Yesterday, I expressed frustration how the Court narrowly construed, and indeed reimagined, the record in Bondi v. VanDerStock. Worse still, the Court applied Salerno to reject a facial challenge to a regulation. This move amply rehabilitates Chevron. And why did the Court do this? In my jaundiced view, the Justices were looking for a narrow way to reverse the Fifth Circuit.
Another day, another reversal of the Fifth Circuit. This time, the Court unanimously remanded the en banc Fifth Circuit in FDA v. Wages and White Lion Investments, LLC. Justice Alito's majority opinion is striking in how narrowly it reads the record and the question presented.
For example, Justice Alito's opinion states:
In a footnote, the en banc majority also suggested thatthe FDA had violated a provision of the TCA's notice-and-comment requirements, see 21 U. S. C. §§387g(c)–(d), by imposing a "de facto ban on flavored e-cigarettes" through mass adjudicatory denials, 90 F. 4th, at 384, n. 5.
Suggested? Here is the footnote from Judge Oldham's en banc majority opinion:
FDA's categorical ban has other statutory problems. For example, the TCA states that FDA must follow notice-and-comment procedures before adopting a "tobacco product standard." See 21 U.S.C. § 387g(c)–(d). And Congress specifically called a ban on tobacco flavors a "tobacco product standard." See id. § 387g(a)(1)(A) (referring to tobacco flavors, "including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or coffee, that is a characterizing flavor of the tobacco product or tobacco smoke"); see also id. § 387g(a)(2) (cross-referencing noticeand- comment obligation to revise flavor standards). FDA unquestionably failed to follow § 387g's notice-and-comment obligations before imposing its de facto ban on flavored ecigarettes.
This is not a suggestion. It seems like a definitive statement of illegality. Is there really some new rule now that an issue not properly preserved unless it is raised in the body of an opinion? Or is this only a rule for circuits abutting the Gulf of America? It does seem different rules apply to the Fifth Circuit.
Justice Alito further argues that the notice-and-comment issue is only "touched on" in the Respondents' brief:
The question we agreed to decide is whether the FDA acted arbitrarily and capriciously in denying respondents' applications for premarket approval of their tobacco products. See Pet. for Cert. I. But before tackling that question, we briefly address as a preliminary matter an argument that is touched on in respondents' brief: namely, that either the APA or the TCA required the FDA to use notice-and-comment rulemaking to set out the requirements that must be met in a premarket tobacco product application.
There is an entire free-standing section in the Table of Contents, and two full pages of the brief (pp. 47-49), focusing on the notice-and-comment issue. What the heck does it take to squarely raise an issue?
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