered the question. By a count of 15-0, every judge deciding those cases has [found no jurisdiction.]"), with Axon Enter., Inc. v. FTC, 598 U.S. 175, 195–96 (2023) (unanimously finding jurisdiction in Cochran). Rather, the relevant question is whether our sister circuits have spotted a defect in petitioners' arguments that we have missed. With deepest respect for our colleagues who have seen this case the other way, we think not.
The question now is whether the Justice Department will seek Supreme Court review. Thus far, the Court has shown little interest in taking a vaping case, at least when cert petitions have been filed by manufacturers of denied products. Now that there is a clearer circuit split, and the FDA may be seeking review, perhaps the Court will change its mind.
The post En Banc Fifth Circuit Rejects FDA's Vaping Regulation "Surprise Switcheroo" appeared first on Reason.com.
]]>A bit of background. The Juliana litigation began in 2015, when a group of youth plaintiffs filed suit alleging, among other things, that the federal government's failure to control greenhouse gases violates their substantive due process rights to life, liberty, and property, including a right to a "stable climate system," violates their right to equal protection, and failed to uphold its "public trust" obligation to hold certain natural resources in trust for the people and for future generations.
As one would expect, the federal government sought to dismiss the case. Not only did the district court deny the motion to dismiss, it also denied the federal government's request to certify the decision for interlocutory review. Faced with the prospect of extensive discovery requests and a looking trial, the federal government sought a writ of mandamus and stay of the proceedings, first with the U.S. Court of Appeals for the Ninth Circuit, and eventually at One First Street.
While the Supreme Court did not grant the federal government's motions, it issued two orders—one in July and one in November 2018—that made clear the justices believed Judge Aiken had misapplied the relevant rules (including that governing interlocutory review) and not-so-subtly directing the Ninth Circuit to get the district court in line. The Ninth Circuit issued a stay and Judge Aiken reconsidered her prior decision to deny interlocutory review, leading to the Ninth Circuit's decision in January 2020 to dismiss the case on standing grounds.
One might have thought the Ninth Circuit's decision would have put an end to the Juliana litigation. After all, the Ninth Circuit's mandate instructed the district court to dismiss the case, so that is all there was left to do after the plaintiffs had exhausted their opportunities for en banc review and certiorari. But Judge Aiken had other ideas, and instead ordered the parties to have a settlement conference and granted the plaintiffs an opportunity to amend their pleadings so as to keep the case alive.
As one would have predicted, the federal government again sought to have the case dismissed, arguing that the district court was required to do so given the Ninth Circuit's mandate, and that even were that mandate not binding the plaintiffs continue to lack standing and failed to state viable constitutional or other claims upon which relief could be granted. Once again, Judge Aiken refused to let the case die, denying the federal government's motion, save for dismissing the plaintiffs' equal protection and Ninth Amendment claims.
From Judge Aiken's opinion:
The parties do not disagree that the climate crisis threatens our ability to survive on planet Earth. This catastrophe is the great emergency of our time and compels urgent action. As this lawsuit demonstrates, young people—too young to vote and effect change through the political process—are exercising the institutional procedure available to plead with their government to change course. While facts remain to be proved, lawsuits like this highlight young people's despair with the drawn-out pace of the unhurried, inchmeal, bureaucratic response to our most dire emergency. Top elected officials have declared that the climate emergency spells out "code red for humanity." Burning fossil fuels changes the climate more than any other human activity. The government does not deny that it has promoted fossil fuel combustion through subsidies; tax exemptions; permits for fossil fuel development projects; leases on federal lands and offshore areas; permits for imports and exports; and permits for energy facilities. Despite many climate change suits around the country, in 2023, the United States witnessed record-breaking levels of oil and gas production. And recent calculations conservatively estimate that the United States provides the oil and gas industry $20,000,000,000.00 annually in an array of subsidies.
Defendants maintain that, because tackling the climate crisis is complex, and no single remedy may entirely redress plaintiffs' harms caused by climate change, the judiciary is constrained by the Constitution from offering any redress at all. . . . Defendants contend that the issue of climate change is political in its nature, and that redress of plaintiffs' alleged injuries must be sought from Congress. … That unnecessarily narrow view overlooks one clear and constitutional path to shielding future generations from impacts of the onslaught of environmental disaster: that it is the responsibility of the judiciary to declare the law that the government may not deprive the People of their Constitutional guarantee of the God-given right to life. U.S. CONST. art III; U.S. CONST. amend. V; Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803).
Plaintiffs' allegations are that collective resolve at every level and in every branch of government is critical to reducing fossil fuel emissions and vital to combating climate change. That curbing climate change requires an all-hands-on-deck approach does not oust the Court from its province or discharge it of its duty under the Constitution to say what the law is. Marbury 5 U.S. at 170. Combatting climate change may require all to act in accord, but that does not mean that the courts must "throw up [our] hands" in defeat. . . .
The legislative and executive branches of government wield constitutional powers entrusted to those branches by the People through the democratic process. … So too, as part of a coequal branch of government, the Court cannot shrink from its role to decide on the rights of the individuals duly presenting their case and controversy. Marbury, 5 U.S. at 170. . . .
Some may balk at the Court's approach as errant or unmeasured, but more likely than not, future generations may look back to this hour and say that the judiciary failed to measure up at all. In any case over which trial courts have jurisdiction, where the plaintiffs have stated a legal claim, it is the proper and peculiar province of the courts to impartially find facts, faithfully interpret and apply the law, and render reasoned judgment. Such is the case here.
Among other things, Judge Aiken declares the existence of a substantive due process right to a "climate system that can sustain human life."
Exercising "reasoned judgment," the Court finds that the right to a climate system that can sustain human life is fundamental to a free and ordered society.
Defendants contend plaintiffs are asserting a right to be free from pollution or climate change, and that courts have consistently rejected attempts to define such rights as fundamental. Defendants mischaracterize the right plaintiffs assert. Plaintiffs do not object to the government's role in producing any pollution or in causing any climate change; they assert the government has caused pollution and climate change on a catastrophic level, and that if the government's actions continue unchecked, they will permanently and irreversibly damage plaintiffs' property, their economic livelihood, their recreational opportunities, their health, and ultimately their (and their children's) ability to live.
In this opinion, this Court simply holds that where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, damage property, threaten human food sources, and dramatically alter the planets ecosystem, it states a claim for a due process violation. To hold otherwise would be to say that the Constitution affords no protection against a government's knowing decision to poison the air its citizens breathe or the water its citizens drink. . . .
We cannot vow to uphold the Constitution's protection of a God-given right to life, and at the same time, exercise "judicial restraint" by telling plaintiffs that "life" cannot possibly include the right to be free from knowing government destruction of their ability to breathe, to drink, or to live. "It cannot be presumed that any clause in the [C]onstitution is intended to be without effect." Marbury, 5 U.S. at 174. Plaintiffs have adequately alleged infringement of a fundamental right and defendants' motion to dismiss is denied on this issue.
The most startling part of Judge Aiken's decision is not the sweeping assertions of constitutional rights, but her refusal to certify the opinion for interlocutory review, without comment. This is striking because it was Judge Aiken's prior refusal to permit interlocutory review which ultimately prompted two separate Supreme Court orders indicating that she had misapplied the standard in 28 U.S.C. §1292 and the Ninth Circuit's ultimate stay.
The last time around, Judge Aiken deigned to explain her actions, offering both an explanation for her initial denial of interlocutory review and her subsequent reversal. This time, however, her opinion offers not a word in defense of her decision to deny the federal government's request, even though nothing has changed that would alter the application of §1292's standards to this case, and the Supreme Court's admonitions remain on point. There is simply no other way to describe this aspect of her opinion other than as outright judicial defiance (and illustrates how some "shadow docket" orders are more a measured response to misbehavior by lower court judges than a sign of High Court activism).
Judge Aiken's decision is not merely defiant, but reckless as well. The Department of Justice has little choice but to seek review of this decision, even if through a writ of mandamus, and if the U.S. Court of Appeals for the Ninth Circuit does not intervene, the question could reach the Supreme Court, where the justices are already considering whether to grant review of other climate litigation.
Those filing various nuisance and tort suits against energy companies have been working hard to keep their cases out of federal court (and with much success). Whereas the energy companies characterize the suits as unbounded efforts to dictate energy policy in state courts, the plaintiffs in those cases stress that they are simply pursuing state law claims in state courts, and that such questions are not worth the Supreme Court's review. Suits like Juliana (and the recently filed Genesis B case), threaten to disrupt the plaintiffs "business as usual" narrative and offer the justices good cause to step in to make sure climate litigation does not get out of hand.
Many climate activists are cheering Judge Aiken's latest ruling. But should her shenanigans lead to premature High Court review of pending climate claims, they may come to rue the day Judge Aiken refused to let the Juliana litigation stay dead and buried.
* * *
For those interested, here are my prior posts on the Juliana litigation:
The post Federal Court Again Refuses to Dismiss Juliana Climate Case appeared first on Reason.com.
]]>The federal government is celebrating the ESA's 50th anniversary with proclamation's of the Act's success. Yet the celebration is unwarranted. After fifty years, it has become painfully clear that the law does very little to recover species from the brink of extinction, particularly on private land. The law's failure on private land is particularly important because a majority of species rely upon privately owned habitat. Not only does the ESA do little to conserve species on such land, a wealth of empirical evidence has shown the law can do much the opposite. The Act's punitive regulations can actually discourage private land habitat conservation.
I survey the Act's "success" in this forthcoming article, "Tarnished Gold: The Endangered Species Act at 50." Here is the abstract:
The ESA is arguably the most powerful and stringent federal environmental law on the books. Yet for all of the Act's force and ambition, it is unclear how much the law has done much to achieve its central purpose: the conservation of endangered species. The law has been slow to recover listed species and has fostered conflict over land use and scientific determinations that frustrate cooperative conservation efforts. The Article aims to take stock of the ESA's success and failures during its first fifty years, particularly with regard the conservation of species habitat on private land. While the Act authorizes powerful regulatory tools for species conservation, there are serious questions as to whether such tools are the most effective means of conserving species and the habitats on which they rely. Given that most species rely upon private land for their survival, the Act's ability to foster private land conservation is will affect the law's overall success.
In terms of the Act's failure to conserve species, here are a few salient points discussed in the paper.
The paper goes through this evidence and also surveys the empirical research on what sorts of measures appear to be more or less helpful in recovering species. In short, the direct acquisition and management of habitat, where adequately funded, does appear to help many species. So do direct interventions, such as predator control, where applicable. Subjecting private landowners to regulatory restrictions on the use or modification of potential habitat, on the other hand, appears to do very little and (as noted above) in some cases does more harm than good.
Conserving endangered species in the wild is a worthwhile goal, and one I actively support. Unfortunately, the primary law used for this purpose is not up to the job.
[Note: My data departs from that of the FWS because the agency removed a species–the Tumamoc Globeberry–from the species database earlier this year, even though the species had been listed, and was then delisted in 1993. I'm still investigating why this occurred. Time permitting, this will be the subject of a separate post.]
The post The Endangered Species Act at 50: Still Not Recovering Species After All These Years appeared first on Reason.com.
]]>On December 18, the Fifth Circuit rejected the prosecutor's appeal of the district court's injunction in Netflix v. Babin. Among other things, he sought refuge under Younger abstention (a favorite of FedCourts students everywhere) to claim the federal courts should stay their hand, but to no avail.
Here's Judge WIllett's summary of the decision:
Younger abstention is one of a handful of federalism-flavored carveouts to a federal court's "virtually unflagging obligation" to exercise congressionally conferred jurisdiction. Out of respect for the legitimate interest of the state, and to avoid needless friction, federal courts may not interfere with an ongoing state criminal proceeding, so long as the defendant being prosecuted has an adequate opportunity to raise constitutional challenges in the underlying state forum.
A state has no legitimate interest, however, in a prosecution brought in bad faith or to harass. Nor, for that matter, does a defendant have an adequate opportunity to assert constitutional violations in the state proceeding when the prosecution itself is the constitutional violation. Thus, in exceptional cases in which a state prosecutor is credibly accused of bad faith and has no reasonable hope of obtaining a valid conviction against the defendant, comity-infused deference gives way, and a federal court may exercise its equitable power to enjoin the prosecution.
In this case, a Texas state prosecutor, Lucas Babin, criminally charged Netflix for advertising and promoting child pornography based on its streaming of Cuties, a controversial film starring preteen girls who participate in a dance competition. Soon after Netflix asserted its First Amendment right to stream and promote Cuties, Babin multiplied the first indictment into four, selectively presented evidence to the grand jury, and inexplicably charged Netflix for a scene that involved a verifiably adult actress. Based on these and other allegations of bad faith, Netflix sought and successfully obtained a preliminary injunction against Babin and his prosecution. Babin now appeals, arguing that the district court clearly erred in finding bad faith and abused its discretion by declining to abstain under Younger.
At this preliminary stage, and on the fact-intensive record before us, we cannot conclude that the district court erred. With the benefit of a seven hour evidentiary hearing, including Babin's own testimony, the district court was best positioned to make the largely credibility-based determination of bad faith. The findings underlying that determination, along with the inferences drawn from them, are not clearly erroneous, and they likely warranted injunctive relief under what we have historically understood to be—and continue to recognize as—a narrow exception to Younger abstention. We accordingly AFFIRM.
The post Fifth Circuit Rejects Younger Abstention Claim by Prosecutor Seeking to Prosecute Netflix for Airing "Cuties" appeared first on Reason.com.
]]>In my earlier post, I criticized arguments made by former Attorney General William Barr and AEI's Adam White in support of certiorari in American Petroleum Institute v. Minnesota, a case currently under consideration at One First Street. AG Barr has now responded, and I reproduce his reply below, along with my brief rejoinder.
I am grateful to Professor Jonathan Adler for agreeing to publish my response to his blog post on API v. Minnesota, a case pending before the Supreme Court.
Some background: the case arises from Minnesota's putative state-law claims, filed in its own state courts, against several out-of-state private energy firms and an energy trade association. Minnesota alleges that by selling oil and gas around the world and advocating for their industry, these defendants defrauded the public and changed "the Earth's energy balance," resulting in alleged harm to the state and its citizens. Minnesota claims that the energy firms must disgorge their profits to pay for this alleged damage. The question the defendants have asked the Supreme Court to resolve is whether they may remove the case to federal court. On the merits, the defendants add that state law doesn't reach cases alleging liability for global emissions from the use of oil and gas. That's a federal question. States are not national, much less planetary, cops.
In his blog post, Professor Adler contends that the cases cannot be removed to federal court, and he further takes (or appears to take) the position that state law can govern global greenhouse gas emissions. He has also made these arguments in a law review article.
Professor Adler's blog post takes particular aim at my Wall Street Journal op-ed with Adam White, and amicus brief I and my co-counsel at the Boyden Gray firm submitted on behalf of the American Free Enterprise Chamber of Commerce. Professor Adler agrees that we make "several strong policy arguments" against lawsuits such as Minnesota's, but he disagrees with our legal arguments.
On closer inspection, however, perhaps Professor Adler and I agree on this ultimate point: Minnesota should lose on the merits.
First, some history. As we argue in the amicus brief, the law of transboundary pollution has always been a matter of general law, or, as modern jurists would put it, a matter of "federal common law." A general body of law is essential to the orderly operation of our compound republic. The Constitution, as Chief Justice Marshall put it in McCulloch v. Maryland, doesn't "partake of the prolixity of a legal code." It's a small set of instructions and powers to get the national government up and running. The Constitution, in particular, says precious little about how judges should decide interstate and international disputes that would undoubtedly arise among the states and their citizens and residents.
It didn't have to. As Professor Stephen Sachs has documented, at the time of the Founding and throughout the nineteenth century, judges were understood to find law, not to make it. This was divided into two kinds—local law, such the law of property, which varied from place to place, and general law, which governed everywhere, and thus applied in interstate or international cases. This included cases involving disputes among merchants as well as border disputes, water disputes, or transboundary public nuisances; in these cases, judges would resort to the general law or "the law of nations" to find the principles that governed the dispute before them. Judges wouldn't apply a plaintiff state's version of the law in these disputes, since this would essentially allow the state to be a judge in its own cause.
Congruent with this, before the New Deal, courts also enforced a territorial approach to personal jurisdiction. Even if Minnesota claimed that pollution emitters in North Dakota were harming the state, Minnesota couldn't hale the North Dakota emitters to court. So, most of these cases arose under the Supreme Court's "original jurisdiction" to hear disputes brought by a state.[1] The Supreme Court, of course, wouldn't apply Minnesota law to the emitters in North Dakota. Rather, the Supreme Court would have applied the general law.
As with so many other areas of the law, things changed during the New Deal. Famously, in Erie Railroad, Justice Brandeis abandoned the idea of a "general common law" in diversity of citizenship cases. The Court also expanded the jurisdiction of states in International Shoe, discarding earlier territorial rules for expansive and vague notions of "fair play and substantial justice." These decisions, in spirit, threatened to upend the general law, and to leave no neutral body of law to resolve necessarily interstate legal disputes, including disputes about choice of law, state borders, water rights, and yes, transboundary pollution. What a mess.
Erie's synthesis, however, was not without an antithesis. The same day it decided Erie Railroad, the Supreme Court recognized in Hinderlider v. La Plata River & Cherry Creek Ditch Co. that general law, or what the Court now styled as "federal common law," still applied to some exclusively interstate or national questions. One can think of this as a form of "preemption." But a better way to think about it is this: States are sovereigns with borders, and their law accordingly has limits. Beyond those limits, federal common law or federal statutes, not a self-serving body of state law, must fill the void. The choice of law in these disputes, as Henry Hart would say, is inherently federal.
In Milwaukee I, the Supreme Court confirmed that disputes that "deal with air and water in their ambient or interstate aspects" are governed by federal common law. Illinois v. City of Milwaukee, 406 U.S. 91, 103 (1972). The Court also held that interstate nuisance cases arise under the federal "laws" for purposes of federal-question jurisdiction, and so, could be entertained by federal district courts. Id. at 99–101.
Milwaukee I's logic effectively decides the merits in favor of the defendants in API v. Minnesota. As the Supreme Court later explained in Ouellette, a case Professor Adler cites with approval, "the implicit corollary of [Milwaukee I] was that state common law was preempted."
Professor Adler makes several points in response.
First, he stresses the unanimity of federal courts. But according to Professor Adler's article, the only court that has squarely addressed the merits so far is the Second Circuit in City of New York, a case arising under diversity jurisdiction. And the Second Circuit disagreed with Adler on the merits. Several courts have rejected the argument for removal to federal court, but that shouldn't do the plaintiffs much good if state courts must dismiss these suits on the merits upon their return from federal court.
Second, Professor Adler argues that a trio of cases that follow Milwaukee I—Milwaukee II, Ouellette, and AEP—mean that state law over transboundary emissions survives. But these cases don't support the application of Minnesota law against these defendants. Quite the opposite.
Milwaukee II held that nuisance claims seeking to enjoin discharges of sewage into interstate navigable waters were, in the Court's words, "displaced" by the Clean Water Act's extensive permitting and regulatory regime for sources of water pollutants. In footnote 4, however, the Supreme Court made clear that Milwaukee II was not deciding whether "state law is also available."
Ouellette is more interesting, and Professor Adler rightly focuses on it. There, Vermont residents sued a New York company under Vermont law, seeking to enjoin the company from discharging pollutants into Lake Champlain. The Court held that because interstate nuisance law was federal before the Clean Water Act, and the Clean Water Act had displaced that field of federal common law for water pollution, Vermont state law could not apply to a New York source. The only exception was one Congress expressly preserved in a savings clause: an out-of-state source could be sued under that source's state law. To put it more concretely, Vermont residents could sue the New York source only under New York law. This gave Vermont residents no more protection than New York residents enjoyed under local law, and did not allow New York to fashion a body of law for out-of-state sources.
In AEP, the Supreme Court held that the federal common law of nuisance for air pollution had been displaced by the Clean Air Act, at least insofar as it applies to the greenhouse gas emissions of electric utilities operating in the United States. In remanding the case to the court of appeals, the Court said that whether the law of states where the electric utilities operate could provide a claim for relief hadn't been briefed by the parties and could be decided on remand.
Ouellette and AEP stand for the unremarkable proposition that transboundary pollution doesn't become a state-law race to the courthouse just because federal common law has been displaced by a federal statute. This logically follows from the federalism canon, which "requires Congress to enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power." Sackett v. EPA, 598 U.S. 651, 679 (2023) (cleaned up). Therefore, if an issue was beyond the authority of a state before the Clean Air Act—a point Adler doesn't dispute and Milwaukee I supports—it remains out of reach now. The Clean Air Act could not implicitly empower states to regulate interstate or international air pollution. This is not just the view of "energy companies": it is the view of Ouellette taken by the Solicitor General of the United States and the Department of Justice when I was Attorney General (see here, page 26 et seq), before this Administration changed course.
Professor Adler seems to agree, at least at times, with this reading of Ouellette and AEP. Professor Adler argues that Ouellette only allows state law lawsuits that rely "upon the substantive law of the source state." And he further argues "that the exact same principles apply to the Clean Air Act." But if Ouellette's logic applies to this case, then Minnesota's suit should be dismissed forthwith. Minnesota is purporting to sue out-of-state companies for out-of-state emissions under Minnesota law. That is prohibited by Ouellette, which, to quote the case, "precludes a court from applying the law of an affected State against an out-of-state source." If Professor Adler and I agree on this point, then our dispute comes down to a technical question about the well-pleaded complaint rule, not the ultimate merits. But perhaps I misunderstand.
For those interested, our amicus brief, as well as the petition for certiorari, address in detail why the "well-pleaded complaint" rule is not a barrier to hearing this case in federal court, and I won't repeat those arguments again. I will merely respond to some of Professor Adler's critiques.
Professor Adler argues my brief would call on the Court "to disregard over a century of consistent interpretations" of the federal-question jurisdiction statute. Not quite.
At the outset, the law on federal-question jurisdiction has not been "consistent." Far from it. The law is so muddled Chief Justice Roberts has likened it to a Jackson-Pollock canvas. The mess can be traced back to an 1894 decision where an anti-reconstruction Court, over Justice Harlan's dissent, badly misconstrued federal law to prevent removal based on federal defenses, defeating the core purpose of federal removal, as I explain in the amicus brief.
But the Supreme Court doesn't need to revisit that precedent here, because this case involves an inherently federal claim masquerading as a claim under state law, not a federal defense. What the Court should do is avoid extending its original mistake by denying removal here. This is not, as Adler suggests, a "heavy lift."
The Supreme Court, to be sure, has done a poor job of providing guidance on the limits of the well-pleaded complaint rule. Many federal courts have read that guidance narrowly and essentially taken the position that they will greenlight artful pleading until the Supreme Court speaks more clearly. That doesn't mean the result they reach is the right one, however. Judge Stras, on the panel below, urged the Supreme Court to clear up the muddled doctrine and recognize these cases belong in federal court. That'd be more consistent with the original meaning of the law, as I explain in my brief, and—contra Adler—this case is eminently "cert. worthy." At least Justice Kavanaugh has suggested that he agrees; and the recent relisting of this case suggests that others on the Court may be coming around to that view. I certainly hope that is the case.
[1] International air pollution disputes would sometimes be decided by establishing international tribunals to arbitrate the dispute under the law of nations. A classic example is the Trail Smelter case between the U.S. and Canada.
I appreciate AG Barr taking the time to respond to my blog post. I will offer only a few brief thoughts in reply.
Barr is correct that we agree on some points. We agree that under Milwaukee I, common law claims alleging harms from interstate pollution were goverened by federal common law, and that this made a good deal of sense. Indeed, there is even an argument that downstream and downwind jurisdictions were better protected by such a regime than they would be for decades under federal pollution control statutes. We further agree that under the logic of Milwaukee I, any claim filed by a state or locality alleging harms from interstate pollution would have raised federal common law claims and would have been governed by the federal common law, whether or not the plaintiffs sought to advance putatively state law claims.
That was arguably the law in 1972. It is not the law now. For good or ill, the Supreme Court abandoned this regime. First, in Milwaukee II, the Court held that the mere enactment of federal law addressing interstate pollution displaces the preexisting federal common law, such as it is no longer there. While Milwaukee II concerned the effect of the federal Clean Water Act on water pollution-related claims, the Court's subsequent AEP decision adopted the exact same approach for air pollution, inclding greenhouse gases. Whatever the type of pollution, Milwaukee II and AEP make clear that there is no federal common law to govern the claims.
So what happens when a plaintiff files suit alleging harms from pollution that crosses state lines? State law governs such claims. How do we know? Because that is what the Supreme Court expressly held in Ouellette. While noting that such claims had, at one time, been governed by federal common law, the Court recognized that federal common law had been completely ousted by federal environmental statutes, but that state common law had not been. Rather, the Court explained, state common law claims were only preempted to the extent Congress had expressly chosen to preempt them (which, given the broad savings clauses such laws contain, is not much at all.) As Judge Rao explained in her opinion in DC v. ExxonMobil: "In the Clean Air Act, Congress displaced federal common law through comprehensive regulation, but it did not completely preempt state law, nor did it provide an independent basis for removal, as it has done in many other statutes." Thus, in Ouelette, the plaintiffs were allowed to proceed with their claims under state law, and were ultimately able to obtain a substatial settlement.
Barr cites the Supreme Court's admonition in Sackett that Congress must "enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power," but completely misses the point. The pre-existing balance was one that left states free to adopt pollution control policies without federal interference. Thus if federal law is to preclude states from pursuing state-law claims against polluters, the burden is on those calling for such preclusion to find "exceedigly clear language" from Congress to that effect.
Does this mean anythign goes? Of course not. Minnesota and other climate plaintiffs will ultimately have to substantiate their claims under applicable state law, and do so within applicable constitutional constraints (such as the Due Process Clause) which may limit the nature of their claims or the relief they may obtain. The question now is merely whether the mere fact of filing such claims, and seeking judicial redress for interstate pollution, necessarily implicates federal law and justifie removal into federal court. Here the law is clear: There is nothing inherently federal about such common law claims, and there is no reason such claims should be heard in federal court. The circuit courts have been unanimous on this point and, so long as they follow current law, the justices should be as well.
The post William Barr Responds on American Petroleum Institute v. Minnesota appeared first on Reason.com.
]]>The unanimous opinion, written by Judge Neomi Rao, is quite clear and direct. It was joined by Judges Greg Katsas and Florence Pan. Here is how it summarizes the decision:
The District of Columbia sued several energy companies in the Superior Court of the District of Columbia, alleging the companies violated District law by making material misstatements about their products' effects on climate change. The defendants removed the case to the federal district court, which determined it lacked jurisdiction and remanded.
We agree that remand was proper. Under the time honored well-pleaded complaint rule, it is the cause of action chosen by the plaintiff that governs whether a lawsuit may be filed in federal court. Here, the District did not invoke a federal cause of action but relied instead on the District of Columbia's consumer protection statute. The companies raise what amount to federal defenses, but that is not enough to establish federal jurisdiction over the District's claims.
The opinion makes clear that this is not a particularly close question, and aligns with that of every other federal circuit court to consider the question. The panel that heard the claim was about as favorable for the oil companies as they could have hoped for, and their claims still still went nowhere. The ruling further supports the arguments I made in my post last week explaining why these cases are not cert-worthy.
The District's lawsuit alleges that oil companies engaged in "greenwashing" by downplaying the contribution their products make to global climate change, leading consumers to purchase and consume more fossil fuels than they would have otherwise. I find this claim somewhat implausible, but that is irrelevant to the legal question at hand in this case, which is whether the District's claims necessarily raise federal questions and are preempted by federal common law. Yet as Judge Rao's opinion explains, these arguments do not work.
That oil companies would like to claim that the District cannot pursue climate change-related claims in the District's courts because such claims are preempted by the federal common law of interstate nuisance. The problem is that the federal common law governing interstate pollution has been completely displaced by federal environmental statutes, while state common law has not been, even when applied to interstate pollution. Thus, not only could the District's claims not have been pleaded as a federal common law action, there is no complete preemption to justify removal of these claims.
From Judge Rao's opinion for the court:
Although they recognize the Clean Air Act has displaced the federal common law of interstate air pollution, they maintain that this fact is irrelevant to the jurisdictional question of whether removal is proper. They contend that state law suits about interstate emissions are barred by federal common law as a jurisdictional matter, and therefore that the District's complaint must be understood as bringing a federal common law action. The jurisdictional question, they insist, is distinct from the merits determination of whether there is a remedy under federal common law.
The Companies' argument is foreclosed by the doctrinal underpinnings of federal common law and by numerous Supreme Court decisions. We can find no support for the suggestion that federal common law has the Schrödinger quality advanced by the Companies—where one does not know if it is alive or dead until the case is removed to federal court. The Court has repeatedly emphasized that when Congress "speak[s] directly to a question," that legislation displaces federal common law. Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625 (1978). . . .
In the Clean Air Act, Congress displaced federal common law through comprehensive regulation, but it did not completely preempt state law, nor did it provide an independent basis for removal, as it has done in many other statutes. See, e.g., 28 U.S.C. §§ 1442, 1452, 1453 (allowing removal of suits against federal officers, claims related to bankruptcy, and class-action suits). It would be inconsistent with Congress's directives and the Supreme Court's decision in American Electric for this court to conclude that federal common law persists solely for the purpose of removing the District's CPPA claims to federal court.
When Congress legislates to displace federal common law, the statute governs the extent to which state law is preempted. Milwaukee II, 451 U.S. at 312–13 (explaining "[t]he enactment of a federal rule in an area of national concern, and the decision whether to displace state law in doing so, is generally made not by the federal judiciary, purposefully insulated from democratic pressures, but by the people through their elected representatives in Congress") (emphasis added). For example, the Supreme Court concluded that the Clean Water Act displaced the federal common law of interstate water pollution. See id. at 317. The Court later considered whether state common law pollution actions were preempted. In doing so, the Court assessed the question of preemption entirely as a matter of statutory interpretation, stating that the relevant question was "whether the [Clean Water] Act pre-empts [state] common law to the extent that [common] law may impose liability." Int'l Paper Co. v. Ouellette, 479 U.S. 481, 491 (1987). The Court repeatedly emphasized Congress's directives in the statute, rather than the preemptive effect of (any residual) federal common law. See id. at 491–500. And while the Court held the particular state-law claim at issue was preempted under the Clean Water Act, it held that other state-law claims were not. Id. at 497.
Ouellette is directly analogous to the question before us, and the Supreme Court has explicitly signaled that courts should apply the Ouellette reasoning to state-law claims involving interstate air pollution. In American Electric, after holding the Clean Air Act displaces the federal common law of interstate air pollution, the Court stated that "the availability vel non of a state lawsuit depends, inter alia, on the preemptive effect of the federal Act." 564 U.S. at 429 (citing Ouellette, 479 U.S. at 489, 491, 497). Whether the District's suit may go forward thus depends on the preemptive effect of the Clean Air Act, not on the preemptive effect of federal common law.
The Companies' argument—that the District's state-law claims implicating interstate air pollution arise under federal common law even following the Clean Air Act—simply cannot be squared with American Electric or Ouellette. Under the pollution would remain barred by federal common law. Yet Ouellette explicitly concluded that some state-law claims could proceed despite the Clean Water Act, confirming that the federal common law of interstate pollution was no longer a jurisdictional bar to state-law pollution claims. Ouellette, 479 U.S. at 497.
The panel also joined the other federal circuit courts to consider this question in rejecting other potential bases for removal, including the federal officer removal statute and the Outer Continental Shelf Lands Act.
As I have noted in prior posts, there are reasons to question some of the premises underlying these lawsuits, and there are strong policy arguments from addressing the issues raised in the district's suit at the federal level, and not in state court, but those are policy arguments that should be addressed to Congress, and not to federal courts.
The post D.C. Circuit Rejects Oil Company Attempt to Remove District's Climate Suit to Federal Court appeared first on Reason.com.
]]>The new case, Genesis B. v. Environmental Protection Agency, argues that the EPA has violated the constitutional rights of the plaintiffs by failing to act more aggressively to reduce greenhouse gas emissions. Specifically, the Genesis plaintiffs argue that the EPA, and the federal government more broadly, have violated the plaintiffs' rights to Equal Protection and Due Process under the Fifth Amendment. Both sets of claims ask the courts to go well beyond existing law. For the former, the plaintiffs ask the courts recognize children as a protected class for the purposes of Equal Protection. For the latter, they claim that the EPA's failure to regulate more aggressively violates the plaintiffs right to life and their "fundamental right to a life sustaining climate system." To say these are audacious claims is an understatement.
The federal government's motion to dismiss should write itself. For starters, the plaintiffs face serious standing hurdles, particularly with regard to redressability. Standing is what ultimately grounded the Juliana litigation (though the judge has sought to revive it), and as this case was also filed within the U.S. Court of Appeals for the Ninth Circuit (specifically, the Central District of California), standing concerns will cast a long shadow over this case too.
But even should the plaintiffs get past standing, substantial hurdles will remain, not the least of which is that it is based upon highly contestable constitutional premises that would remake substantial parts of existing law, such as the claim that children should be treated as a suspect class or that the federal government has a constitutional obligation to take regulatory action to protect the lives or well-being of citizens against privately caused harms. The latter claim, in particular, calls for the de facto overruling of DeShaney v. Winnebago County in the environmental context and the recognition of a new fundamental right for which there is little basis in current law (let alone the sort of history and longstanding tradition called for under Glucksberg).
Barring some dramatic change in the federal courts, I would not expect this case to go very far. As with Juliana, the question is not whether the plaintiffs will lose, but when and on what basis. There is also a question as to whether filing of this case, at this time, affects the Supreme Court's appetite to revisit climate litigation.
As I noted earlier this week, the justices appear to be giving serious consideration to granting certiorari in American Petroleum Institute v. Minnesota. On the merits, I do not believe that case is cert worthy, as I believe the arguments made by the energy companies clearly fail under current law (as court after court has concluded). The strongest argument for granting certiorari in that case is not that it si legally warranted, but that the accretion of climate change litigation should command the High Court's attention before it gets out of control. For that reason, this was quite the week to file an ambitious new climate claim in federal court. (Apparently the plaintiffs wanted to file "on the 75th anniversary of the Universal Declaration of Human Rights.")
The plaintiffs in Genesis B. v. EPA are asking for federal courts to pay more attention to climate claims. I would suggest they should be careful what they wish for.
The post The Next Kids Climate Case: Genesis B. v. EPA appeared first on Reason.com.
]]>Specifically, the Court granted petitions filed by the Solicitor General and Danco Laboratories (the maker of Mifeprex, a brand of mifepristone). Interestingly enough, the Court did not grant the cross-petition for certiorari filed by AHM.
Based upon the questions presented in the two granted petitions, here is what will be before the Court.
First, and quite significantly, is the threshold question of standing. As I have blogged repeatedly (see posts below), I do not believe that the plaintiffs can satisfy the requirements of Article III standing under current doctrine. Both granted petitions ask the Court to consider standing–and even if they hadn't, because standing presents a threshold jurisdictional question, it would be a part of the case. The centrality of standing to this litigation is particularly interesting because (as happened in the California v. Texas ACA litigation) traditional Article III standing arguments cut strongly against litigants seeking a conservative policy outcome.
The petitions also ask the Court to consider whether the Fifth Circuit was correct to uphold the district court's injunction against the FDA's 2016 and 2021 decisions to revise and relax the conditions placed on the prescription of mifepristone. As framed in the petitions, the questions encompass both the conclusions reached on the merits (that the FDA's actions were arbitrary and capricious) and the relief ordered (a preliminary injunction).
What is not included in the cert grant is whether the Fifth Circuit was correct to reject AHM's attempts to challenge the FDA's initial approval of mifepristone in 2000 as untimely. As I have noted previously, I think this part of the Fifth Circuit's decision was definitely correct, as AHM's arguments relied upon an unduly aggressive reinterpretation of the "reopener" doctrine. The Supreme Court will also not review AHM's substantive argument that the FDA improperly approved mifepristone in 2000.
The bottom line is that the Supreme Court will consider whether the plaintiffs had standing to bring this case and, if so, whether the FDA properly relaxed its regulation of mifepristone in 2016 and 2021. The decision here will undoubtedly affect the availability of mifepristone, but the case no longer includes the question of whether the FDA should have approved mifepristone for the purpose of terminating pregnancies in the first place.
I have blogged a fair amount about the issues in this litigation, and plan to do more. Accordingly, I am indexing my posts here, and will update this list as I blog additional posts.
The post BREAKING: Supreme Court to Consider Fifth Circuit's Abortion Pill Decision appeared first on Reason.com.
]]>Also yesterday, the Court granted the motion to expedite briefing on the petition for a write of certiorari before judgment, albeit on a slightly looser schedule than the special counsel had recommended. The Court has directed Trump's attorneys to file their response no later than December 20.
The question presented by the petition focuses on the question of presidential immunity, which is an issue in the special counsel's investigation, as well as other litigation arising out of the former President's efforts to prevent certification of the 2020 election results. The QP reads:
Whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.
In my view, the Court should answer this question in the negative–which was also the conclusion of a 2000 memo from the Office of Legal Counsel–but serious questions may remain about which of Trump's actions can appropriately considered to be illegal.
The post Supreme Court to Decide Whether to Decide Trump May Claim Presidential Immunity appeared first on Reason.com.
]]>API v. Minnesota is one of several cases filed by state and local governments against energy companies seeking recompense for the harms caused by climate change, including the expenses state and local governments must bear to improve and adapt infrastructure to account for a warmer world. Because the federal common law of interstate nuisance is entirely displaced by the Clean Air Act, nearly all of these suits have been filed in state courts. Seeking to argue these cases are preempted, the energy company defendants have sought–unsuccessfully–to have these cases removed to federal court. Their removal arguments have been rejected in the 1st, 3rd, 4th, 6th, 8th, and 9th Circuit Courts of Appeals and, thus far, the Supreme Court has shown little interest in reviewing these decisions.
The apparent relisting of API v. Minnesota suggests one or more justices may think this case is worth a second look, despite the lack of a meaningful circuit split. Justice Kavanaugh previously indicated his interest in hearing a similar case, so perhaps he is writing a dissent from denial of certiorari, or working to convince his colleagues this case is worthy of the justices' attention.
The primary issue in the case is whether there are grounds to remove Minnesota's suit to federal court. A unanimous panel of the U.S. Court of Appeals for the Eighth Circuit rejected the removal argument. For reasons I explained in this post (and addressed at longer length in this article) the Eighth Circuit was entirely correct.
Last week, former Attorney General William Barr and my friend Adam White of the American Enterprise Institute argued in the Wall Street Journal that this case "belongs in federal court, not in a Ramsey County courtroom." Their article makes several strong policy arguments for preferring federal policymaking over state climate change litigation as a means of addressing climate change. What is lacking, however, is a legal basis for yanking these cases into federal court.
Write Barr and White:
The federal courts have jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States," according to the U.S. Code. When such cases are filed in state courts, they can be "removed" to the federal courts. . . .
Early on, Congress recognized the need to ensure that the federal judiciary remained firmly in control of interstate litigation and, eventually, of federal questions more broadly. A plaintiff may be the master of his own case in some ways, but a defendant is entitled to the protections of federal laws, including laws preserving a defendant's access to federal judicial review of genuinely federal issues. And the people—through their elected representatives—are entitled to the constitutional process for making the law. . . .
Choices about how to handle energy policy must be made through the Constitution's democratic processes, not by federal judges or administrative fiat—and certainly not by state and local judges. The Minnesota case belongs in federal court to ensure that federal law governs Mr. Ellison's gambit.
Barr and White are entirely correct that all defendants, even oil companies, are "entitled to the protections of federal laws." The problem here is that there are no federal laws divesting state courts of jurisdiction to hear these sorts of claims, let alone any federal laws that can be plausibly interpreted to preempt state-law causes of action for climate change. The "gambit" here is the effort by energy companies to convince the Supreme Court that the general rules of removal and preemption should be set aside in the context of climate change.
When the Supreme Court held unanimously that the federal Clean Air Act displaces the federal common law of interstate nuisance it expressly reaffirmed precedents holding that federal environmental laws do not preempt state law claims against polluters, provided they are based on the law of the source state. Further, because the federal common law of interstate nuisance has been displaced, it cannot preempt state law claims for interstate pollution either. These are points I make at length in the article linked above.
Barr and White are correct that "choices about how to handle energy policy must be made through the Constitution's democratic processes," but no one is suggesting otherwise. Nothing in the Minnesota lawsuit undermines the right of "the people—through their elected representatives" to enact laws governing climate change. Congress has unquestioned authority to enact laws governing greenhouse gas emissions and addressing the threats posed by climate change, and there is no doubt that should Congress choose to preempt state-law suits about climate change, such suits would be preempted. But Congress has yet to make any such choice.
In West Virginia v. EPA, the Supreme Court made clear that policy choices about "major questions," such as how federal energy policy should address the threat of climate change (if at all), must be made by the people's elected representatives in Congress. Even when the stakes are high, a federal agency like the EPA lacks the authority to rewrite federal laws to conform to its policy vision. Unelected regulators only have the power to regulate that has been delegated to them by Congress.
By the same principle, the economic or political importance of federal energy policy does not justify reconceiving federal environmental statutes or distorting federal law so as to remove state law claims to federal court, let alone to find such claims preempted, when Congress has not so provided. As in West Virginia v. EPA, the ultimate policy choice here is one to be made by the legislature. It can provide for removal or preemption of such claims should it choose to. But unless and until it does, federal courts should stay their hand. Six circuit courts of appeals have understood this. We will see if the justices do as well.
UPDATE: An amicus brief filed by William Barr on behalf of the American Free Enterprise Chamber of Commerce supplements the Barr-White op-ed's policy arguments, but they are no more availaing on the ultimate question.
First, the brief argues that the federal law of transboundary air pollution is "exclusive." This may well have been the case before the Supreme Court held that the enactment of federal pollution control legislation displaces the federal common law of interstate nuisance--and it may also be a good idea as a policy matter--but it is wrong as a matter of law. As noted in this prior post about the case and my longer article on the subject, the Supreme Court not only held in Milwaukee II that federal environmental statutes displaced the pre-existing federal common law governing interstate pollution, it further held in International Paper Co. v. Ouellette that state-law-based claims for interstate pollution may still be heard in state courts (albeit relying upon the substantive law of the source state), and that the only state-law-based claims that are preempted are those that are "incompatible" with those established by the relevant federal statute. Ouellette concerned the application of the federal Clean Water Act, but the Supreme Court made clear in AEP v. Connecticut that the exact same principles apply to the Clean Air Act. Curiously, Ouellette does not even merit a mention in Barr's brief.
The brief, like the op-ed, raises the reasonable fear that states may try to extra-territorialize their regualtory preferences and impose burdens on out-of-state activities. This is a legitimate concern, and one that may be addressed through other doctrines (such as Due Process or the Dormant Commerce Clause). It is not a justificiation for federal removal, however, let alone for preemption.
There is also a reasonable argument that the Supreme Court's entire displacement jurisprudence--from Milwaukee II to AEP--is off-base, having been invented so that the Court could extract itself from fact-intensive interstate pollution litigation. Under this argument, however, the defendants might find themsleves pulled from the frying pan and thrust into the fire, for were the federal common law of interstate nuisance not displaced, there would be no basis for barring such claims when brought under federal law, as there is no plausible argument that the Clean Air Act preempts such claims against most emitters. Is that really what Barr would like?
The amicus brief further argues that the Supreme Court took a wrong turn in 1894 (in Tennessee v. Union & Planters' Bank) in its interpretation of the federal statutes governing federal question jurisdiction and removal. Here again, the arguments may have merit as a matter of first principle, but it is quite a heavy lift to ask the courts to disregard over a century of consistent interpretations of rules that Congress enacted and could readily reform (particularly where, as here, the precedent concerns questions of statutory interpretation that Congress could readily fix and that the actual parties of the case have not brought into question).
The post Is Climate Change Going Back to the Supreme Court? (Minnesota Edition) [UPDATED] appeared first on Reason.com.
]]>Justice Jackson only concurred in the judgment. While she agreed that Acheson Hotels had become moot, she wrote separately to note her objection to granting Munsingwear vacatur as a matter of course. While acknowledging that this is the Court's "established practice," Justice Jackson argued that "when mootness ends an appeal, the question of what to do with the lower court's judgment, if anything, raises a separate issue that must be addressed separately." Instead of vacating the lower court judgement automatically once the case is rendered moot, Justice Jackson suggested, there should be some showing that vacatur is equitable in the given case.
On today's orders list, the Supreme Court GVR'd (granted, vacated and remanded) three separate cases in which lower court injunctions had been rendered moot. Justice Jackson concurred separately on each order to repeat her objectrion to automatic vacatur. Thus, in Payne v. Biden, Justice Jackson noted:
Although I would require that the party seeking vacatur establish equitable entitlement to that remedy, I accede to vacatur here based on the Court's established practice when the mootness occurs through the unilateral action of the party that prevailed in the lower court. See Acheson Hotels, LLC v. Laufer, 601 U. S. ___ (2023) (Jackson, J., concurring in the judgment).
A similar, though shorter, concurrence also accompanied the orders in Biden v. Feds for Medical Freedom and Kendall v. Doster.
The post Justice Jackson Really Does Not Like Munsingwear Vacatur appeared first on Reason.com.
]]>The opinion for the panel, by Chief Judge Sri Srinivasan, is a careful and reasoned exploration of the law of presidential immunity. It is also quite narrow, in that it does not determine whether the claims filed agaisnt Trump will or can ultimately succeed. Judge Greg Katsas joined the opinon in full, and Judge Judith Rogers concurred in part.
Judge Srinivasan's introduction, which begins after the jump, nicely summarizes the law of presidential immunity and describes the "objective" text for whether a President's conduct—and, in this case, his speech—is cloaked with immunity. This approach strikes as quite sound, and directly in line with the few Supreme Court precedents to bear on this question. (And for those who care about such things, was joined in full by an Obama and Trump nominee, and in part by a Clinton nominee.)
The opinion begins:
Since the Supreme Court's decision in Nixon v. Fitzgerald, 457 U.S. 731 (1982), Presidents have carried out their official responsibilities free from any exposure to civil damages liability. Nixon established a President's absolute immunity from civil damages claims predicated on his official acts. The object of a President's official-act immunity is to assure that he can fearlessly and impartially discharge the singularly weighty duties of the office.
The President, though, does not spend every minute of every day exercising official responsibilities. And when he acts outside the functions of his office, he does not continue to enjoy immunity from damages liability just because he happens to be the President. Rather, as the Supreme Court made clear in Clinton v. Jones, 520 U.S. 681 (1997), a President's official-act immunity by nature does not extend to his unofficial actions. When he acts in an unofficial, private capacity, he is subject to civil suits like any private citizen.
This appeal calls for us to apply those key decisional precedents on presidential immunity to a decidedly unprecedented event involving the presidency: the riot at the Capitol on January 6, 2021, just as Congress convened to tabulate the Electoral College vote and declare the person elected President. The plaintiffs in the cases before us are Capitol Police officers and members of Congress who were at the Capitol that day. They seek civil damages for harms they allege they suffered arising from the riot. Although they sue various persons, the sole defendant named in all the cases consolidated before us is former President Donald J. Trump.
The plaintiffs contend that, during President Trump's final months in office, he conspired with political allies and supporters to obtain a second term despite his defeat in the 2020 election. He allegedly advanced that cause before January 6 by repeatedly making false claims that the election might be (and then had been) stolen, filing meritless lawsuits challenging the election results, and pressuring state and local officials to reverse the election outcomes in their jurisdictions. Those efforts allegedly culminated in the 75-minute speech President Trump delivered at the rally on January 6. According to the plaintiffs, President Trump's actions, including ultimately his speech on January 6, sparked the ensuing riot at the Capitol.
President Trump moved in the district court to dismiss the claims against him, including on grounds of a President's official-act immunity from damages liability. The district court largely rejected his claim of immunity, and President Trump now appeals. The sole issue before us is whether President Trump has demonstrated an entitlement to official-act immunity for his actions leading up to and on January 6 as alleged in the complaints.
We answer no, at least at this stage of the proceedings. When a first-term President opts to seek a second term, his campaign to win re-election is not an official presidential act. The Office of the Presidency as an institution is agnostic about who will occupy it next. And campaigning to gain that office is not an official act of the office. So, when a sitting President running for a second term attends a private fundraiser for his re-election effort, hires (or fires) his campaign staff, cuts a political ad supporting his candidacy, or speaks at a campaign rally funded and organized by his re-election campaign committee, he is not carrying out the official duties of the presidency. He is acting as office-seeker, not office-holder—no less than are the persons running against him when they take precisely the same actions in their competing campaigns to attain precisely the same office.
President Trump himself recognized that he engaged in his campaign to win re-election—including his post-election efforts to alter the declared results in his favor—in his personal capacity as presidential candidate, not in his official capacity as sitting President. That is evident in his effort to intervene in the Supreme Court's consideration of a post-election lawsuit challenging the administration of the election in various battleground states. He expressly filed his motion in the Supreme Court "in his personal capacity as candidate for re-election to the office of President" rather than in his official capacity as sitting President. Trump Mot. to Intervene 3, Texas v. Pennsylvania, No. 22O155 (U.S. 2020). And he grounded his claimed right to intervene in the case in his "unique and substantial personal interests as a candidate for re-election to the Office of President" rather than in any official interest in exercising the office's duties. Id. at 24.
In arguing that he is entitled to official-act immunity in the cases before us, President Trump does not dispute that he engaged in his alleged actions up to and on January 6 in his capacity as a candidate. But he thinks that does not matter. Rather, in his view, a President's speech on matters of public concern is invariably an official function, and he was engaged in that function when he spoke at the January 6 rally and in the leadup to that day. We cannot accept that rationale. While Presidents are often exercising official responsibilities when they speak on matters of public concern, that is not always the case. When a sitting President running for re-election speaks in a campaign ad or in accepting his political party's nomination at the party convention, he typically speaks on matters of public concern. Yet he does so in an unofficial, private capacity as office-seeker, not an official capacity as office-holder. And actions taken in an unofficial capacity cannot qualify for official-act immunity.
While we thus reject President Trump's argument for official-act immunity at this stage, that result is necessarily tied to the need to assume the truth of the plaintiffs' factual allegations at this point in the proceedings. President Trump has not had a chance to counter those allegations with facts of his own. When these cases move forward in the district court, he must be afforded the opportunity to develop his own facts on the immunity question if he desires to show that he took the actions alleged in the complaints in his official capacity as President rather than in his unofficial capacity as a candidate. At the appropriate time, he can move for summary judgment on his claim of official-act immunity.
Because our decision is not necessarily even the final word on the issue of presidential immunity, we of course express no view on the ultimate merits of the claims against President Trump. Nor do we have any occasion to address his other defenses, including his claim that his alleged actions fall within the protections of the First Amendment because they did not amount to incitement of imminent lawless action: he did not seek appellate review at this time of the district court's denial of his First Amendment defense, but he could bring that issue before us in the future. We also do not opine on whether executive or other privileges might shield certain evidence from discovery or use as the litigation proceeds. Nor does our decision on a President's official-act immunity from damages liability in a civil suit treat with whether or when a President might be immune from criminal prosecution.
Instead, we hold only that, taking the allegations in the plaintiffs' complaints as true as we must at this point in the proceedings, President Trump has not demonstrated an entitlement to dismissal of the claims against him based on a President's official-act immunity. In the proceedings ahead in the district court, President Trump will have the opportunity to show that his alleged actions in the runup to and on January 6 were taken in his official capacity as President rather than in his unofficial capacity as presidential candidate.
Judge Katsas concurred separately, stressing the narrowness of the court's decision and the flexibility of the court's test.
The immunity question . . . turns on whether President Trump made the January 6 speech in an official or private capacity.
Today, we do not definitively resolve that question. Instead, we hold only that we cannot resolve it on a motion to dismiss. Our conclusion rests on two propositions persuasively established by Chief Judge Srinivasan's lead opinion. First, in certain limited contexts, courts may reliably conclude that a sitting President is speaking only in a private capacity as a candidate for re-election or as the leader of a political party. These include instances where the President speaks at a party convention, in a presidential debate, in a political advertisement, at a campaign rally, or at a party fundraiser. Second, the operative complaints plausibly allege that the January 6 speech involved this kind of purely private campaign speech. In particular, the complaints allege that the January 6 rally was organized by campaign staff and funded by private donors, and was neither facilitated by White House staff nor paid for with congressionally appropriated funds. Given those allegations, which remain to be tested on summary judgment or at trial, we cannot resolve the immunity question in President Trump's favor at this stage of the case.
As both opinions note, whether a President is a immune does not depend upon the President's intent or the political significance of a president's actions or remarks. Rather it is based upon an "objective" inquiry into the context of the President's speech. Further, the Court rejected both the broad claims of presidential immunity asserted by former President Trump, as well as the unduly stingy tests offered by the plaintiffs and the federal government.
Judge Rogers wrote separately, concurring only in part, on the grounds that she thought the opinion extended beyond what was necessary to affirm the district court's denial of the motion to dismiss.
The post Presidential Immunity Does Not Bar Suits Against Trump for His Conduct on January 6 appeared first on Reason.com.
]]>Political Science Professor Ron Hassner of the University of California at Berkeley was curious whether college students and others calling for Palestine to be "free" "from the river to the sea" understood what that slogan entails, so he conducted a survey to find out, and wrote up his results in the Wall Street Journal. His op-ed begins:
When college students who sympathize with Palestinians chant "From the river to the sea," do they know what they're talking about? I hired a survey firm to poll 250 students from a variety of backgrounds across the U.S. Most said they supported the chant, some enthusiastically so (32.8%) and others to a lesser extent (53.2%).
But only 47% of the students who embrace the slogan were able to name the river and the sea. Some of the alternative answers were the Nile and the Euphrates, the Caribbean, the Dead Sea (which is a lake) and the Atlantic. . . .
Would learning basic political facts about the conflict moderate students' opinions? A Latino engineering student from a southern university reported "definitely" supporting "from the river to the sea" because "Palestinians and Israelis should live in two separate countries, side by side." Shown on a map of the region that a Palestinian state would stretch from the Jordan River to the Mediterranean Sea, leaving no room for Israel, he downgraded his enthusiasm for the mantra to "probably not." Of the 80 students who saw the map, 75% similarly changed their view.
Hassner also reports that a majority of those surveyed who initially voiced support for a single Palestinian state moderated their views "when they learned it would entail the subjugation, expulsion or annihilation of seven million Jewish and two million Arab Israelis."
Hassner's survey focused on the implications of "from the river to the sea." I would not be at all surprised were surveys looking at claims Israelis are European colonizers or comparing civil and religious freedom across the Middle East to find similar levels of ignorance, and an equivalent moderation of views when respondents were presented with relevant history and context.
While some argue that universities (and others) should tamp down on free expression in order to quell discord on college campuses, Hassner's findings suggest universities might do better to double-down on their core mission: Educating their students and providing a forum for the presentation and examination of ideas. As Hassner found, something as simple as showing students maps of the Middle East significantly informs and affects their understanding of the current Israel-Hamas conflict. Now imagine what might happen if universities made a serious effort to sponsor substantive forums on the history of the conflict, presenting thoughtful proponents of the competing positions and laying bear the full complexity (and perhaps intractability) of the current situation, all the while modeling civil discourse for assembled students. This would do more than policing memes and chants. Universities, of all institutions, should believe in the power of education.
The post Is Support for "From the River to the Sea" Based Upon Ignorance? appeared first on Reason.com.
]]>A new paper, "How does economic freedom influence public health? Evidence from U.S. cities" by economists Justin Callais, Kelly Hyde, Ilia Murtazashvili, and Yang Zhou, forthcoming in the Southern Economic Journal, investigates the relationship between economic freedom and public health, and finds evidence that the former may be good for the latter. Here is the abstract:
Although there is substantial agreement how microeconomic forces—income, risk aversion—shape public health outcomes, there is substantial disagreement about the relationship between macroeconomic forces—market liberalization and economic freedom—on public health. In this paper, we investigate the relationship between public health, economic freedom, and wealth using a large sample of metropolitan-level data from the United States. We find that economic freedom does have a statistically significant and positive impact on general, physical, and mental health, but the overall results are small in magnitude. When we disaggregate the three areas of economic freedom, we find that areas with lower government spending and freer labor markets have the strongest positive effect on physical and mental health. However, our results are strongest for the richest group of respondents, suggesting that the economic freedom-health relationship is perhaps indirect, and shown through income.
The authors note that their findings undermine efforts "to blame market capitalism, globalization, and neoliberal policies forworsening mental and physical health in the United States." At the same time, they caution caution that there are reasons to question whether the findings show a causal relationship, in part because the research relies upon self-reported health data, but it nonetheless suggests the existence of health-related trade offs when government policies seek to improve public health.
The post Is Economic Freedom Good for Public Health? appeared first on Reason.com.
]]>Acheson Hotels had the potential to be a significant standing case. Here's how Justice Barrett described the case at the outset of her opinion.
Deborah Laufer has sued hundreds of hotels whose websites failed to state whether they have rooms accessible to the disabled. As the sheer number of lawsuits suggests, she does not focus her efforts on hotels where she has any thought of staying, much less booking a room. Instead, Laufer systematically searches the web to find hotels that fail to provide accessibility information and sues to force compliance with the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U. S. C. §12101 et seq. Ordinarily, the hotels settle her claims and pay her attorney's fees. But some have resisted, arguing that Laufer is not injured by the absence of information about rooms she has no plans to reserve. Only plaintiffs who allege a concrete injury have standing to sue in federal court. Laufer, these hotels have argued, is suing to enforce the law rather than to remedy her own harms.
Laufer was a serial suit filer. Indeed, as Justice Barrett noted, Laufer "singlehandedly generated a circuit split" on whether she satisfied the requirements for standing.
The case became moot after Laufer voluntarily dismissed her pending claims after her lawyer, Tristan Gilespie, was sanctioned by a federal court for alleged unethical conduct in his handling of these cases.
Although the Court could have proceeded to resolve the standing question presented in the case—standing, like mootness, is jurisdictional—a majority of the Court concluded dismissing the case on mootness grounds was the more prudent course. While Acheson Hotels raised the prospect that dismissing the case could invite strategic behavior, the Court gave Laufer the benefit of the doubt, while cautioning it might not exercise its discretion in the same way in a future case. It also vacated the judgment below, erasing Acheson Hotel's loss below.
Justice Thomas concurred in the judgment, arguing that the Court should have instead dismissed the case on standing grounds. As he summarized at the close of his separate opinion:
Standing ensures that courts decide disputes over violations of a person's rights, not a defendant's compliance with the law in the abstract. Because Laufer has not asserted a violation of a right owed to her, she has no standing to bring her Reservation Rule claims. The Court should not have avoided reaching that conclusion due to Laufer's eleventh hour tactics. I respectfully concur in the judgment because I would vacate and remand, with instructions to dismiss for lack of standing.
Justice Jackson also concurred in the judgment, but on different grounds. She agreed with the majority that the case should be dismissed as moot, but suggested the Court was wrong to vacate the decision below. While acknowledging that the Courts disposition was "consistent" with the Court's "established practice" of vacating the decision below when a case becomes moot due to the unilateral action of the party that prevailed below, she expressed her disagreement with the practice. Contrary to the presumption underlying the Court's approach to vacatur under United States v. Munsingwear, Justice Jackson noted that, in her view, "there is nothing inherently inequitable about not being able to pursue an appeal." Thus, Justice Jackson explained, she "would ordinarily not agree to the imposition of the vacatur remedy that was not fully discussed, much less established."
The Court's disposition in Acheson Hotel leaves open some significant questions of standing law. In recent years the Court has adopted a more restrictive approach to standing, most notably in TransUnion v. Ramirez, but there is no unanimity among the Court's conservative justices about how far to go on cutting back the scope of Article III standing, or on the theoretical basis for limiting judicial review. Addressing such questions, and related concerns about whether states should receive special solicitude under Article III, will be left to future cases.
The post Supreme Court Dismisses ADA Tester Standing Suit as Moot appeared first on Reason.com.
]]>Jarkesy presents three separate questions about the constitutionality of administrative adjudication at the SEC:
(1) Whether statutory provisions that empower the Securities and Exchange Commission to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment;
(2) whether statutory provisions that authorize the SEC to choose to enforce the securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine; and
(3) whether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection.
All three questions are at issue because the court below—the U.S. Court of Appeals for the Fifth Circuit—ruled against the agency on all three grounds. I was not particulary persuaded by two of the Fifth Circuit's conclusions, and explained why here.
By some accounts, Jarkesy threatens the very foundations of the administrative state. In this telling, a victory for the respondents will leave the federal government unable to ensure workplace safety, discourage corporate fraud or protect the environment. Jarkesy is unquestionably an important case, but it's a bit much to suggest it challenges "the legitimacy of the modern federal government." The case is really about the continued viability of agency adjudication as a means of enforcing regulatory schemes. This is a big deal, but is hardly threatens the viability of the administrative state nor "the destruction of the New Deal."
Should Jarkesy win on one or more of his claims (and I think it is likely he will prevail on at least one), this will require significant changes in the operations of some federal agencies. In particular, regulatory agencies that enforce their regulatory edicts before agency adjudicators will have to make changes. What those changes are, and how far-reaching the consequences of these changes will be, depends on which challenges succeed, but little in the case implicates (let alone threatens) the ability of agencies to issue regulations and enforce those regulations in federal court. Indeed, the core of Jarkesy's case is that agencies should be required to enforce their rules in federal court, not that they cannot issue rules or seek to have them enforced.
Although most commentary on Jarkesy has focused on the respondent's claims, and their implications, the more interesting question may be what comes next should Jarkesy prevail. Jarkesy's immediate aim is to prevent enforcement of the SEC's civil penalty order against him, either because the double-for-cause removal of SEC ALJs renders them unconstitutional, or because the SEC should not have been to prevent Jarkesy from defending himself in federal court in the first instance. Going forward, the question would be how to cure these constitutional infirmities (and whether some cures—such as eliminating for-cause removal protections for ALJs—would create constitutional problems of their own).
One way to resolve the constitutional questions in Jarkesy, suggested in a forthcoming paper by Christopher Walker and David Zaring, would simply be to allow defendants the option of removing SEC enforcement actions to federal court. This would maintain the current practice of agency adjudications, which can be less costly and time-consuming than the federal court alternative in many cases, but without unduly prejudicing the rights of defendants concerned they will not get a fair shake in front of the SEC's own adjudicators. As Walker summarizes in a post for Notice & Comment:
In certain circumstances such as here, the regulated party should have a right to remove an enforcement action from an in-house agency adjudication to an Article III federal court. This right to remove would avoid the constitutional issues presented in Jarkesy. It would also, in our view, result in better administrative policy, at least when it comes to the agency adjudications that implicate civil penalties or otherwise get close to the private-rights line. In so doing, the right to remove retains a well-established, effective alternative to federal court litigation—formal adjudication under the Administrative Procedure Act (APA)—if both the government and the regulated entity find that alternative to be preferable, without unilaterally expanding the regulatory authority of the SEC or the workload of the federal courts.
Congress could enact this right to remove by statute. And, we argue, the SEC should adopt it via internal administrative law, even before the Court decides Jarkesy. The SEC could and should certainly explore that option if the Supreme Court invalidates its in-house adjudication scheme on any of the three grounds raised in Jarkesy.
The interesting question is whether this is a resolution the Court could (or should) impose, or whether it is something for Congress or the SEC to do. As they note, the current Court has not been particularly restrained when providing relief in other recent administrative law cases, such as United States v. Arthrex, and some justices might find this to be a suitable remedy. In the alternative, it would be rather easy for Congress to create a presumptive right to remove agency enforcement actions from agency adjudications to federal court provided certain conditions are met (e.g. the agency is seeking certain sorts of penalties). However it is done, allowing a right of removal would leave agency operations largly intact and address the most glaring constitutional concerns Jarkesy is presenting to the Court.
The post SEC v. Jarkesy and the Future of Agency Adjudication appeared first on Reason.com.
]]>Basic t-shirts, mugs and glassware with the VC logo are available here. Should inspiration strike, we may well offer more. With that in mind, feel free to provide recommendations and ideas for potential items in the comments. VC merchandise remains something of an experiment, and we welcome feedback.
The post The Volokh Conspiracy T-Shirts and Mugs You've Always Wanted (or at least the best of what we've come up with). appeared first on Reason.com.
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