Constitutional Law Prof Blog

District Court Rejects Trump Bid to Remove Hush Money Case to Federal Court

Judge Alvin K. Hellerstein (S.D.N.Y.) earlier this week rejected Donald Trump's motion to remove his New York state hush-money case to federal court. Trump filed a notice of appeal last night.

This latest episode arose when Trump filed his second motion to remove last week, arguing that the New York courts were biased against him and that he's immune under Trump v. United States.

The court rejected both arguments. As to bias, the court said that it lacked jurisdiction under the Rooker-Feldman doctrine, which generally bars lower federal courts from reviewing state court decisions. As to immunity, the court wrote, "Nothing in the Supreme Court's opinion affects my previous conclusion that the hush money payments were private, unofficial acts, outside the bounds of executive authority."

Trump appealed to the Second Circuit. But unless something weird happens, he'll lose, and his state case will proceed.

As to his state case, sentencing is scheduled for September 18. Trump moved to push it back, however, and also moved to dismiss the case in light of Trump v. United States. Judge Merchan, the state trial judge, said that he'd rule on Trump's immunity motion by September 16. If he denies the motion, as expected, and keeps the sentencing date in place, Trump will be sentenced on September 18. He can then appeal through the state courts and, ultimately, the U.S. Supreme Court, claiming immunity.

Court Expands Presidential Immunity, Remands January 6 Case Against Trump

The Supreme Court ruled today that a former president enjoys certain immunity--and as a practical matter probably near total immunity--from federal criminal prosecution for actions taken while in office. The sweeping ruling remands the immunity issue back to the district court in former President Trump's criminal case based his efforts to overturn the results of the 2020 presidential election. That means that the prosecution and former President Trump will have to re-litigate the immunity issue at the district court, and re-appeal the ruling to the appellate court and Supreme Court, before the criminal case can move forward.

Under the Court's ruling today, the immunity question could take many months or even years to re-work through the courts. This means that former President Trump won't go to trial in the January 6 criminal case before the 2024 election, if ever.

I say "if ever" for three reasons. First, if former President Trump is elected, he could order the Justice Department to drop the case. Next, former President Trump will undoubtedly find other ways to challenge the prosecution, yet further dragging things out. (Justice Thomas recommends one in today's ruling; see below.) Finally, it's not at all clear that today's ruling leaves any presidential action, as a practical matter, outside the scope of the immunity that the Court created. In other words, the Court's ruling may--again, as a practical matter--provide a president with complete immunity, or all-but-complete immunity, from federal criminal prosecution for actions taken while in office.

The Court held that a former president's immunity from federal criminal prosecution falls into three buckets. First, a former president is absolutely immunity for actions taken within the presidents "core constitutional powers"--those inherent and exclusive Article II powers that belong to the president alone. According to the Court, these include "for instance, commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and appointing public ministers and consuls, the Justices of this Court, and Officers of the United States."

Next, a former president is presumptively immune for actions taken within "the outer perimeter of his official responsibility." According to the Court, "[s]uch an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution." Because this immunity is presumptive, the prosecution can overcome it, but with a very high bar: "At a minimum, the President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would post no 'dangers of intrusion on the authority and functions of the Executive Branch.'"

Finally, a former president enjoys no immunity for unofficial acts.

All this may sound like a former president could be prosecuted for acts outside the outer perimeter of their official responsibilities and for unofficial acts. But there are a couple kickers. For one, "[i]n dividing official from unofficial conduct, courts may not inquire into the President's motives." This means that a president's malign motives couldn't convert an official act into an unofficial one. In other words, a president would enjoy immunity after leaving office for official acts, even if the president conducted those official acts for purely non-official reasons (like partisan political retribution, purely personal financial gain, and the like). More cynically, a crafty president could simply cloak their illegal acts in behavior that looked like official action and, voila, gain immunity. Next, courts may not "deem an action unofficial merely because it allegedly violates a generally applicable law." Finally, courts may not use "evidence about" a former president's "immune conduct" in the former president's criminal case, "even when an indictment alleges only unofficial conduct . . . ." This could seriously hamstring a prosecutor when, as would often be the case, they must use a former president's official conduct to prove a criminal case involving purely unofficial conduct.

Taken together, it's not at all clear that, as a practical matter, this doesn't amount to near total immunity for a former president. At the very least, it sets out a clear-as-day roadmap for any president to immunize themselves from future criminal prosecution for nearly any criminal behavior that they may wish to take while in office.

The Court held that former President Trump's use of the Justice Department, including his threat to remove the acting attorney general, fell within the first bucket, inherent and exclusive Article II authority, and that he was "therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials."

Next, it remanded several allegations in the indictment back to the district court for a determination whether they were "official" acts. These include former President Trump's attempts to persuade the vice president to alter the election results; his efforts to enlist the help of state officials, private parties, and the general public in overturning the results; and his communications leading to and on January 6.

Justice Thomas concurred, and wrote to argue an entirely separate issue--that the office of special counsel itself may be unconstitutional, and that the special counsel may therefore lack authority to bring these charges in the first place. That issue wasn't argued or briefed in the case, but it is the subject of a pending motion in the district court in former President Trump's federal criminal case in Florida (the one involving illegal retention of government documents).

Justice Barrett concurred, arguing that some of the allegations in the indictment cover clearly unofficial conduct, for example, former President Trump's efforts to persuade state lawmakers to investigate alleged election fraud. She also declined to join the portion of the Court's opinion saying that courts can't use protected conduct as evidence in a criminal prosecution, even for unofficial conduct.

Justice Sotomayor wrote a lengthy and scathing dissent, joined by Justices Kagan and Jackson. She argued that the Court's ruling effectively places the president above the law, counter to the text, history, and tradition, and provided vivid and chilling examples:

When he uses his official powers in any way, under the majority's reasoning, he now will be insulated from criminal prosecution. Orders the Navy's Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

This sounds dramatic. But it's very hard to see how the majority's reasoning doesn't lead to these results.

Justice Jackson also wrote a dissent, but just for herself. She argued that the Court's ruling effected a sea change in the criminal paradigm, effectively giving a single person, the president, a get-out-of-criminal-charges-free card, and in that way undermining our system of rule of law.

SCOTUS Says Docs, Orgs Lack Standing to Challenge Mifepristone

The Supreme Court ruled today in FDA v. Alliance for Hippocratic Medicine that doctors and organizations lack standing to challenge FDA's relaxation of regulations on the use of Mifeprex, the brand-name for mifepristone--the second of a two-drug regime to end pregnancies. The ruling means that mifepristone can stay on the market, along with the FDA's actions that make it more easily accessible.

FDA originally approved Mifeprex in 2000, with certain restrictions on its use. FDA relaxed those restrictions in 2016 and again in 2021--allowing the drug's use up to 10 weeks of pregnancy, allowing healthcare providers other than doctors to prescribe it, requiring just one in-person visit, and, in 2021, dropping the in-person visit requirement entirely.

A group of pro-life doctors and organizations sued FDA, arguing that the Agency improperly approved the drug and relaxed the standards for its use. As their basis for standing, the doctors claimed that FDA's actions would cause patients to suffer harms from using the drug, and that the doctors would have to treat them. The organizations said that they had to divert resources to provide their members with safety information about the drug.

The Court ruled today that those plaintiffs lacked standing. The Court said that the doctors lacked standing on the groud that FDA's actions caused conscience injuries to them. The Court noted that doctors could avoid "conscience injuries" by declining "to perform or assist" an abortion under federal conscience laws. It wrote that the doctors lacked standing on the ground that the doctors would have to divert their time and efforts with other patients in order to serve patients who suffered harm from mifepristone, because the causal link between FDA's actions and this "harm" was too attenuated. The court said that the organizations lacked standing in their own right on the ground that they had to divert resources, because "an organization that has not suffered a concrete injury caused by a defendant's action cannot spend its way into standing simply by expending money to gather information and advocate against the defendant's action."

The ruling was unanimous. Justice Thomas wrote a concurrence, arguing that the Court should "explain just how the Constitution permits associational standing" at all, but in a different, appropriate case.

SCOTUS Weighs Trump Immunity

The Supreme Court will take up former President Trump's claim of absolute immunity from criminal prosecution for his acts on and around January 6. Here's my oral argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

ISSUE

Is former President Trump immune from criminal prosecution for his allegedly official acts while in office?

FACTS

A federal grand jury indicted former President Donald J. Trump for conspiring to “overturn the legitimate results of the 2020 presidential election.” The indictment charged Trump with “using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified.”

The indictment alleges Trump sought to overturn the election using five means: (1) deceiving state officials to subvert the legitimate election results in their states; (2) using deceit to organize fraudulent slates of presidential electors in seven states and causing those electors to send false certifications to Congress; (3) leveraging the Department of Justice to deceitfully urge state election officials to replace their legitimate slate of presidential electors with electors who would vote for Trump; (4) attempting to enlist the Vice President to fraudulently alter the results of the election during Congress’s certification proceeding on January 6, 2021, and directing Trump supporters to the Capitol to obstruct those proceedings; and (5) exploiting the ensuing violence and chaos at the Capitol on January 6.

In particular, the indictment charges Trump with conspiring to defraud the United States, in violation of 18 U.S.C. § 371; corruptly obstructing the certification of the presidential election results on January 6, 2021, in violation of 18 U.S.C. § 1512(c)(2); and conspiring to violate the constitutional right to vote of one or more persons, in violation of 18 U.S.C. § 241.

Trump moved to dismiss the indictment on the ground that he enjoys absolute immunity from criminal prosecution for acts taken within the “outer perimeter” of his official responsibilities as President. The district court denied Trump’s motion, and the D.C. Circuit affirmed. This appeal followed.

CASE ANALYSIS

In sorting out the novel question in this case, we can look to a handful of authorities for guidance. For example, the Court in Nixon v. Fitzgerald ruled that a President enjoys absolute immunity from civil damages for acts within the “outer perimeter” of their duties of office. 457 U.S. 731 (1982). The Court said that absolute immunity would ensure that the threat of civil suits would not “distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.”

At the same time, the Department of Justice has long held the position that a sitting President enjoys absolute immunity from criminal prosecution while in office. In a 2000 memo, the Department wrote that “indicting and prosecuting a sitting President would ‘prevent the executive from accomplishing its constitutional functions,’ and that this impact cannot ‘be justified by an overriding need’ to promote countervailing and legitimate government objectives.”

Most recently, in 2020, in Trump v. Vance, 140 S. Ct. 2412, the Court rejected then-President Trump’s claim that a sitting President was absolutely immune from state criminal processes short of indictment and prosecution (in that case, a state prosecutor’s subpoena to a third party for the President’s personal papers). The Court wrote that the President failed to demonstrate any especial need for immunity (or even a heightened-need standard for the prosecutor) to fulfill his Article II duties, and that “the public interest in fair and effective law enforcement cuts in favor of comprehensive access to evidence.”

But despite these authorities, the Court has never addressed whether a former President enjoys absolute immunity from criminal liability for acts within the “outer perimeter” of their duties of office. That’s what this case is all about.

Trump argues first that “courts cannot sit in judgment directly over the President’s official acts, whether before or after he leaves office.” He says this has been the consistent understanding since 1803 in Marbury v. Madison, 5 U.S. 137. Trump quotes language in Marbury, saying that in matters where the President exercises discretion, the President’s “acts are only politically examinable.” As a result, Trump says the President’s official acts “can never be examinable by the courts.” He also points to the President’s absolute immunity from civil liability for official acts in Fitzgerald and claims that even more so “the courts cannot sit in criminal judgment over him and imprison him based on official acts.”

Trump contends that the Impeachment Judgment Clause reinforces this conclusion. He claims that the Clause, by acknowledging that an impeached President “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to law,” allows the President to be prosecuted only after impeachment (including impeachment in the House and conviction in the Senate). He claims that the Clause thus “reflects the Founders’ understanding” and operates as “a formidable structural check against politically motivated prosecutions by requiring a majority of the House and a supermajority of the Senate to authorize such dramatic action.”

Trump also contends that “[t]he long history of not prosecuting Presidents for official acts, despite ample motive and opportunity to do so over the years,” is also consistent with his conclusion. Moreover, he claims that a lack of immunity and the resulting threat of prosecution after leaving office would deter currently serving Presidents from making the kind of “bold and unhesitating” decisions that Presidents must make. “That bleak scenario would result in a weak and hollow President, and would thus be ruinous for the American political system as a whole.”

Trump argues next that, under separation-of-powers principles, the President is not subject to “generally applicable criminal laws” unless Congress specifically said so. Trump claims that this flows from the President’s unique place in our constitutional structure and Court precedent that holds that other, non-criminal law does not apply to the President unless the law contains a clear statement applying it to the President. Trump asserts that none of the criminal laws in his indictment specifically apply to the President; therefore, they don’t apply to his actions as President; and therefore, he cannot be prosecuted for violating them.

Finally, Trump argues that the Court should dismiss the indictment. But if it doesn’t, he says that “the Court should be guided by four considerations.” First, Trump claims that “the scope of immunity should extend to the ‘outer perimeter of a President’s official acts,’ and its protection should be absolute, not qualified.” Next, he asserts that the Court should remand the case for any “fact-based application” “if the Court determines that immunity exists but requires fact-based application.” Third, “if the Court adopts a form of qualified immunity, which it should not do,” the Court should apply that immunity to the “extraordinarily, and almost completely, broad” range of the President’s official duties in a way that would immunize a former President for all but the most obvious violations of law. Finally, “the Court should reject the D.C. Circuit’s alternative approach of denying a President criminal immunity when his conduct is allegedly motivated by the desire to remain in power unlawfully.” Trump says that this approach “risks creating the appearance of a gerrymandered ruling tailored to deprive only . . . Trump of immunity, while leaving all other Presidents untouched.”

The government counters that the President is subject to federal criminal law, just like everybody else, unless a President’s power under Article II “precludes the application” of that law. The government says that “[n]o presidential power at issue in this case entitles the President to claim immunity from the general federal criminal prohibitions supporting the charges.” Moreover, the government contends that “[t]he President’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them.”

The government argues that “[h]istory likewise refutes [Trump’s] claim.” It says that “[t]he Framers never endorsed criminal immunity for a former President, and all Presidents from the Founding to the modern era have known that after leaving office they faced potential criminal liability for official acts.” According to the government, that’s why President Richard M. Nixon accepted President Gerald R. Ford’s pardon: Nixon’s “acceptance . . . implied his and President Ford’s recognition that a former President was subject to prosecution.”

The government argues that a President’s immunity from civil liability in Fitzgerald doesn’t support Trump’s claim of immunity from criminal liability. It claims that Trump’s case “involves the far weightier interest in vindicating federal criminal law in a prosecution brought by the Executive Branch itself.” And it contends that unlike Fitzgerald’s concern “that a multiplicity of private civil actions would chill a President’s decisions, the same concerns are not present in the criminal context.” According to the government, that’s because the criminal system contains multiple “institutional checks to ensure evenhanded and impartial enforcement of the law.” (The government points to the fact that the government itself must bring a criminal charge, “a grand jury must find that an indictment is justified,” the government must meet a high burden of proof, and “due process protections . . . guard against politically motivated prosecutions.”)

The government asserts that Trump’s claim that federal criminal law does not apply against the President unless it specifically says so is “radical” and “unfounded.” According to the government, Trump’s position “would free the President from virtually all criminal law—even crimes such as bribery, murder, treason, and sedition.” Moreover, the government says that other “safeguards” in the criminal system adequately “protect legitimate presidential interests” and other constitutional values.

The government also asserts that Trump is wrong to claim that the President can only be prosecuted after impeachment. The government says that the plain text of the Impeachment Judgment Clause, its structure, and its history all “contradict [Trump’s] assertion that [it] makes Senate conviction a condition precedent to prosecution.” And it contends that the Clause “expressly recognizes that former Presidents are subject to federal criminal prosecution”—a point Trump acknowledges—and therefore undermines Trump’s sweeping claim of absolute immunity. The government says that impeachment, as a political process, is very different than criminal prosecution, which is “based on facts and law, and is rigorously adjudicated in court.” “Adopting [Trump’s] position would thwart the ordinary application of criminal law simply because Congress, in administering the political process of impeachment, did not see fit to impeach or convict.”

The government also contends that Trump is wrong to argue that courts can’t review a President’s discretionary acts. The government says that the cases Trump relies upon relate to a sitting President, and therefore have “no application to criminal prosecution of a former President.” Moreover, it claims that the absence of prosecutions of former Presidents “does not reflect the understanding that Presidents are immune from criminal liability; it instead underscores the unprecedented nature of [Trump’s] alleged conduct.” The government asserts that Trump’s claims about common-law immunities “fare[] no better.” “The established rule for judges and prosecutors—that they may claim civil immunity for official acts but lack any corresponding criminal immunity—applies equally to former Presidents. By contrast, neither constitutional text nor historical practice supports applying anything akin to legislative immunity to Presidents.”

Finally, the government argues that even if the Court extends some form of immunity to former Presidents, that immunity “does not preclude trial on this indictment.” The government says that Trump’s alleged conduct—an attempt “to subvert an election”—“does not justify any form immunity.” Moreover, it claims that Trump’s private conduct (that is, alleged conduct that is not part of the President’s official acts) “is sufficient to support the charges,” even without considering his official acts. The government argues that the Court should therefore remand the case for trial, “with the district court to make evidentiary and instructional rulings in accordance with this Court’s decision.” Trump “could seek appellate review of those rulings, if necessary, following final judgment.”

SIGNIFICANCE

This case raises one of the most important issues in our constitutional system: presidential accountability. The case raises the issue on two levels. First, and most obviously, the case asks whether the President can be held to account in our criminal system based on allegedly official acts while in office. On this level, the case tests a core commitment in a system of rule of law, the principle that no person is above the law. To get a small taste of why that’s important, consider just this one scenario: Trump’s counsel in the D.C. Circuit conceded that under Trump’s theory Trump would enjoy immunity even if, as President, he ordered SEAL Team 6 to assassinate a political rival, unless Congress impeached him first. (And by the way, it’s easy to see how a President could evade this check. For example, if Congress can’t impeach a former President—a position held by many in Trump’s second impeachment—a President could simply commit a crime, and immediately resign.)

Second, the case asks whether the President can be held to account through our electoral system. After all, if a President were successful in thwarting the results of an election, and if he enjoyed immunity from criminal prosecution for his efforts (as Trump claims here), he could remain in office indefinitely, despite his electoral loss.

For these reasons, this case is one of the most important cases on the structure of our government that the Court has seen in decades, and maybe ever. Here’s how 15 leading historians of the Founding era put it in their amicus brief:

The allegations against former President Trump go to the heart of the Founders’ concerns about executive power. The Framers specifically contemplated that a President might conspire with others to remain in power after the end of his term. This fear compelled them to carefully construct checks on presidential power. . . .

The crime alleged here, a failure to respect the election of a new President, is the ultimate crime against the people, who are the basis of government.

And just to be clear: Trump’s legal claim of absolute immunity is novel and unprecedented; no other former President has made this claim in court. Trump says that’s because his prosecution is unprecedented, reflecting the fact that it’s unfounded. The government says that’s because no other President committed such patently illegal acts. In any event, the unprecedented nature of Trump’s claim may be why the lower courts so roundly rejected them.

But the Court didn’t follow suit, at least not as directly as it might have, and at least not yet. The government initially sought Court review back in December 2023, “cert. before judgment,” before the D.C. Circuit ruled on the case. The Court declined to take it up. Then, after the D.C. Circuit ruled, the government opposed Trump’s application to stay that ruling. Again, the Court ruled against the government, ordering the lower courts to delay the trial until it ruled. The Court granted certiorari, specified the question presented, and set the case for oral argument on the last day for arguments this Term.

Even if the Court rejects Trump’s claim of absolute immunity (which seems likely), all this created significant delays in Trump’s trial. And more delays may come. The Court may not rule until late June (or even later), and its decision may require the district court to rule on additional issues before proceeding. For example, the Court’s ruling could require the district court to determine whether particular alleged behavior falls within the “outer perimeter” of the President’s duties. Or it could require the district court to apply some other form of immunity, like qualified immunity. This could take time. Moreover, when Trump moved to dismiss the indictment based on absolute immunity, he also moved to dismiss it on other grounds, also raising important and novel issues that may take time to work through the courts. All this may push any trial back after the 2024 presidential election and, if Trump were elected, the transition. And that could allow a second-term President Trump to quash the case.

That’s likely Trump’s real strategy with this case, anyway.

SCOTUS to Hear Challenge to Mifepristone on Tuesday

The Supreme Court will hear oral arguments on Tuesday in the case challenging FDA's approval of mifepristone, part of a two-drug regimen approved to terminate a pregnancy. Here's my argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

Abortion Access

Did the U.S. Food and Drug Administration lawfully remove requirements for a drug used to voluntarily terminate a pregnancy?

Case at a Glance

In 2000, the U.S. Food and Drug Administration (FDA) approved mifepristone as part of a two-drug regimen to end an early pregnancy. As part of the approval, FDA imposed certain requirements on the drug’s use. In 2016, FDA relaxed those requirements by extending the approved use from seven weeks to ten weeks, reducing the number of required in-person clinical visits, and allowing certified non-physician health-care providers to prescribe the drug. Then, in 2021, FDA eliminated the in-person dispensing requirement.

Food and Drug Administration v. Alliance for Hippocratic Medicine

Docket No. 23-235

From: The Fifth Circuit

Argument Date: March 26, 2024

 

INTRODUCTION

Individual doctors, including emergency-room doctors, and doctor organizations sued FDA, arguing that FDA made the changes without reasoned decisionmaking, in violation of the Administrative Procedure Act (APA). The United States Court of Appeals for the Fifth Circuit stayed the effective dates of the changes and in the alternative imposed a preliminary injunction.

ISSUES

1. Do the plaintiffs have standing?
2. Did FDA base its 2016 and 2021 actions on reasoned decisionmaking?
3. If not, did the Fifth Circuit grant proper preliminary relief?

FACTS

Background on Mifepristone

In 2000, after a four-year review of the initial application, FDA approved mifepristone as part of a two-drug regime to end an early pregnancy. (FDA initially approved mifepristone under the brand-name Mifeprex, sponsored by Danco Laboratories, L.L.C., an appellant (along with FDA) in this case.) FDA’s approval called for women using the drug to make three in-person clinical visits: first, to take mifepristone; next, two days later, to take misoprostol, the second drug; and finally, to follow up to confirm the termination of the pregnancy. FDA determined that mifepristone, used this way, was safe and effective for women through seven weeks of a pregnancy. FDA re-approved essentially these same requirements in 2011. (FDA re-approved the requirements as a “risk evaluation and mitigation strategy” (REMS). REMS, which Congress added to the Food, Drug, and Cosmetic Act in 2007, authorizes FDA to issue a “strategy” for drug use whenever FDA determines that such a “strategy” is necessary to ensure that the drug’s benefits outweighed its risks.)

In 2016, FDA approved three changes to the REMS for mifepristone. First, FDA expanded the drug’s approved use from seven weeks to ten weeks. Next, it reduced the number of required in-person clinical visits from three to one. Third, it allowed non-physician health-care providers who were licensed to prescribe drugs (like nurse practitioners) to prescribe mifepristone. FDA based these changes on numerous studies of mifepristone’s safety and efficacy.

At the same time, FDA also modified a prior provision that required prescribers to report certain adverse events, like hospitalizations and blood transfusions, to the drug’s sponsor. FDA determined, based on “15 years of reporting,” that the requirement to report non-fatal events was no longer warranted, and that this information could be “collected in the periodic safety update reports and annual reports” by the drug’s sponsor—“as with all other approved drugs.”

In support of the 2016 changes, FDA concluded that serious adverse events resulting from mifepristone are “exceedingly rare,” and that mifepristone’s use under the revised conditions would be “safe.” In particular, FDA referenced published studies of tens of thousands of women showing that hospitalization after mifepristone use occurs in between 0 percent and 0.7 percent of cases, and that bleeding requiring transfusion occurs in between 0 percent and 0.5 percent of cases.

In 2019, FDA approved an application for a generic version of mifepristone. The same REMS cover both versions.

In April 2021, FDA announced that it would decline to enforce the in-person dispensing requirement in light of the COVID-19 pandemic. FDA said that the decision “was the result of a thorough scientific review by [agency] experts” who evaluated “clinical outcomes data and adverse event reports.” (Earlier in the pandemic, in July 2020, a federal district court enjoined FDA’s enforcement of the in-person dispensing requirement. American College of Obstetricians & Gynecologists v. FDA, 472 F. Supp. 3d 183 (D. Md. 2020). The injunction remained in place until January 2021, when the Court stayed it. FDA v. American College of Obstetricians & Gynecologists, 141 S. Ct. 578 (2021).) In December 2021, FDA determined that the in-person dispensing requirement was no longer necessary, and in 2023, after this case was filed, FDA removed the in-person dispensing requirement from the REMS. (FDA retained the requirement that only authorized health-care providers can prescribe mifepristone, and only after a patient signed a form that provides information on the drug and instructions on follow-up care, if necessary.)

Challenges to Mifepristone

In 2002, the American Association of Pro-Life Obstetricians & Gynecologists (AAPLOG) and the Christian Medical & Dental Associations (CMDA) filed a citizen petition with FDA asking the agency to withdraw its 2000 approval of mifepristone. FDA denied the petition in March 2016 (on the same day that it approved the changes to mifepristone’s requirements). FDA said that “well-controlled clinical trials supported the safety” of mifepristone in 2000, and that “over 15 years of postmarketing data and many comparative clinical trials in the United States and elsewhere continue to support [its] safety.”

Then, in 2019, AAPLOG and the American College of Pediatricians (ACPeds) filed a citizen petition challenging FDA’s 2016 changes to mifepristone’s requirements, and asking the agency to retain the in-person dispensing requirement. FDA denied the petition in December 2021. Based on the scientific literature, FDA concluded that “the in-person dispensing requirement is no longer necessary to assure the safe use of mifepristone.”

Most recently, in November 2022, the Alliance for Hippocratic Medicine, AAPLOG, CMDA, ACPeds, and four individual doctors sued FDA, challenging its 2000 approval of Mifeprex (the second drug, used with mifepristone), the 2016 changes, the 2019 approval of generic mifepristone, the 2021 exercise of enforcement discretion, and the 2016 and 2021 denials of the citizen petitions.

The district court stayed the challenged actions. The government and Danco appealed and sought a stay of the district court ruling pending appeal. The Fifth Circuit stayed the district court ruling as to FDA’s 2000 approval of mifepristone, but otherwise left the ruling in place. The Court then stayed the district court stay in its entirety pending appeal.

After additional briefing and argument, the Fifth Circuit vacated FDA’s 2016 and 2021 actions. This appeal followed.

CASE ANALYSIS

This case raises three issues. Let’s take them one at a time. (FDA and Danco each submitted a brief. Because their arguments are similar, we refer together as FDA’s arguments.)

Standing

The government argues that the plaintiffs lack standing, because they do not prescribe mifepristone, and because FDA’s actions that allow other health-care providers to prescribe mifepristone “do not require [the plaintiffs] to do or refrain from doing anything.” The government says that the Fifth Circuit was wrong to hold that some of the plaintiffs’ members are injured because they might have to treat women who suffer serious side effects from mifepristone. The government claims that this “statistical” injury has been flatly rejected by the Court.

Moreover, the government contends that the plaintiffs can’t point to a single member who has suffered a sufficient injury for standing, and that the plaintiffs’ proffered injuries are too speculative. (For example, the government asserts that the plaintiffs “cannot identify even a single case where any of their members has been forced to” “complet[e] an abortion for a woman who presents in an emergency room with an ongoing pregnancy.”) In any event, the government claims that the plaintiffs’ standing “theories are independently foreclosed because they rest on the untenable premise that emergency-room doctors suffer an Article III injury whenever they provide emergency care.”

The government argues that the plaintiffs also lack standing because they cannot show that FDA’s challenged actions caused their asserted injuries. “If those injuries occur at all, they will be linked to FDA’s actions only by a long and attenuated causal chain involving independent actions by other providers, patients, and third parties.”

Finally, the government argues that the plaintiffs lack organizational standing. According to the government, “[t]his Court has never accepted [the plaintiffs’] suggestion that an organization can manufacture standing to challenge an agency action merely by expending resources on that challenge.”

The plaintiffs counter that “they are facing multiple concrete injuries” resulting from FDA’s actions. For one, they say that they suffer “conscience harms” related “to taking the life of an unborn child” and their “complicity” in doing so. For another, they contend that “the emergency situations expressly and repeatedly contemplated by FDA cause [them] to divert time and resources away from their labor and delivery practices and increase their malpractice risks.”

The plaintiffs argue next that they can trace their harms to FDA’s actions. They contend that FDA’s 2021 action (removing the initial in-person-visit requirement) “strips away the best opportunity to diagnose dangerous ectopic pregnancies and accurately assess gestational age.” They claim that FDA’s 2016 changes (increasing the gestational-age limit and removing the follow-up-visit requirement) “heighten the risk” that they will have to “participate in elective abortions.”

FDA’s Actions

The government argues first that FDA’s 2016 changes “were supported by an exhaustive review of a record including dozens of scientific studies and decades of safe use of mifepristone by millions of women in the United States and around the world.” The government says that the Fifth Circuit was wrong to vacate FDA’s 2016 actions on the ground that FDA “failed to cite a study examining the combined effect of all the relevant changes.” It claims that there is no basis for such a requirement, and that “in any event, FDA did cite a study that combined the relevant changes.”

The government argues next that it validly changed the reporting requirement for adverse events in 2016. The government claims that this change brings mifepristone “more in line with the reporting mechanism that applies to nearly all other FDA-approved drugs.” It says that it validly dropped the previous reporting requirement “[b]ased on more than 15 years of experience” with the drug, demonstrating that “the drug’s safety profile was well-established and serious adverse events were exceedingly rare.”

Finally, the government argues that its elimination of the in-person dispensing requirement in 2021 was valid. It says that the “actual experience during the pandemic,” among other things, led it to conclude “that the requirement was no longer necessary to ensure mifepristone’s safe use.” Moreover, the government contends that the Fifth Circuit wrongly concluded that FDA used flawed studies. The government asserts that the APA requires FDA “to act reasonably based on the information available,” not to use “perfect data.” The government claims that FDA met this standard here.

The plaintiffs counter that “FDA failed to engage in the reasoned decision-making the APA requires.” They say that FDA’s decision to remove the initial in-person-visit requirement was based on one data set that even “FDA concedes . . . cannot be used to estimate the incidence of adverse events or indicate the safety profile of a drug” and another set of studies that FDA “admitted . . . were ‘not adequate’ for that purpose.” Moreover, they contend that FDA lacked important information about the drug’s safety, because it earlier abandoned the requirement that mifepristone prescribers report nonfatal adverse events.

The plaintiffs argue that FDA’s 2016 actions (removing the follow-up-visit requirement, increasing the gestational age, allowing non-doctors to prescribe the drug, and ending the requirement for prescribers to report all serious adverse events) “failed to consider the cumulative impact of removing all these interrelated safeguards at once” and “failed to explain why it could extrapolate safety conclusions for its omnibus changes from studies that did not evaluate the changes as a whole.” They also claim that FDA relied on studies of safeguards (like ultrasound screenings) that “were not included in the approved regimen.”

Preliminary Relief

The government argues that even if the plaintiffs had standing and even if they might succeed on the merits, “the Fifth Circuit erred in affirming sweeping preliminary relief.” The government says that the district court initially erred in “postponing” FDA’s actions, even though those actions had been “in effect for years.” And it claims that there is no good reason to issue a nationwide halt to FDA’s actions (which “threatens profound harms to the government, the healthcare system, patients, and the public”) when the “asserted injuries are at best attenuated” and when the “claims assert only that FDA failed adequately to explain its actions.”

The plaintiffs counter that the Fifth Circuit’s preliminary injunction is appropriately tailored. They say that all the standards for a preliminary injunction point in their favor. They emphasize that their harms are “irreparable,” and that the injunction would only reimplement the “safety standards that FDA required for 16 years and under which millions of women took mifepristone.”

SIGNIFICANCE

Coming just shy of two years after Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), overturning Roe v. Wade, 410 U.S. 113 (1973), this case represents a next critical front in the ongoing debates over reproductive freedom. And the stakes are enormous. By 2021, medication abortions accounted for over half of all abortions in the United States. And FDA’s 2016 and 2021 actions made medication abortions even more accessible. Under these actions, women in states that still allow abortion can more easily gain access to medication-abortion drugs. Vacating or enjoining those changes would sharply limit access to abortion nationwide.

But whatever the Court says, this case won’t end debates over medication abortions. For one, FDA’s approval of mifepristone could preempt state laws restricting abortion. If so, women in states that restrict or prohibit abortion, including medication abortion, could still gain access to mifepristone. Cases are now pending in the federal courts but may not work their way up to the Court for some time.

For another, states that are bent on restricting or eliminating abortion continue to look for ways to prevent their residents from receiving abortion drugs through the mail. Many have pointed to the Comstock Act, which prohibits the delivery of contraception and items considered “obscene” through the U.S. Mail. But early this year the Department of Justice opined that the Comstock Act does not prohibit the U.S. Postal Service from delivering mifepristone and misoprostol, because those drugs could be used for purposes other than abortion, and therefore neither the sender nor the U.S. Postal Service can know how the pills will be used. The Department’s opinion drew sharp criticism, suggesting that debates over the Comstock Act have only just begun.

For a third, there is a safe and commonly used (at least internationally) alternative to the mifepristone-misoprostol regimen: a misoprostol-only regimen. While this is not currently approved by FDA, some U.S. telehealth organizations have been reportedly providing a misoprostol-only regimen for several years. We might expect to see more debates and even litigation around misoprostol, regardless of what the Court has to say about mifepristone.

Outside of the ongoing debates over reproductive rights, this case has independent significance for what it might say about FDA’s authority (and maybe about agencies’ authorities more generally). The Fifth Circuit’s ruling marks a truly exceptional break with the deference that federal courts traditionally give to FDA. As the government says, to its knowledge, “this case marks the first time any court has restricted access to an FDA-approved drug by second-guessing FDA’s expert judgment about the conditions required to assure that drug’s safe use.” That’s especially notable, given mifepristone’s exceptional safety record in the United States and abroad.

If the Court affirms the Fifth Circuit, the ruling could have important implications far beyond mifepristone (in particular, with regard to the evidence and methodologies that the Court might allow or disallow FDA to use in approving drugs and establishing their safety standards). And given this Court’s record in recent years of second-guessing agency judgments (and with more cases testing agency decisionmaking now before the Court), we might not be surprised if the Court similarly second-guesses FDA’s judgments here. But even if so, remember that FDA could have the final word by re-approving mifepristone under whatever standards the Court might set.

Sixth Circuit Says Certain Religious Objectors Have Standing to Challenge Vaccine Mandate

The Sixth Circuit ruled that two religious objectors to a Cleveland, Ohio, hospital's COVID-19 vaccine mandate had standing to sue the hospital for a violation of Title VII, while dozens of other objectors didn't. The difference turned on whether each objector actually resigned, and, if so, whether each objector's resignation was a "constructive discharge," which, in turn, depended on when each resigned.

The case, Savel v. MetroHealth System, tested the hospital's COVID-19 vaccine mandate for employees. The hospital accepted applications for religious exemptions, then categorically denied all religious exemptions, telling objectors that they had 45 days to get a vaccine or be fired. But nine days short of the vaccine deadline, the hospital reversed course and granted all requests for religious exemptions.

Employees sued, arguing that the mandate violated Title VII. The district court dismissed the case for lack of standing or, in the alternative, failure to state a claim.

The Sixth Circuit agreed that most of the plaintiffs lacked standing. The court first noted that most of the plaintiffs were still employed by the hospital. It said that those plaintiffs' alleged injuries (severe mental anguish and the looming threat of losing their job if the hospital were to reinstate the mandate) were "too conclusory" and "contingent on future events that may never come to pass." Of the remaining plaintiffs, the court noted that most of them resigned after submitting exemption requests, but before the hospital denied them, and therefore failed to "support a theory of constructive discharge."

But the court said that two plaintiffs had standing. These two only resigned after the hospital denied their requests for exemptions, but before the 45-day deadline for getting a vaccine. The court said that these resignations amounted to constructive discharges, because "the forty-five day window was not an uncertain process that may or may not end in discharge." To the contrary, the "facts plausibly allege that [the hospital] communicated to Plaintiffs 1 and 2 that they would be terminated after forty-five days if they refused to be vaccinated on religious grounds."

At the same time, though, the court noted that these plaintiffs "may lack standing at a latter phase of this litigation based on additional evidence about the certainty of termination."

The ruling sends the case back to the district court for further proceedings on these two plaintiffs' claims.

D.C. District Says Voters Lack Standing to Challenge Noncitizen Voting

Judge Amy Berman Jackson (D.D.C.) ruled today that a group of voters in D.C. lacked standing to challenge a D.C. law that allows noncitizens to vote in local, but not national, elections. The court said that plaintiffs lacked a particularized injury:

In sum, plaintiffs have not alleged that they have personally been subjected to any sort of disadvantage as individual voters by virtue of the fact that noncitizens are permitted to vote, too. They may object as a matter of policy to the fact that immigrants get to vote at all, but their votes will not receive less weight or be treated differently than noncitizens' votes; they are not losing representation in any legislative body; nor have citizens as a group been discriminatorily gerrymandered, "packed," or "cracked" to divide, concentrate, or devalue their votes. At bottom, they are simply raising a generalized grievance which is insufficient to confer standing.

Federal law prohibits noncitizens from voting in federal elections. According to Ballotpedia, as of March 2024, seven states prohibit noncitizens from voting in state and local elections (Alabama, Arizona, Colorado, Florida, Louisiana, North Dakota, and Ohio), and D.C. and municipalities in three states (California, Maryland, and Vermont) allow noncitizens to vote.

Court Says No-Fly-List Case is Not Moot

The Supreme Court ruled today that a plaintiff's challenge to his inclusion on the N0-Fly List was not moot even after the government removed him from the List, because the government didn't adequately establish that it wouldn't re-list him in the future. The ruling sends the case back to the lower court for further proceedings . . . and for the government to try again to show that it won't relist him.

The case, FBI v. Fikre, arose when Yonas Fikre, a U.S. citizen on business in Sudan, learned from FBI agents that he was on the No-Fly List and couldn't return to the U.S. The agents offered to take him off the List if he agreed to serve as an informant and report on members of his religious community. Fikre refused.

Fikre later traveled to the UAE, where authorities arrested, imprisoned, and tortured him, and questioned him about his Portland, Oregon, mosque. Authorities held Fikre for 106 days, then flew him to Sweden, where he remained until February 2015, when the Swedish government returned him to Portland.

While in Sweden, Fikre sued, arguing that the government violated due process, among other things. He sought a declaratory judgment and an injunction prohibiting the government from keeping him on the No-Fly List.

In May 2016, the government notified Fikre that it removed him from the List, but didn't provide any further explanation. The district court granted the government's motion to dismiss the case as moot, but the Ninth Circuit reversed. On remand, the government entered a declaration stating that Fikre "will not be placed on the No Fly List in the future based on the currently available information." The district court again dismissed the case, but the Ninth Circuit again reversed.

The Court agreed with the Ninth Circuit that the case isn't moot. The Court emphasized that under the voluntary-cessation exception to mootness, the defendant bears the "formidable burden" * * * "'to establish' that it cannot reasonably be expected to resume its challenged conduct--whether the suit happens to be new or long lingering, and whether the challenged conduct might recur immediately or later at some more propitious moment." The Court noted that "a party's repudiation of its past conduct may sometimes help demonstrate that conduct is unlikely to recur." But "[w]hat matter is not whether a defendant repudiates its past actions, but what repudiation can prove about its future conduct. It is on that consideration alone--the potential for a defendant's future conduct--that we rest our judgment." The Court held that the government declaration simply didn't meet these standards.

That's not to say that the government can't meet the standards on remand, and the ruling gives the government another shot, on mootness or any other aspect of Article III justiciability (or on some national-security ground, and ultimately the merits, of course).

Justice Alito concurred, joined by Justice Kavanaugh, "to clarify my understanding that our decision does not suggest that the Government must disclose classified information to Mr. Fikre, his attorney, or a court to show that this case is moot."

 

Second Circuit Says Organization Must Identify Harmed Members to Challenge Corporate Diversity Program

The Second Circuit ruled this week that a membership organization lacked standing to challenge a corporate diversity program when it failed to disclose the names of its allegedly harmed members, even to the court. The ruling ends the case, although the organization could refile and name names.

The case arose when Do No Harm, a membership organization, sued Pfizer over the corporation's Breakthrough Fellowship Program. The Program is designed "to advance students and early career colleagues of Black/African American, Latino/Hispanic, and Native American descent." Do No Harm argued that the Program excludes white and Asian-American applicants in violation of Title VI, among other things, and sought a preliminary injunction.

But there was a problem: Do No Harm didn't provide the names of its members who were allegedly harmed, even to the court in camera.

The district court held that Do No Harm therefore lacked standing and dismissed the case. The Second Circuit affirmed.

The court ruled that an organization, in order to establish standing on behalf of its members, must name the allegedly harmed members, at least to the court (even if not in not in the public filings). "[A] requirement that a plaintiff association seeking to establish standing on the basis of injuries to its members identify at least one injured member by name best aligns with Supreme Court precedent, including [Summers v. Earth Island Institute], is most consistent with the principles underlying organizational standing, and is bolstered by the conclusions of numerous other courts."

The court went on to affirm the district court's dismissal of the case (and not merely deny the plaintiff's motion for a preliminary injunction). Although it recognized that the issue has two sides (deny the motion, or dismiss the case entirely), the court definitely came down on the dismissal side: "as a general matter, when a court determines it lacks subject matter jurisdiction, it cannot consider the merits of the preliminary injunction motion and should dismiss the action in its entirety."

Fifth Circuit Temporarily Stays Order on Abbott's Rio Grande Barrier

The Fifth Circuit temporarily stayed an earlier order by a district court that required Texas Governor Greg Abbott to remove the Rio Grande border barrier. The brief appellate court order didn't say anything about the merits. The ruling means that the border barrier stays in place pending further litigation.

Colorado Voters Sue To Keep Trump Off Ballot

Six Colorado voters filed suit in state court to keep Trump off the ballot, arguing that he's disqualified under Section 3 of the Fourteenth Amendment. The lengthy and detailed complaint preemptively addresses the several arguments against Section 3's application to Trump and state courts' authority to enforce Section 3. It asks the court to enjoin the state secretary of state from taking any action that would give Trump access to the ballot.

Supreme Court Strikes Biden Student-Debt Relief

The Supreme Court ruled on Friday that the Biden Administration's student-debt relief plan exceeded authority under the HEROES Act. That is: the Court said that the plan's illegal.

The ruling means that the plan won't go into effect. But President Biden quickly announced that his Administration would move to implement a similar plan under the Higher Education Act (which gives the Administration greater authority than the HEROES Act). But that'll take some time to implement, because it requires rulemaking processes. President Biden announced short-term relief in the interim.

Even these moves won't end the story, however. Given the political opposition to student-debt relief, we'll certainly see a spate of new lawsuits challenging any action the Administration takes.

The case, Biden v. Nebraska, tested the Secretary of Education's 2022 plan to cancel student-loan debt up to $10,000 for any borrower with income less than $125,000 (or $250,000 for couples) and up to $20,000 for any Pell Grant borrowers. All told, the plan would cancel about $430 billion in federal student loan debt, with about 90 percent of the benefits going to borrowers with incomes under $75,000.

As authority for the plan, the Secretary pointed to the HEROES Act. Under that Act, the Secretary "may waive or modify any statutory or regulatory provision applicable to the student financial assistance programs . . . as the Secretary deems necessary in connection with a war or other military operation or national emergency" and "as may be necessary to ensure" that student debtors "are not placed in a worse position financially in relation to that financial assistance because of their status as affected individuals."

States and individuals sued, arguing that the Secretary exceeded his authority under the HEROES Act. In particular, the plaintiffs said that the plan wasn't a "waiver" or "modification," but instead was a top-to-bottom overhaul of the law, in violation of the separation of powers. (The president can enforce the law, not make it.)

The Court agreed. The Court parsed the phrase "waive or modify" and concluded that the plan far exceeded anything that the phrase could support. In sum,

The Secretary's comprehensive debt cancellation plan cannot fairly be called a waiver--it not only nullifies existing provisions, but augments and expands them dramatically. It cannot be mere modification, because it constitutes "effectively the introduction of a whole new regime." And it cannot be some combination of the two, because when the Secretary seeks to add to existing law, the fact that he has "waived" certain provisions does not give him a free pass to avoid the limits inherent in the power to "modify." However broad the meaning of "waive or modify," that language cannot authorize the kind of exhaustive rewriting of the statute that has taken place here.

The Court went on to apply the major questions doctrine from West Virginia v. EPA. The Court said that the plan was unprecedented, and had "staggering" "economic and political significance," and that Congress had not clearly authorized it. Importantly, the Court rejected the government's argument that the major questions doctrine applied only to government regulatory programs, not government benefit programs.

Justice Barrett concurred, arguing that the major questions doctrine squares with textualism ("The doctrine serves as an interpretive tool reflecting 'common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.'") and the Court's power ("the major questions doctrine is neither new nor a strong-form canon," from footnote 2), and arguing that the major questions doctrine "reinforces" the Court's holding "but is not necessary to it."

Justice Kagan dissented, joined by Justices Sotomayor and Jackson. She argued that "the Court today exceeds its proper, limited role in our Nation's governance," first by accepting the case at all (because the states lack standing) and next by rejecting the plan, which "fits comfortably within" the HEROES Act authority.

 

High Court Says States Lack Standing to Challenge Biden Immigration Enforcement Priorities

The Supreme Court ruled that Texas and Louisiana lacked standing to challenge the Biden Administration's immigration-enforcement priorities. The 8-1 ruling--on justiciability, not the merits--means that the priorities stay in place.

The ruling is a win for the Biden Administration and its enforcement priorities. The ruling also deals a blow to states trying to sue to challenge non-enforcement decisions by the Executive Branch. This could have wide-ranging implications in the states-sue-the-federal-government-over-everything times that we live in.

The case, United States v. Texas, arose when DHS Secretary Mayorkas promulgated priorities for enforcement of federal immigration law. Secretary Mayorkas issued the priorities in order to deal with a chronic lack of resources to fully enforce immigration law against an estimated 11 million unauthorized noncitizens. The priorities focused enforcement efforts on suspected terrorists and dangerous criminals who recently entered the country without authorization. The lack of full congressional funding was nothing new. Congress has failed to fully fund DHS enforcement efforts for 27 years, and five presidential administrations have had to make similar enforcement decisions, one way or another.

Still, Texas and Louisiana didn't like the Biden Administration priorities, so they sued. They argued that Secretary Mayorkas violated federal immigration law, which says that DHS "shall" arrest and detain certain unauthorized noncitizens. They said that the priorities would cost them money (the basis for their standing), and that they violated the government's obligations under immigration law (on the merits). The district court ruled in their favor; the Fifth Circuit and the Court both declined to stay that judgment; and the Court then granted cert. before judgment.

The Court ruled that the states lacked standing based on precedent or longstanding historical practice. In particular, the Court said that the states couldn't point to anything supporting third party standing to sue the government over a prosecution decision when the plaintiff was neither prosecuted nor threatened with prosecution. In fact, just the opposite: the Court pointed to Linda R.S. v. Richard D. (1973) as precedent cutting the other way.

The Court went on to riff on judicial review of decisions not to prosecute--and why that's a bad idea. At the same time, the Court acknowledged that it has reviewed exercises of prosecutorial discretion in certain areas.

Justice Gorsuch concurred, joined by Justices Thomas and Barrett, focusing on the lack of redressability. Justice Barrett concurred, joined by Justice Gorsuch, and argued that the Court got it wrong not to focus on redressability. Justice Alito dissented.

Law Firm Tells Senate Judiciary They Can't Impose Supreme Court Ethics Code

Gibson Dunn, the firm that represents Harlan Crow, wrote to Senate Judiciary Chair Dick Durbin that the Committee lacked authority to investigate Justice Thomas's relationship with Crow and to impose an ethics code on the Supreme Court.

That's some chutzpah.

The firm wrote that Crow wouldn't comply with the Committee's effort to investigate Crow's relationship with Justice Thomas. According to the firm, the Committee's investigation lacks a legitimate legislative purpose, because ultimately Congress cannot impose an ethics code on the Supreme Court--and therefore can't investigate in order to impose such a code. Again according to the firm, a congressional ethics code for the Court would impermissibly encroach on the singular constitutional role and standing of the Supreme Court.

The letter engages with the Necessary and Proper Clause--in particular, the argument that the Necessary and Proper Clause authorizes Congress to impose an ethics code on the Court. But it seems to engage only with the first part of the Clause. According to the letter, the Necessary and Proper Clause doesn't provide Congress with authority to impose an ethics code, because Congress doesn't have the underlying power to impose a code.

But even if that's right--and it's not at all clear that it is--it ignores the second part of the Clause: "The Congress shall have the power . . . [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (Emphasis added.)

The move seems to put the ball back in the Senate Judiciary Committee's court, to subpoena Crow and then move to enforce the subpoena in the courts. That comes with some risk, of course: the Court (which is both a highly interested player and umpire in this separation-of-powers dispute) seems likely to side with Crow, based on its signals.

Can Minority Members on a Congressional Committee Sue to Get Agency Material?

The Supreme Court this week agreed to hear a case testing whether minority members on a congressional committee can sue to enforce their statutory right to obtain material from an agency.

But this isn't just any minority, and it's not just any agency material. The dispute arises out of congressional Democrats' efforts to obtain material from the General Services Administration about the Trump organization's lease with the Old Post Office for the Trump International Hotel.

In February 2017, the then-House Oversight Committee ranking member and seven other Democrats (but not a majority of the Committee, because Dems were in the minority) asked GSA for material related to GSA's 2013 lease of the Old Post Office building to Trump Old Post Office LLC. The members cited 5 U.S.C. Sec. 2954, which provides

An Executive agency, on request of the [Committee on Oversight and Reform] of the House of Representatives, or of any seven members thereof, or on request of the Committee on [Homeland Security and] Governmental Affairs of the Senate, or any five members thereof, shall submit any information requested of it relating to any matter within the jurisdiction of the committee.

GSA declined; the members sued; and GSA argued that the members lacked standing.

The case, Maloney v. Murphy, now pits two theories of standing against each other. On the one hand, the members say that they have standing based on an informational harm--that they have a right to information (under Section 2954), and that the GSA denied them that information. This is a little like you or me seeking to enforce a FOIA request in court: a statute grants us a right to information, an agency declines to provide it, and we can sue. But the theory depends on members suffering an informational harm that is personal and individual to them (even if as members of Congress), and not a harm on behalf of Congress (or a committee of Congress) as a body. They point to Powell v. McCormack, among other cases, where the Court has held that a member of Congress has standing based on an injury that is particular to them as a legislator. The D.C. Circuit adopted this theory when it ruled that the members have standing.

On the other hand, GSA (then and now) says that individual members lack standing based on a harm to Congress, the House, or their committee. GSA points to Raines v. Byrd, where the Court held that individual members of Congress can't sue to challenge the Line Item Veto Act, because the harm went to Congress, not to the individual members.

The difference will likely turn on how the Court interprets Section 2954. If the Court reads the statute to authorize individual members to obtain agency material as individual legislators, to serve their individual legislative functions, then the Court will likely say that the members have standing. But if the Court reads the statute to protect the right of the committees to obtain information, it'll likely say they don't.

CJ Roberts Allows Title 42 Policy to Stay in Place . . . For Now

Chief Justice Roberts issued an order today halting a district court ruling that struck the Trump Administration's Title 42 policy. The administrative stay means that the Title 42 policy will remain in place, notwithstanding the district court's ruling, until the Chief Justice or the full Supreme Court has a chance to consider the issue more thoroughly.

That could be soon. Chief Justice Roberts ordered that the government respond tomorrow, Tuesday.

The Title 42 policy orders U.S. immigration officials to turn away covered noncitizens from any country who try to enter through the Mexican or Canadian borders. This means that the U.S. government turns away asylum seekers from any country who enter through those borders. The Trump Administration adopted the policy in the putative interest of public health--reducing transmission of COVID-19--and purported to use CDC's authority to implement it. But the policy was widely seen as an effort simply to reduce and deter immigration through the Mexican border. Absent the policy, an individual who enters the U.S. even without authorization is entitled to apply for asylum in the U.S.

Today's moves started with a November 15 decision of the U.S. District Court for D.C. that the Title 42 policy violated the Administrative Procedure Act and set a deadline for Wednesday for the government to halt the program. A group of states sought to intervene in the appeal, but the D.C. Circuit said on Friday that they were too late. The states then applied to Chief Justice Roberts for a stay of the district court ruling. Chief Justice Roberts granted the stay, but put the case on a super-fast briefing schedule, suggesting that the Court could rule quickly on whether to stay the district court's ruling pending appeal and possibly take up the case itself.

Mixed Immunity Ruling in Fourth Circuit Prisoner Failure-to-Treat Claim

The Fourth Circuit issued a mixed ruling on qualified immunity to two different doctors, with very different roles, in a prisoner's Eighth Amendment failure-to-provide-adequate-treatment claim. The court also ruled that the treating physician enjoyed sovereign immunity from the prisoner's medical-malpractice claim.

The case, Pfaller v. Amonette, arose when a prisoner died from liver cancer after prison doctors failed to treat his hepatitis C. The plaintiff alleged that one of those doctors, Amonette, designed treatment guidelines that excluded the prisoner from receiving treatment. The plaintiff alleged that the other doctor, Wang, failed to provide necessary treatment.

The court ruled that Wang did not enjoy qualified immunity, but Amonette did. The court said that Wang failed to refer the prisoner for additional testing after his blood numbers showed that he qualified. The court rejected Wang's argument that he simply made a mistake. And it rejected his argument that the constitutional right wasn't clearly established at the time. On this last point, the court said that the relevant right was the right to receive adequate medical treatment free from deliberate indifference--and not the right (as Wang claimed) to schedule a specific type of follow-up test at a particular time. The court noted that the right to receive adequate medical treatment was well established.

In contrast, the court said that Amonette didn't interact with the prisoner at all, but instead "created a system of prioritization where the sickest inmates received treatment first." The court said that this prioritization was consistent with standards of the medical community and the Federal Bureau of Prisons when resources are limited. The court also noted that "various Courts of Appeals opinions have cut different ways regarding whether similar treatment guidelines pass constitutional muster or violate clearly established law." The court said that this "gray area" itself was enough to protect Amonette.

Finally, the court held that while Wang didn't enjoy qualified immunity from the Eighth Amendment claim, he did enjoy sovereign immunity (as a government employee, doing the government's work) from the medical-malpractice claim.

Officers Who Rely on Judgment of Jail Medical Unit Get Qualified Immunity, Seventh Circuit Says

The Seventh Circuit ruled that corrections officers who were tasked with transferring a pretrial detainee out of a county jail's medical unit enjoyed qualified immunity from the detainee's estate's civil rights suit for his death, because they relied on the judgment of jailhouse medical staff.

The ruling ends this part of the estate's lawsuit against the officers.

The case, McGee v. Parsano, arose when a diabetic detainee exhibited symptoms commonly associated with diabetic ketoacidosis, but was refused medical treatment because a jailhouse nurse thought he was faking. The detainee then died.

The detainee's estate sued officers who were tasked with transferring the detainee out of the medical unit just before his death. (The estate sued the medical staff, too, but that's not at issue in this case.)

The Seventh Circuit ruled that the officers enjoyed qualified immunity from the suit, because they relied on the judgment of medical staff in declining to provide treatment.

[C]orrections officers are not constitutionally obligated to override the judgment of medical professionals unless they have reason to know that an inmate is receiving inadequate treatment. This remains true even when an inmate is in obvious distress and even when the medical staff has misdiagnosed an inmate--or worse, accused him of faking a very real illness. * * * [A] corrections officer may trust jail medical professionals to provide inmates with appropriate medical care. There is accordingly no legal basis for McGee's contention that at the time of Carter's death, the law was clearly established in her favor.

No Bivens Cause of Action for "Systemwide" Conditions-of-Confinement Claim, Fourth Circuit Says

The Fourth Circuit ruled that a federal prisoner did not have a Bivens cause of action for a conditions-of-confinement claim under the Eighth Amendment. The ruling means that the prisoner can't sue federal officers for monetary damages for the Eighth Amendment violations that the prisoner alleged.

The ruling specifically follows, and is consistent with, the Supreme Court's hyper-narrowing and all-but-overruling Bivens in recent Terms.

The court in Tate v. Harmon said that the prisoner's claims arose in a "new context," and that "special factors" counseled hesitation in extending Bivens. Following the Supreme Court, the Fourth Circuit acknowledged the overlap in the two questions, and summarized them together:

In explaining above why Tate's claim arises in a "new context," we noted that his claim seeks to impose liability on prison officials on a systemic level, implicating the day-to-day operations of prisons, affecting the scope of the officials' responsibilities and duties, and implicating policy, administrative, and economic decisions. Determinations about the temperature at which to keep cells, the level of cleanliness at which prison employees or inmates themselves are to maintain cells, the adequacy of toilet paper and toothbrushes, and the length and thickness of mattresses are usually the subject of systemwide executive regulations. Moreover, providing a damages remedy for such inadequacies would involve not only decisions of acceptable human needs but also judgments regarding prison staffing levels, economic considerations, and the most efficient procedures for addressing the inadequacies. . . . We conclude that in this context, the political branches are indeed "better equipped to decide whether existing remedies should be augmented by the creation of a new judicial remedy." This is especially so because we are ill-suited to "predict the systemwide consequences of recognizing a cause of action under Bivens," and even our "uncertainty" on that question "forecloses relief."

Check it Out: Kalhan's Judicial Illiberalism

Anil Kalhan, Judicial Illiberalism: How Captured Courts are Entrenching Trump-Era Immigration Policies, 27 Bender's Immigration Bulletin 1971:

When President Joe Biden took the oath of office, expectations ran high for major changes in immigration policy. While Biden’s predecessor had implemented the most far-reaching anti-immigration program in nearly a century, the Trump presidency never garnered strong public or congressional support for its immigration restrictionist initiatives. Even as xenophobia rapidly took hold among many within the Republican Party’s political, media, and legal elites, polls steadily found that substantial majorities of Americans opposed the Trump immigration agenda. With this reservoir of popular support, Biden forcefully pledged as a candidate not only to take “urgent action to end the Trump Administration’s draconian policies,” but also to restart “the work of building a fair and humane immigration system.” And within hours of assuming office, his administration began dismantling Trump’s legacy.

More than one-and-a-half years later, the Biden administration’s progress in rolling back Trump’s anti-immigration legacy has been decidedly uneven. While some of the responsibility lies squarely with the White House itself, no less disquieting have been the ways in which right-wing politicians have enlisted a phalanx of reliably partisan Trump-appointed judges to actively subvert Biden’s immigration agenda. Together with other conservative judges, these Trump appointees have demonstrated an eagerness to perpetuate the anti-immigration policies of the candidate who voters decisively rejected in 2020, often deploying irregular methods and suspect legal reasoning to do so. The manner in which these judicial appointees have kneecapped the Biden immigration agenda offers a revealing window into how a federal judiciary increasingly captured by conservative extremists may continue to operate as an active, enthusiastic collaborator in efforts to entrench illiberal, antimajoritarian power and right-wing policies, across a range of substantive domains, for years to come.