The Volokh Conspiracy

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Predicting a Fragmented Vote in United States v. Texas

I don't think there will be a five vote bloc on standing or the remedy.


I wrote two posts on the latest incarnation of United States v. Texas. Based on my read of the oral argument, I think the ultimate vote may be very fragmented. The Court's six conservatives are not on the same page. And the Court's three progressives will–as they always do when it counts–hang together. The bottom line is the lower-court ruling would be vacated, without a single five-member majority opinion. Here is my crude prediction, that should not be taken very seriously.

First, I think Justice Barrett has already signaled that Article III does not permit the remedy Texas sought–a vacatur. And if the court cannot issue an order that remedies the plaintiff's purported injury, then the court lacks jurisdiction. Thus, Barrett could toss the case on redressability grounds, without deciding whether Texas suffers an injury in fact. The Court followed this path in California v. Texas, which Barrett presaged in oral arguments. Justice Gorsuch also seemed to lean in this direction. These two judges, who were never part of the D.C. Circuit cartel, will have no problem casting doubt on decades of "drive-by" rulings.

Second, I think Justice Kagan will find that Texas's theory of injury is far too broad because it would allow a state to challenge almost any federal policy based on a $1 cost. Justices Sotomayor and Jackson also suggested that Texas's injury, if any, was self-inflicted. Kagan will likely distinguish Massachusetts v. EPA, but find Texas's theory, which has been used countless times since 2014, does not work. If the votes line up this way, there would be five votes to dismiss the case on jurisdictional grounds, and the lower-court ruling would be vacated. But there would be no change in governing law. The D.C. Circuit cartel can continue issue five vacaturs before breakfast. And the Fifth Circuit can continue to rely on the Texas theory of standing. In other words, a fragmented decision will keep the status quo on both questions.

Third, Chief Justice Roberts and Justice Kavanaugh were very much opposed to this "radical" rewriting of administrative laws. But I also don't expect Roberts to actually defend the D.C. Circuit precedent. As Roberts acknowledged, the D.C. Circuit never considered the sorts of arguments raised by Sam Bray and John Harrison. Roberts and Kavanaugh were also very critical of Texas's merits argument. Given the limited appropriations, "shall" cannot mean "shall." And Kavanaugh was very concerned about the Article II issues lurking in the background. My prediction: Roberts and Kavanaugh bypass the jurisdictional argument altogether, and vacate the injunction on the merits. In theory at least, the Court can leapfrog a difficult jurisdictional question if the merits question is straightforward. (This argument was considered in California v. Texas.) Given five justices already found there was no jurisdiction, Roberts would have more of a free-hand to issue this merits-first ruling. And Kavanaugh will tag along, perhaps writing a concurrence that name-drops all of his former colleagues on the D.C. Circuit.

Fourth, I think Alito and Thomas will find that Texas has standing. And I think Alito and Thomas will rule for Texas on the merits. But the remedy may split them. During the Trump years, Thomas was critical of the nationwide injunction. I do not know if he harbors similar doubts about vacatur under the APA. Justice Alito did not seem troubled by the vacatur remedy. If I'm right (and I seldom am), only Justice Alito would affirm across the board. Thomas may find that the vacatur issue was not fairly presented, so it is not before the Court.  Or Thomas might even join Barrett and Gorsuch on the remedial question, even though he briefly served on the D.C. Circuit cartel. I'm not certain. It's possible that zero of the nine Justices will defend the D.C. Circuit's vacatur precedents, yet those precedents remain firmly in place.

The bottom line vote could be cast as 5-4, 7-2, 8-1, or maybe even 9-0. There are so many options.