Today a panel of the U.S. Court of Appeals for the Sixth Circuit granted broadband providers' request for a stay of the Federal Communications Commission's rule that would classify broadband internet providers as common carriers under the Communications Act, often referred to as "net neutrality." According to the panel, the broadband providers were likely to succeed on the merits–in part due to the major questions doctrine–and this justified staying the rule pending review of their petitions. The panel consisted of Chief Judge Sutton and Judges Clay and Davis.

From the court's unanimous per curiam order:

Broadband internet refers to the set of platforms that permit users to access the internet at speeds faster than dial-up services. . . . Over three-quarters of Americans have access to high-speed broadband service. . . . In addition to renting or constructing the physical network connecting computers, broadband internet providers offer other services that enable subscribers to access content from "edge providers"–namely websites, such as Google, Netflix, and Amazon, that host content on their own networks. . . . These services include DNS, short for Domain Name Services, a "phonebook" that matches web addresses (e.g., http://www.ca6.uscourts.gov) with their IP (internet protocol) addresses. And they include "caching" services that speed up data access by storing copies of edge provider content closer to the user's home system. . . .

The Communications Act of 1934 covers broadband providers, and it gives the Federal Communications Commission authority to promulgate rules and regulations under the Act. The extent of that regulatory authority turns on whether the providers count as common carriers under the Act. If a business counts as a common carrier, it must comply with Title II of the Act, which includes rate-review regulations and non-discrimination obligations. . . . For other businesses, the Commission may impose only the ancillary regulations authorized under Title I, which generally preserve the ability of companies to respond to market conditions. . . .

The development of the internet presented the Commission with a classification challenge. When Congress first enacted this law in 1934, it defined common carriers to include anyone involved in "wire communications." . . . Think telephone companies and the monopolies that went with them. But by the 1970s, telephone companies and others had begun competing to offer data processing services through telephone wires. . . . Common carrier rules designed for telephone-wire monopolies, the Commission realized, could inhibit the development of "data information services." . . . The Commission responded by distinguishing the "basic transmission service" that transferred data between two points from the "enhanced service" that allowed subscribers to interact with data stored elsewhere.

Responding to these developments, Congress enacted the Telecommunications Act of 1996. It established a new category of "telecommunications service," which offers "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received." . . . The Commission must treat telecommunications service providers as common carriers. . . . The 1996 Act also created a new category of "information service," which applies to a company that offers "a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications." The Commission may not treat information service providers as common carriers. . . .

After passage of the 1996 Act, the Commission for many years took the view that broadband internet access services were information services, not telecommunication services. That left them free of Title II's common carrier requirements. . . .

Reviewing a decision from the Ninth Circuit, the Supreme Court upheld this classification under Chevron. [See Brand X]. . . Specifically, the Supreme Court found that the classification of broadband internet access offered through cable modems as an information service was a permissible interpretation of the Communications Act. . . .

In 2010, the Commission continued to treat broadband internet services as something covered by Title I but opted to alter its rules based on a debate over the risk that broadband providers could favor some edge providers' content over others. . . . The Commission tried to use its Title I authority to impose "open internet" rules on broadband providers that banned them from blocking or unreasonably discriminating between lawful content. . . . A federal court invalidated this rule on the ground that the Commission could impose such requirements only under Title II.

The next chapter unfolded in 2015. That year, the Commission promulgated a rule that categorized broadband providers as common carriers and required net neutrality under Title II. . . .

In 2018, the Commission returned to its prior view. It issued a new rule that broadband providers fall under Title I and do not qualify as common carriers. . . . The D.C. Circuit again upheld the classification and again did so under Chevron. . . .

On May 22, 2024, the Commission switched positions again. Under its current rule, the Commission has classified broadband providers as common carriers under Title II. . . . The rule requires broadband providers to disclose "accurate information regarding the network management practices" and forbids them from engaging in blocking, throttling, paid prioritization, and "unreasonable interference" with users and edge providers. . . . The rule at this point forbears other Title II regulations, including rate regulation and tariffing. . . .

The petitioners are likely to succeed on the merits because the final rule implicates a major question, and the Commission has failed to satisfy the high bar for imposing such regulations. Although the petitioners have raised other arguments in support of their position that the FCC exceeded its authority in promulgating the rule at issue, such as whether broadband can be classified as a telecommunications service under the Communications Act and the stare decisis effect of the Brand X decision, we decline to reach those arguments at this preliminary stage.

An agency may issue regulations only to the extent that Congress permits it. . . . When Congress delegates its legislative authority to an agency, it presumably resolves "major questions" of policy itself while authorizing the agency to decide only those "interstitial matters" that arise in day-to-day practice. . . .When Congress upsets that presumption and delegates its power to “alter the fundamental details of a regulatory scheme” to an agency, it must speak clearly, without "hid[ing] elephants in mouseholes." The more an agency asks of a statute, in short, the more it must show in the statute to support its rule.

Net neutrality is likely a major question requiring clear congressional authorization. As the Commission's rule itself explains, broadband services "are absolutely essential to modern day life, facilitating employment, education, healthcare, commerce, community-building, communication, and free expression," to say nothing of broadband's importance to national security and public safety.

Congress and state legislatures have engaged in decades of debates over whether and how to require net neutrality. Because the rule decides a question of "vast economic and political significance," it is a major question. . . . The Communications Act likely does not plainly authorize the Commission to resolve this signal question. Nowhere does Congress clearly grant the Commission the discretion to classify broadband providers as common carriers. To the contrary, Congress specifically empowered the Commission to define certain categories of communications services–and never did so with respect to broadband providers specifically or the internet more generally. . . . Absent a clear mandate to treat broadband as a common carrier, we cannot assume
that Congress granted the Commission this sweeping power, and Petitioners have accordingly shown that they are likely to succeed on the merits. . . .

Chief Judge Sutton also wrote a separate concurrence, emphasizing that even without the major questions doctrine, the FCC would likely lose. As Sutton notes, "The best reading of the statute, and the one in place for all but three of the last twenty-eight years, shows that Congress likely did not view broadband providers as common carriers under Title II of the Telecommunications Act."

The post Sixth Circuit Puts Net Neutrality Rule on Ice appeared first on Reason.com.

The Supreme Court issued nine opinions in two days this week as the justices work to finish up October Term 2023. The justices have decided forty-seven cases thus far, with fourteen left to go (though these fourteen may be decided in as few as twelve opinions). Wednesday, June 26 will be the next opinion day. If the justices are ready to issue four or five opinions per day, they could meet the traditional-if-informal deadline of ending their work before July.

As I have noted before, the justices have shown a surprising degree of unanimity thus far this term. (See also this post by Adam Feldman at Empirical SCOTUS.) The Court has been unanimous in the judgment in 55 percent of the cases decided this term. Note, however, that in some of these cases the justices have diverged sharply in their reasoning, and not all of those cases featured a unanimous opinion for the Court. Today's opinion in Smith v. Arizona is a case in point, as are Trump v. Anderson and Vidal v. Elster. Given the cases left for the justices to decide, the overall proportion of unanimous decisions is likely to drop.

Among those cases that were not unanimous, two were 8-1, three were 7-2, thirteen were 6-3, and three were 5-4. Of note, only five of the Court's 6-3 decisions thus far this term divided the justices along traditional ideological lines. Some of those cases have also featured quite surprising line-ups, such as today's decision in Erlinger v. United States, in which Justice Gorsuch wrote for the Court, joined by the Chief Justice and Justices Thomas, Sotomayor, Kagan, and Barrett, while Justices Alito, Kavanaugh and Jackson dissented.

In terms of individual opinion authorship, here is where we stand.

• Sotomayor: 7
• Thomas: 7
• Kagan: 6
• Kavanaugh: 5
• Jackson: 5
• Alito: 4
• Barrett: 4
• CJ Roberts: 3
• Gorsuch: 3

There have also been three per curiam opinions, and some cases are likely to be merged into a single opinion (e.g. the two Chevron cases, Relentless and Loper-Bright will almost certainly be decided in a single opinion; we'll see if that happens with the two NetChoice cases).

Thus far this term, the "liberal" justices have written thirty-eight percent of the opinions for the Court, despite representing only one-third of the Court. This leads me to think we will few (if any) additional decisions authored by Justices Sotomayor, Kagan, or Jackson—though I think one more Jackson opinion is likely.

Now, for what you've all been waiting for, my purely speculative predictions for what we may see for the balance of the term.

• SEC v. Jarkesy—Gorsuch
• Purdue Pharma—Roberts
• Loper Bright/Relentless—Roberts
• Corner Post—Gorsuch
• Ohio v. EPA– Barrett (a change from prior prediction of Kavanaugh)
• NetChoice—Alito (though likely a splintered mess across the two cases)
• Murthy—Barrett (a change from prior prediction of Gorsuch)
• Snyder—Jackson
• Fischer—Gorsuch
• Grants Pass—Alito
• Moyle v. U.S.—Kavanaugh
• Trump v. U.S. – Roberts

As always, these predictions are worth no more than you paid for them, though I will note that I correctly called Rahimi, Texas v. New Mexico and Smith but not Erlinger.

The post Supreme Court OT2023 in the Final Stretch appeared first on Reason.com.

Today the U.S. Court of Appeals for the D.C. Circuit decided a case concerning the allegation of unfair labor practices at Curaleaf Arizona, a medical marijuana dispensary. In Absolute Healthcare v. NLRB, the court granted Curaleaf's petition challenging some NLRB findings that the company had committed unfair labor practices under the National Labor Relations Act.

The fact that Curaleaf is a medical marijuana dispensary makes this an interesting case. While Curaleaf's activities are legal under Arizona law, they are criminal under federal law, so Curaleaf is engaged in a criminal enterprise. This makes it interesting, to say the least, for a federal agency (the NLRB) to police Curaleaf's treatment of its employees. (For an exploration of other curiosities caused by the state-level legalization of the distribution and sale of marijuana, see my book, Marijuana Federalism: Uncle Sam and Mary Jane.)

Judge Millett wrote the panel opinion, granting Curaleaf's petition insofar as it challenged the NLRB's findings. (Some of the NLRB's findings were uncontested.) Senior Judge Ginsburg and Judge Walker joined the opinion. Judge Walker also wrote a separate opinion raising questions about whether the NLRA reaches allegedly unfair labor practices by employers engaged in businesses that remain illegal under federal law.

Congress empowered the National Labor Relations Board to protect the labor rights of certain employees of certain employers that affect interstate commerce. It is an undeniably broad grant of jurisdiction. But it may not be quite as broad as the NLRB assumes.

Consider the facts of this case. The NLRB ordered a criminal enterprise called Curaleaf Gilbert to pay a drug dealer to sell illegal drugs. That is a curious order from the branch of government tasked with faithfully executing federal law.

I can imagine three arguments in favor of the NLRB's jurisdiction over marijuana dispensaries like Curaleaf, but each has flaws.

First, many people believe marijuana should be legal. There are thoughtful people on both sides of that policy debate, and momentum may well be toward legalization. But for now, marijuana remains illegal at the federal level, notwithstanding the Department of Justice's nonenforcement.

Second, Arizona law allows Curaleaf to sell marijuana.6 But federal criminal prohibitions preempt conflicting state law. And those prohibitions cannot be displaced by an agency advisory memo.

Third, the NLRB usually retains jurisdiction even after an employer breaks a law. Indeed, Congress tasked the NLRB with holding employers accountable when they violate federal labor law. But that's when the enterprise is otherwise legitimate — not necessarily when its sole aim is to sell an illegal product or provide an illegal service.

That distinction may be more significant than the NLRB appreciates. After all, rings of bookies and counterfeiters affect interstate commerce, but the NLRB does not seem eager to adjudicate their labor disputes. Ditto for street gangs.

Why does that change when a corner boy calls himself a "budtender" and his crew incorporates under state law?

To me, at least, the answer is hazy.

The post Can a Criminal Enterprise Commit an Unfair Labor Practice? appeared first on Reason.com.

Today the Supreme Court issued three more opinions, bringing the total number of decisions to 29 so far this term (out of 61 argued cases). This is a slower pace than usual for the Court, despite the smaller docket, but on par with what we saw last term.

Here is the number of opinions issued by the end of May this year as compared with the total in each of the prior five terms:

• OT2023—29
• OT2022—29
• OT2021—33
• OT2020—39
• OT2019—36
• OT2018—44

The relative slowdown is noticeable. What's the cause? One possibility is that whatever processes the Court adopted in the wake of the Dobbs leak have slowed down the Court's work. Another possibility is that the remaining cases are sufficiently difficult or divisive that they are taking more time to complete. Whatever the cause, the Court will have to average a decision a day to finish its work by the end of June.

While the Court has been relatively slow to issue opinions, it is showing a surprising degree of unanimity. The justices have been unanimous in the judgment in 20 of the 29 cases decided thus far, including today's unanimous decision by Justice Sotomayor in NRA v. Vullo, siding with the National Rifle Association against New York financial regulators. Of the remaining nine cases, two were decided 7-2 and seven were decided 6-3. Of potential interest, only three of the 6-3 decisions issued thus far split the Court along traditional conservative-liberal lines. In two of those three cases the majority was written by Justice Alito (Thornell, Alexander). Justice Kavanaugh wrote the opinion in the third (Culley).

There are good reasons to think that the Court's will be less unanimous—and perhaps more conservative—than what we have seen so far this term, and not just because the Court tends to issue the most controversial and politically divisive decisions at the end of the term. So far this term, the liberal justices have authored a disproportionate share of the Court's opinions (thirteen of twenty-seven signed opinions), despite representing only one third of the Court. Based on what we have seen thus far, the Court's liberals are likely to have relatively few of the remaining majority opinions.

In terms of individual opinion authorship, here is where we stand.

• Sotomayor: 6
• Kagan: 4
• Alito: 3
• Kavanaugh: 3
• Barrett: 3
• Jackson: 3
• Thomas: 2
• Gorsuch: 2
• CJ Roberts: 1

There have also been two per curiam opinions, and some cases are likely to be merged into a single opinion (e.g. the two Chevron cases, Relentless and Loper-Bright will almost certainly be decided in a single opinion).

Given that the Court heard argument in 61 cases, each justice will only have six or seven decisions, so Justice Sotomayor may be done with writing majority opinions this term, and Kagan and Jackson may only a few each left. Of the thirty-ish opinions to come, I think we can expect over two-thirds of them to be written by one of the Court's conservatives. The Chief Justice in particular has been holding his powder dry, having only taken one decision for himself thus far. Do not be surprised if he writes for the Court in both the Trump immunity case and the Chevron cases.

The post Supreme Court OT2023 at the End of May appeared first on Reason.com.

In The Dispatch Matthew J. Franck explains why he will not be voting for Donald Trump or Joseph Biden in November, just as he refused to vote for either Trump or Hillary Clinton in 2016.

Eight years ago, I published an essay for Public Discourse about why I could not vote for either Hillary Clinton or Donald Trump. "Vote as if your ballot determines nothing whatsoever—except the shape of your own character," the piece concluded. "Vote as if the public consequences of your action weigh nothing next to the private consequences. The country will go whither it will go, when all the votes are counted. What should matter the most to you is whither you will go, on and after this November's election day."

There is nothing in what I said then that I would now retract. I rejected the idea that I, as one individual, must treat my choice as confined to the binary of Clinton versus Trump, as though the weight of the outcome were on me alone. It is frequently the case that we vote for one major-party presidential candidate principally because we are against the other one—usually because we find "our guy" a less than optimal choice but "the other guy" strongly repellent. But when we conclude that both of them are wholly unfit for office, our habitual partisan commitments, and our fond hope that the one representing "our side" will be normal, or guided by normal people, do not compel us to cast a vote in that direction. What we must consider, I argued, is not our role in the outcome of the election (which is negligible, and unknown to us when voting), but the effect on our conscience and character of joining our will to a bad cause. . . .

And here we are in 2024, with the same choice again. Only this time the overwhelming majority of voters have already voted at least once—successfully!—for these feckless men. That means the emotional investment of many voters in both Trump and Biden is very high, since each has a term as president to be defended—which ain't easy to do in either case. Trump's signature qualities were incompetence and recklessness, constrained to positive effect only by Congress, the courts, and many of his own appointees. Then he did his utmost, up until the evening of January 6, to steal the election from Joe Biden. A second term for Trump would be a four-year master class in indecency and mendacity, strongly inflected by an urge to authoritarianism that may sorely test our civic institutions. . . .

A vote for Biden would be contrary to an adult lifetime of conservatism. But I could write that sentence again almost verbatim, only substituting "Trump" for "Biden." For a conservative like me, who has refused twice to vote for Trump, it is not that hard to refuse a third time. (What's disappointing is the number of people I know who will vote for him a third time, despite everything.)

If you think you might be a "double hater" (in Ramesh Ponnuru's phrase), the whole thing is worth a read.

The post If Neither One Is Acceptable, Then Neither Is Acceptable appeared first on Reason.com.

CNN's Joan Biskupic offers a preview of some of what's contained in retired Judge David Tatel's forthcoming book, Vision: A Memoir of Blindness and Justice. Judge Tatel was appointed to the U.S. Court of Appeals for the D.C. Circuit by President Bill Clinton, and was a highly regarded member of that court for nearly three decades. Had Al Gore been elected President in 2000, some believe he would have nominated Judge Tatel to the Supreme Court if given the opportunity.

According to Biskupic, Tatel echoes the common (and incorrect) complaint that the Roberts Court has been less respectful of precedent than prior courts. She reports that Tatel charges that the Roberts Court "has 'kicked precedent to the curb' and become 'a tragedy' for civil rights and the rule of law." Assuming that Biskupic's report is accurate (as the book has not yet been released) it is a shame to see Judge Tatel repeat this claim about the Roberts Court and precedent because, as I have shown, the Roberts Court has actually been less prone to overturn precedent than prior courts.  It is one thing to criticize the substance of the Roberts Court's decisions. It is quite different to make demonstrably false claims about the nature of the Court's decisions.

Biskupic's story also confirms what many have long suspected about the Supreme Court's decision in NAMUDNO v. Holder, concerning the Voting Rights Act.

In his book, Tatel wrote that Ginsburg told him about the behind-the-scenes dealings in a 2009 case, known as Northwest Austin v. Holder, that was the forerunner to Shelby County. The 2009 case left the VRA's Section 5 intact, although its reasoning laid the groundwork for future obliteration. (Tatel had authored the lower court opinions in both Northwest Austin and Shelby County.)

When the Supreme Court ruled in 2009, Tatel said, "What I couldn't figure out was why the four liberal justices had joined the Chief's majority opinion. … (T)he unnecessary and irrelevant jabs at Section 5's constitutionality? Why had they gone along with that part of the Chief 's opinion? I suspected I knew the answer, and Justice Ginsburg herself later confirmed my suspicions."

"The justices had initially voted 5–4 to declare Section 5 unconstitutional, but they later worked out a compromise: The majority agreed to sidestep the big question about Section 5's constitutionality, and the would-be dissenters agreed … to sign on to the critique of Section 5," the judge wrote. "With that compromise, the liberal justices had bought Congress time to salvage the keystone of the Civil Rights Movement."

Congress never acted, and Tatel contends the 2009 compromise cost the liberals: "They sure paid a high price: an unrebutted opinion that criticized the VRA and, worse, endorsed a new 'equal sovereignty' doctrine with potentially profound implications," Tatel wrote of the principle that restricted Congress' ability to single out certain states, in this situation because of past discriminatory practices. "The Court's opinion in Northwest Austin thus planted the seeds for Section 5's destruction."

It is certainly true that the NAMUDNO decision "planted the seeds" for the Shelby County holding, in that it flagged the constitutional concerns that underlay the Shelby County decision. But according to this account, there would have been five votes to invalidate Section 5 either way. Thus what NAMUDNO actually accomplished (as some of us have pointed out before) was to give Congress the opportunity to revise Section 5 (and, specifically, to update the statute's obsolete coverage formula) so as to preserve its constitutionality. In other words, a majority of the Court was willing to stay its hand, and refrain from invalidating a federal statute, in the interest of deferring to Congress. That Congress did not avail itself of the opportunity, is not the fault of the Court.

The Biskupic story notes other tidbits from the book, such as how Justice Ginsburg resented the pressure to retire under a Democratic president, and suggests that RBG's death during the Trump Administration likely encouraged Judge Tatel to retire soon after Joseph Biden took office. This Adam Liptak interview with Tatel suggests much the same:

Judge Tatel said his retirement was linked to a lesson he drew from Justice Ruth Bader Ginsburg's decision to remain on the bench despite calls for her to step down in time to let President Barack Obama name her successor.

"We had dinner here at this table several times," he said. In the book, he described "her annoyance with commentators who were calling for her retirement."

Justice Ginsburg's contributions to the law will endure, he said. "But there's no denying," he wrote, "that her death in office ultimately contributed to Roe's downfall," with Justice Amy Coney Barrett — rushed onto the court by President Donald J. Trump and Senate Republicans — casting the decisive vote to eliminate the constitutional right to abortion.

Judge Tatel, now 82, wrote that he had stepped down because he "didn't want to take the chance that my seat might be filled by a president who'd campaigned on picking judges who would fulfill his campaign promises."

But there was more. "I was also tired," he wrote, "of having my work reviewed by a Supreme Court that seemed to hold in such low regard the principles to which I've dedicated my life."

I look forward to reading the book when it is released.

The post Judge David Tatel on the Roberts Court, the Voting Rights Act, and the Notorious RBG appeared first on Reason.com.

Just as Justice Kavanaugh spoke to the Fifth Circuit Judicial Conference today, Justice Thomas spoke to the Eleventh Circuit Judicial Conference. (Justices commonly speak at the judicial conference for the circuit for which they are circuit justice.) As with Justice Kavanaugh's remarks, press was in attendance, but the reporting on Justice Thomas's remarks focused more on the sorts of things political reporters care about (his comments about the culture of Washington, DC) than those things that actually provide information on the functioning and potential future direction of the Court. (In this way, the reporting confirms comments about court coverage Sarah Isgur made at today's lunch at the Eleventh Circuit conference.)

For those who care about law and the courts, the most interesting aspect of Justice Thomas's remarks may have been his comments about the "expedited docket"—or what many people call the "shadow docket." Like Justice Kavanaugh, Justice Thomas expressed concerns about the pressure the increase in expedited filings place on the Court. Emergency filings seeking relief from extraordinary relief (such as when district courts issue national injunctions) "short circuit our process," Justice Thomas remarked, adding "The way we're doing it now is not a thorough way" of doing it.

Justice Thomas further noted that such filings have increased because advocates are getting more aggressive and clever in pursuing such legal strategies, putting the court on a compressed schedule, and lower courts are issuing more national injunctions. The latter, Justice Thomas remarked, are something the Court will "have to address."

Justice Thomas also echoed Justice Kavanaugh's approval of the new oral argument process. The new format, which combines traditional open questioning with seriatim questioning by seniority, is "more thorough" and "polite," even if it means arguments last longer.

Among some of the other tidbits from his remarks that may be overlooked, Justice Thomas said that the Court's composition after Justice Breyer was confirmed—and which remained stable for over a decade—was his "favorite court." That Court, Justice Thomas said, was like a family. It "may have been a dysfunctional family" but it was a family, he said. Something like the leak of the Dobbs opinion draft would have been "unthinkable" during that time.

Justice Thomas also praised Justice Sandra Day O'Connor, saying she deserves far more credit than she gets, and repeated concerns that a Court in which eight of nine justices attended the same two elite law schools does not "reflect the country." He also explained why he tries to make his judicial opinions clear and understandable to non-lawyers.  It was also noted that in four years Justice Thomas will be the longest-serving justice in the Court's history.

The post Justice Thomas Raises Concerns About Increase in Expedited Appeals on "Shadow Docket" appeared first on Reason.com.

Today a unanimous panel of the U.S. Court of Appeals for the D.C. Circuit rejected Stephen Bannon's appeal of his conviction for contempt of Congress for failing to comply with a congressional subpoena. Judge Garcia wrote the opinion in United States v. Bannon, joined in full by Judges Pillard and Walker.

Here's how Judge Garcia summarizes the case:

In September 2021, the House Select Committee to Investigate the January 6th Attack on the United States Capitol issued a subpoena to appellant Stephen Bannon to testify and provide documents. Bannon did not comply—he knew what the subpoena required but did not appear or provide a single document. Bannon was later convicted of violating the contempt of Congress statute, 2 U.S.C. § 192, which criminalizes "willfully" failing to respond to a congressional subpoena. Bannon insists that "willfully" should be interpreted to require bad faith and argues that his noncompliance does not qualify because his lawyer advised him not to respond to the subpoena. This court, however, has squarely held that "willfully" in Section 192 means only that the defendant deliberately and intentionally refused to comply with a congressional subpoena, and that this exact "advice of counsel" defense is no defense at all. See Licavoli v. United States, 294 F.2d 207, 207 (D.C. Cir. 1961). As both this court and the Supreme Court have repeatedly explained, a contrary rule would contravene the text of the contempt statute and hamstring Congress's investigatory authority. Because we have no basis to depart from that binding precedent, and because none of Bannon's other challenges to his convictions have merit, we affirm.

The post D.C. Circuit Denies Stephen Bannon's Appeal of Contempt of Congress Conviction appeared first on Reason.com.

Justice Brett Kavanagh spoke at the Fifth Circuit Judicial Conference in Austin, Texas today. According to a Bloomberg report, he discussed the "pressure" created by emergency filings, including appeals of nationwide injunctions or other extraordinary relief entered by lower courts. From a Bloomberg report:

Speaking Friday in Austin, Texas, Kavanaugh lamented the strain the expedited timeline places on the justices and said it leads to decreased output in other areas.

"This puts pressure on us," he said during remarks at a US Circuit Court of Appeals for the Fifth Circuit conference. "We're appellate judges; we don't like making snap decisions or decisions without lots of briefs or lots of lower court opinions. It's a challenge for us. I think we're dealing with it as best as we can in an imperfect situation."

Kavanaugh, in response to a question from moderator Fifth Circuit Chief Judge Priscilla Richman, said that in order to decide emergency issues the court must "take a peek at the merits, and that's really hard." This becomes circular, he said, "because we're going to decide the merits a couple of years from now." . . .

Resolving issues on the emergency docket is keeping the court from writing more opinions in merits cases, Kavanaugh said. . . .

"It occupies a lot of time," he said.

It is interesting that he made these remarks at the Fifth Circuit judicial conference, as the Fifth Circuit has been responsible for more than its fair share of "shadow docket" filings.

Justice Kavanaugh also indicated that he thinks the Supreme Court should hear more cases—more like 75 per term instead of 60. As I have noted on this blog, Justice Kavanaugh often votes to grant certiorari in cases the Court ultimately denies.

The post Justice Kavanaugh Tells Fifth Circuit that "Shadow Docket" Places Pressure on Supreme Court appeared first on Reason.com.

On Wednesday, District Court Judge Michael Fitzgerald of the Central District of California dismissed Genesis B. v. Environmental Protection Agency, another "kids climate suit" against the federal government. In this case, as in the Juliana litigation, the plaintiffs sought to argue that the federal government is constitutionally obligated to take more aggressive action to control greenhouse gas emissions.

Among other things, the Genesis plaintiffs sought to argued that discounting future harms from climate change constitutes invidious age discrimination under the Equal Protection clause. As extravagant as such substantive arguments were, the plaintiffs here faced a larger threshold problem: Demonstrating federal court jurisdiction to hear the claims.

In the order, Judge Fitzgerald noted that there was no basis upon which to distinguish this case from the Juliana case, which the Ninth Circuit ordered dismissed on standing grounds. However, Judge Fitzgerald did grant the plaintiffs leave to amend, offering them another opportunity to reformulate their claims. No doubt the plaintiffs will file an amended complaint, but I am skeptical it will produce a different result.

The post District Court Dismisses Genesis B. Kids Climate Suit Against the EPA appeared first on Reason.com.

In Bradford v. U.S. Department of Labor, a divided panel of the U.S. Court of Appeals for the Tenth Circuit rejected a challenge to a Labor Department rule requiring federal contractors, including some permittees, to pay their workers a $15 per hour minimum wage. The majority concluded that this requirement was authorized by the Federal Property and Administrative Services Act (FPASA, sometimes referred to as the "Property Act" or the "Procurement Act"), which grants the President broad authority to impose requirements on federal contractors. The third judge, however, concluded that FPASA violates existing nondelegation doctrine precedent and is thus unconstitutional in a very interesting opinion. (The case is also interesting because the Supreme COurt has had very little to say about FPASA over the years.)

The majority opinion, by Judge Holmes and joined by Judge Ebel, summarizes the case:

Plaintiffs-Appellants Duke Bradford, Arkansas Valley Adventure (AVA), and the Colorado River Outfitters Association (CROA) appeal from the District of Colorado's order denying their motion to preliminarily enjoin a Department of Labor (DOL) rule requiring federal contractors to pay their employees a $15.00 minimum hourly wage. The DOL promulgated the rule pursuant to a directive in Executive Order (EO) 14,026, which President Biden issued on April 27, 2021. EO 14,026 imposed the minimum wage requirement on most federal contractors, and it rescinded an exemption for recreational services outfitters that operate pursuant to permits on federal lands, which President Trump had adopted in EO 13,838. President Biden issued EO 14,026 pursuant to his authority under the Federal Property and Administrative Services Act ("FPASA"), 40 U.S.C. §§ 101–1315, which authorizes the President to "prescribe policies and directives that the President considers necessary to carry out" FPASA and that are "consistent with" FPASA, 40 U.S.C. § 121(a). One purpose of FPASA is to "provide the Federal Government with an economical and efficient system for . . . [p]rocuring and supplying property and nonpersonal services." 40 U.S.C. § 101(1).

Appellants argue that the district court erred in concluding that FPASA authorizes the minimum wage rule as applied to recreational services permittees because the government does not procure any services from them or supply anything to them. They also argue that the DOL acted arbitrarily and capriciously in promulgating the minimum wage rule without exempting recreational service permittees.

Exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we affirm. We first conclude that Appellants have not shown a substantial likelihood of success on the merits that the DOL's rule was issued without statutory authority. Specifically, the district court did not err in concluding that FPASA likely authorizes the minimum wage rule because the DOL's rule permissibly regulates the supply of nonpersonal services and advances the statutory objectives of economy and efficiency. Furthermore, we hold that Appellants have not shown a substantial likelihood of success on the merits that the DOL's rule is arbitrary and capricious. In sum, we conclude that the district court did not err in denying Appellants' motion for a preliminary injunction.

Judge Allison Eid dissented, and not merely because the federal government sought to impose this minimum wage requirement on federal permittees who are not, in any traditional sense "federal contractors." Rather, she concluded that FPASA has a nondelegation problem. Her opinion begins:

Only Congress can wield legislative power. U.S. Const. art. I, § 1. Yet the law here, by lacking an intelligible principle, delegates just that to the President. The Federal Property and Administrative Services Act ("FPASA") grants the President nearly unfettered power to create any policy he considers necessary to carry out nonpersonal services under the guise of economy and efficiency. In granting this power, Congress did not (1) require the President to conduct any preliminary factfinding or to respond to a specified situation. Nor did Congress (2) provide the President a standard that sufficiently guides his broad discretion. Accordingly, I would hold that the FPASA runs afoul of the nondelegation doctrine. Because the majority holds otherwise, I respectfully dissent.

As Judge Eid explains, the problem is not merely that FPASA appears to offer no intelligible principle to guide the executive branch's use of the delegated power, but also that there is no required process to help channel the exercise of the power. This makdes FPASA invalid under Panama Refining and Schechter Poultry (neither of which has ever been overruled) and, according to Judge Eid, distinguishes FPASA from other statutes upheld against nondelegation challenge.  From her opinion:

Under the nondelegation doctrine, Congress must cabin its delegation of legislative authority to the President with an "intelligible principle." Gundy v. United States, 139 S. Ct. 2116, 2129 (2019) (plurality) (citation omitted). The Supreme Court has identified an intelligible principle as falling into either of the "two buckets" identified in Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), and A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935): "(1) whether the Congress has required any finding by the President in the exercise of the authority, and (2) whether the Congress has set up a standard for the President's action." Allstates Refractory Contractors, LLC v. Su, 79 F.4th 755, 773 (6th Cir. 2023) (Nalbandian, J., dissenting) (internal quotation marks and citation omitted). . .

Under the first "bucket," a law must contain a situational or fact-finding requirement. Panama Refin., 293 U.S. at 415 (considering "whether the Congress has required any finding by the President in the exercise of the authority to enact the prohibition"). In many cases, the Supreme Court has upheld laws if executive action can only come about as a response to certain situations. . . .

Under the second, a law must contain "a standard" limiting executive discretion. Panama Refin., 293 U.S. at 415 (considering "whether the Congress has set up a standard for the President's action"). Some laws delegate to the executive the ability to "fill up the details" in "general provisions." Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825). Even so, the Supreme Court has required that Congress provide a "sufficiently definite and precise" standard that can "enable Congress, the courts and the public to ascertain whether the [Executive official] . . . has conformed to those standards." Yakus v. United States, 321 U.S. 414, 426 (1944); . . .. Only then could a court be confident of what "general policy" a delegee "must pursue" and the "boundaries of [his] authority." Gundy, 139 S. Ct. at 2129 (plurality) . . . Because if not—if "an absence of standards" makes it "impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed"—a nondelegation violation occurs. Yakus, 321 U.S. at 426.

Such permissible, testable standards have taken the form of mandatory "factors" that the executive must conform to in acting. . . .

Lastly, the Supreme Court has noted that the more power a law delegates, the more the law must limit that delegation. Indeed, "the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred." Whitman, 531 U.S. at 475; . . .

The bottom line is that courts must examine statutes for an intelligible principle. That is because a law delegating power must have one to withstand Article I. As aptly summarized from "over two centuries worth of caselaw," looking for an intelligible principle in turn "requires a court to analyze a statute for two things: (1) a fact-finding or situation that provokes executive action or (2) standards that sufficiently guide executive discretion—keeping in mind that the amount of detail governing executive discretion must correspond to the breadth of delegated power." Allstates Refractory Contractors, LLC, 79 F.4th at 776 (Nalbandian, J., dissenting) (cleaned up).

This is an interesting take on a very broad delegation of authority, the aggressive exercise of which has prompted significant litigation (as with the vaccine mandate requirements for federal contractors I discussed here and here).

I am not sure I am convinced by Judge Eid's analysis. Unlike in most cases in which nondelegation concerns are raised, the government here is imposing rules governing those who choose to contract with or engage with the federal government. Thus exercises of FPASA do not raise the same concerns as do regulations governing purely private conduct. Insofar as the regulation here raises such concerns by imposing requirement on those who cannot really be said to be federal contractors, or reaching operations that are unrelated to federal contracts, it would seem that FPASA is readily subject to a narrowing construction that would eliminate the constitutional concern (and which is arguably more consistent with the power Congress actually delegated. It would do no harm to FPASA's text to recognize that it only confers authority on the President to impose conditions that meaningfully relate to the efficiency and efficacy of the performance of federal functions, and not the authority to use federal contracts (or, in this case, permits) as a lever with which to reach private conduct more broadly.  That said, Judge Eid's opinion makes an interesting case, and one that I suspect may catch the attention of one or more of the justices.

The post Is the Federal Property & Administrative Services Act Unconstitutional? appeared first on Reason.com.

Today a unanimous panel of the U.S. Court of Appeals for the Ninth Circuit granted the U.S. Department of Justice's petition for a writ of mandamus seeking dismissal of Juliana v. United States, the so-called "Kids Climate Case."

The brief order was short and direct. It noted that the Ninth Circuit had previously concluded that the plaintiffs lacked standing and ordered the case dismissed. Contrary to the plaintiffs' claims, no intervening decisions changed that fact, and that there was no basis for the district court to allow the plaintiffs to amend the complaint.

This decision should not have been a surprise. It should also be a relief to those who hope to see further climate litigation, as the Ninth Circuit panel saw no need to consider issues beyond the plaintiffs' Article III standing, and dismissal of the case obviates any need for the DOJ to seek Supreme Court review. Judge Aiken was wrong to revive this case, and now the Ninth Circuit has killed it for good.

Meanwhile, there are other (more well-grounded) climate cases proceeding in state courts under state law. More on those cases in future posts.

I've reproduced the Ninth Circuit's order after the jump.

Here is the text of the brief order:

In the underlying case, twenty-one plaintiffs (the Juliana plaintiffs) claim that—by failing to adequately respond to the threat of climate change—the government has violated a putative "right to a stable climate system that can sustain human life." Juliana v. United States, No. 6:15-CV-01517-AA, 2023 WL 9023339, at *1 (D. Or. Dec. 29, 2023). In a prior appeal, we held that the Juliana plaintiffs lack Article III standing to bring such a claim. Juliana v. United States, 947 F.3d 1159, 1175 (9th Cir. 2020). We remanded with instructions to dismiss on that basis. Id. The district court nevertheless allowed amendment, and the government again moved to dismiss. The district court denied that motion, and the government petitioned for mandamus seeking to enforce our earlier mandate. We have jurisdiction to consider the petition. See 28 U.S.C. § 1651. We grant it.

1. "[M]andamus is an extraordinary remedy . . . reserved for extraordinary situations." Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988). "[M]andamus is the appropriate remedy" when "sought on the ground that the district court failed to follow the appellate court's mandate." Vizcaino v. U.S. Dist. Ct. for W. Dist. of Wash., 173 F.3d 713, 719 (9th Cir. 1999); see also United States v. U.S. Dist. Ct. for S. Dist. of N.Y., 334 U.S. 258, 263 (1948). We review a district court's compliance with the mandate de novo. Pit River Tribe v. U.S. Forest Serv., 615 F.3d 1069, 1080 (9th Cir. 2010).

2. The petition accuses the district court of failing to execute our mandate on remand. District courts must "act on the mandate of an appellate court, without variance or examination, only execution." United States v. Garcia-Beltran, 443 F.3d 1126, 1130 (9th Cir. 2006). "[T]he only step" that a district court can take is "to obey the mandate." Rogers v. Consol. Rock Prods. Co., 114 F.2d 108, 111 (9th Cir. 1940). A district court must "implement both the letter and the spirit of the mandate, taking into account the [prior] opinion and the circumstances it embraces." Pit River Tribe, 615 F.3d at 1079 (emphasis added) (cleaned up).

3. In the prior appeal, we held that declaratory relief was "not substantially likely to mitigate the plaintiffs' asserted concrete injuries." Juliana, 947 F.3d at 1170. To the contrary, it would do nothing "absent further court action," which we held was unavailable. Id. We then clearly explained that Article III courts could not "step into the[] shoes" of the political branches to provide the relief the Juliana plaintiffs sought. Id. at 1175. Because neither the request for declaratory relief nor the request for injunctive relief was justiciable, we "remand[ed] th[e] case to the district court with instructions to dismiss for lack of Article III standing." Id. Our mandate was to dismiss.

4. The district court gave two reasons for allowing amendment. First, it concluded that amendment was not expressly precluded. Second, it held that intervening authority compelled a different result. We reject each.

The first reason fails because we "remand[ed] . . . with instructions to dismiss for lack of Article III standing." Id. Neither the mandate's letter nor its spirit left room for amendment. See Pit River Tribe, 615 F.3d at 1079. The second reason the district court identified was that, in its view, there was an intervening change in the law. District courts are not bound by a mandate when a subsequently decided case changes the law. In re Molasky, 843 F.3d 1179, 1184 n.5 (9th Cir. 2016). The case the court identified was Uzuegbunam v. Preczewski, which "ask[ed] whether an award of nominal damages by itself can redress a past injury." 141 S. Ct. 792, 796 (2021). Thus, Uzuegbunam was a damages case which says nothing about the redressability of declaratory judgments. Damages are a form of retrospective relief. Buckhannon Bd. & Care Home v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 608–09 (2001). Declaratory relief is prospective. The Juliana plaintiffs do not seek damages but seek only prospective relief.

Nothing in Uzuegbunam changed the law with respect to prospective relief. We held that the Juliana plaintiffs lack standing to bring their claims and told the district court to dismiss. Uzuegbunam did not change that. The district court is instructed to dismiss the case forthwith for lack of Article III standing, without leave to amend.

PETITION GRANTED.

For those interested, here are my prior posts on the Juliana litigation:

• "Is Kids Climate Case Coming to an End?" Nov. 26, 2018.
• "Ninth Circuit Dismisses Kids Climate Case for Lack of Standing (Updated)," Jan. 17, 2020.
• "Kids Climate Plaintiffs to Seek Rehearing En Banc," Jan. 20, 2020.
• "Ninth Circuit Denies Petition for En Banc Rehearing in Kids Climate Case," Feb. 10, 2021.
• "Will the Justice Department Settle a Case the Ninth Circuit Already Dismissed?" May 26, 2021.
• "States Seek to Intervene to Prevent Settlement in Kids Climate Case Ninth Circuit Already Ordered Dismissed," June 9, 2021.
• "Blue States File Brief Encouraging District Court to Consider Juliana Settlement," July 7, 2021.
• "Juliana Plaintiffs Opt Against Filing Cert Petition in Kids Climate Case," July 13, 2021.
• "District Court Judge Revives Kids Climate Case," June 1, 2023.
• "The Next Kids Climate Case: Genesis B. v. EPA," Dec. 15, 2023.
• "Federal Court Again Refuses to Dismiss Juliana Climate Case," Jan. 2, 2024.
• "Justice Department to Seek Mandamus to End Juliana Litigation (Again)," Jan. 29, 2024.
• "DOJ Files Petition for Writ of Mandamus to End Juliana Climate Litigation," Feb. 6, 2024.

The post Ninth Circuit Puts An End to the Kids Climate Case appeared first on Reason.com.

Yesterday the Supreme Court granted certiorari in Trump v. United States, in which Donald Trump has been trying to argue that he is immune from prosecution for acts taken while he was President (as Eugene noted here). It has ordered expedited briefing (although not quite as expedited as special counsel Jack Smith requested), and we can hope for a decision before the end of June.

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.

I was listening to the oral argument in Corner Post, Inc. v. Board of Governors of the Federal Reserve System today, and I was struck by the following exchange (from the transcript):

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.

In several recent posts I have noted that Justice Kavanaugh appears to want the Supreme Court to hear a significant number of cases that his colleagues do not. We know this because the Supreme Court's order lists often note that he would have granted certiorari in a case that was denied.

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.

The Supreme Court is scheduled to hear oral argument in FDA v. Alliance for Hippocratic Medicine and Danco Laboratories v. Alliance for Hippocratic Medicine, the combined cases concerning the Food & Drug Administration's regulation of mifepristone, on March 26.

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 Next Abortion Battlegrounds," June 22, 2022;
• "Assessing the Legal Claims in Alliance for Hippocratic Medicine v. FDA," March 8, 2023;
• "AHM v. FDA: A Contrary View and a Rejoinder," March 28, 2023;
• "Blue-State AGs Have A Mifepristone Lawsuit of Their Own," March 29, 2023;
• "Two (Wrong) Mifepristone Court Rulings in One Day," April 8, 2023;
• "The Good and Bad of the Fifth Circuit's Abortion Pill Ruling," April 13, 2023.
• "BREAKING: Supreme Court to Consider Fifth Circuit's Abortion Pill Decision," Dec. 13, 2023.

The post Supreme Court Denies Red State Effort to Intervene in Mifepristone Case appeared first on Reason.com.