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 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.

Trump Argues for Absolute Immunity in SCOTUS Case

Former President Donald Trump filed his brief yesterday in his immunity claim in the January 6 criminal case now before the Supreme Court. As expected, he argued for absolute immunity for a former president from criminal liability for acts within the outer perimeter of the president's responsibilities.

The key points are by now familiar (even if, well, er, novel):

• Courts can't review acts of the president (going back to cherry-picked language from Marbury v. Madison);
• The president enjoys absolute immunity from civil liability for acts within the outer perimeter of the office (from Nixon v. Fitzgerald);
• Therefore, even more so, a former president enjoys absolute immunity from criminal liability for acts within the outer perimeter of the office.

Trump adds that a former president can be prosecuted, but only after impeachment in the House and conviction in the Senate. He says that this absolute immunity is essential to allow a sitting president to act without worry of future criminal prosecution.

(If you want to see a different perspective on these claims by a neutral decisionmaker, here's the D.C. Circuit's ruling.)

Trump adds that even if he's not absolutely immune, the Court should read the criminal statutes in the January 6 indictment as not applying to the president, because they don't contain a clear statement applying to the president. (Trump imports this idea from Franklin v. Massachusetts.)

Just to be clear: Trump's claims are truly extraordinary, and come with chilling implications. Recall that his attorney argued in the D.C. Circuit that a president could order the military to assassinate a political rival with impunity, unless and until that president were impeached by the House and convicted by the Senate. Mercifully, Trump didn't repeat that claim in his briefing at the Supreme Court. But he also didn't disavow it. And his logic inexorably supports it.

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.

 

Fifth Circuit Says President Can Impose Vaccine Mandate on Guardmembers, but not Punish Them for Noncompliance

The Fifth Circuit ruled that President Biden likely lacked authority to enforce a federal COVID vaccine mandate on state national guard members who aren't called up for federal service. The ruling gives state governors broad authority to decline to enforce (and thus undermine) certain federal readiness requirements on state national guard members.

The case, Abbott v. Biden, tested the federal government's authority to punish not-called-up state national guard members for failing to comply with the federal COVID vaccine requirement. (Everybody agreed that the federal government could punish national guard members who are called up to federal service. But that wasn't at issue in the case.) Governor Abbott argued that President Biden lacked authority to punish, and that punishment was arbitrary and capricious in violation of the Administrative Procedure Act.

The Fifth Circuit ruled for Abbott. The court said that under the Constitution's militia clauses, the President can impose a vaccine requirement, but the President can't punish not-called-up guard members for noncompliance. The court's analysis turned on the language of the "organizing clause," which says (with emphasis),

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

The court held that only the states, and not the federal government, could enforce the vaccine mandate against not-called-up guard members, because enforcement is part of "governing." The court said that enforcement is not part of "disciplining" (which would have allowed the federal government to enforce even against not-called-up guard members), because "disciplining" at the founding meant educating and instructing, not enforcing or punishing.

As to the APA issue, the court remanded the case for further consideration of whether federal punishment was arbitrary and capricious in light of Abbott's argument that punishing guard members would undermine the guard's ability to do its job. The court quoted Abbott's argument:

Guardsmen are not mere supplement to the federal military, but a vital part of each State's ability to secure its citizens' property, liberty, and lives--a vitality that is sapped by drumming Guardsmen out of militia service [as punishment for failure to take the vaccine]. The Defendants' failure to weigh those considerations before upending the Texas National Guard's chain of command requires that the Enforcement Memoranda be set aside.

The Trump Indictment

Here it is, alleging that former president Trump unlawfully retained documents related to the national defense and conspired to obstruct justice, among other things. There's quite a lot in it, but here are some highlights:

3. The classified documents TRUMP stored in his boxes included information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack. The unauthorized disclosure of these classified documents could put at risk the national security of the United States, foreign relations, the safety of the United States military, and human sources and the continued viability of sensitive intelligence collection methods.

6. On two occasions in 2021, TRUMP showed classified documents to others, as follows:

a. In July 2021, at Trump National Golf Club in Bedminster, New Jersey ("The Bedminster Club"), during an audio-recorded meeting with a writer, a publisher, and two members of his staff, none of whom possessed a security clearance, TRUMP showed and described a "plan of attack" that TRUMP said was prepared for him by the Department of Defense and a senior military official. TRUMP told the individuals that the plan was "highly confidential" and "secret." TRUMP also said, "as president I could have declassified it," and, "Now I can't, you know, but this is still a secret."

b. In August or September 2021, at the Bedminster Club, TRUMP showed a representative of his political action committee who did not possess a security clearance a classified map related to a military operation and told the representative that he should not be showing it to the representative and that the representative should not get too close.

7. . . . TRUMP endeavored to obstruct the FBI and grand jury investigations and conceal his continued retention of classified documents by, among other things:

a. suggesting that his attorney falsely represent to the FBI and grand jury that TRUMP did not have documents called for by the grand jury subpoena;

b. directing defendant WALTINE NAUTA to move boxes of documents to conceal them from TRUMP's attorney, the FBI, and the grand jury;

c. suggesting that his attorney hide or destroy documents called for by the grand jury subpoena;

d. providing to the FBI and grand jury just some of the documents called for by the grand jury subpoena, while claiming that he was cooperating fully; and

e. causing a certification to be submitted to the FBI and grand jury falsely representing that all documents called for by the grand jury subpoena had been produced--while knowing that, in fact, not all such documents had been produced.

District Court Rebuffs Challenge to Private Securities Regulator

The D.C. District ruled that a securities firm failed to show that the Financial Industry Regulatory Authority was likely unconstitutional. The court denied the firm's motion for a temporary restraining order against FINRA enforcement action.

The arguments against FINRA play on familiar separation-of-powers themes that the Supreme Court has developed and used in recent Terms to limit the power of administrative agencies. But those arguments haven't gained traction in challenges to FINRA, and the D.C. District's ruling in Scottsdale Capital Advisors v. FINRA aligns with other federal courts that have ruled FINRA constitutional.

FINRA is a private corporation that's responsible for regulating broker-dealers in the securities industry. Under the Securities and Exchange Act, FINRA enforcement actions are subject to internal review and appeal, and de novo appeal to the SEC. If the SEC rules against a firm, the firm can seek judicial review.

In this case, FINRA initiated enforcement action against Alpine Securities Corporation. Alpine moved for a TRO, arguing that FINRA was unconstitutional on several grounds. In particular, Alpine claimed that FINRA's double-insulation structure impermissibly encroached on executive authority, that FINRA board members are "officers" who haven't been validly appointed, that the Exchange Act improperly delegates lawmaking power to FINRA, that FINRA's proceedings violate due process and the right to a jury, and that forced association with FINRA violates the First Amendment.

The district court rejected all but the First Amendment claim on the ground that FINRA's not a state actor. (As to private non-delegation, the court said that the Act didn't impermissibly delegate lawmaking power to a private entity, because FINRA is subject to SEC control. But even assuming FINRA were a state actor, the court said that the Exchange Act didn't delegate lawmaking authority in violation of the non-delegation doctrine, because the Act gave FINRA "intelligible principles" to act.)

As to Alpine's First Amendment claim, the court said that the government had "a significantly compelling government interest embodied in the Exchange Act to justify mandatory FINRA membership": "to 'prevent fraudulent and manipulative acts and practices, promote just and equitable principles of trade, foster cooperation and coordination' among all industry players, 'remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest."

Public Employee Union Case Against Debt Ceiling Set for Hearing

U.S. District Judge Richard Stearns (D. Mass.) set a May 31 hearing date in the case brought by a public employee union challenging the constitutionality of the Debt Limit Statute.

The complaint in National Association of Government Employees v. Yellin alleges that

[t]he Debt Limit Statute is unconstitutional because it puts the President in a quandary to exercise discretion to continue borrowing to pay for the programs which Congress has heretofore duly authorized and for which Congress has appropriated funds or to stop borrowing and to determine which of these programs the President, and not the Congress, will suspend, curtail, or cancel altogether.

The plaintiffs argue that under the Anti-Deficiency Act, "the President does not have authority to suspend or cancel any laws or any programs that are, in fact, funded by Congress." Yet "the Debt Limit Statute has a retroactive effect and requires a reduction of operations of government approved by Congress, with no legislative direction as to which obligations to cancel."

In plain English, under the Anti-Deficiency Act and the Constitution the President must spend money validly appropriated by Congress, but the Debt Limit Statute (without raising the debt ceiling) prohibits the President from spending money appropriated by Congress. Given this reality, and given that the Fourteenth Amendment prohibits any person from questioning the validity of the public debt, "the Debt Limit Statute necessarily confers upon the Defendant President the unlawful discretion to cancel, suspend, or refuse to carry out spending approved by Congress, without the consent or approval of Congress as to how the President may do so, in order to pay the bondholders."

This approach doesn't hang its hat on the Fourteenth Amendment, at least not alone. Instead, it draws principally on the separation of powers--Congress's power to appropriate public funds, and the President's responsibility to spend those funds. The complaint say that if the Debt Limit Statute interferes with the President's duty to enforce congressional spending measures, then it's unconstitutional.

SCOTUS Stays District Court Title 42 Ruling, Sets State Intervention for Argument

The Supreme Court stayed a district court ruling that vacated the Trump Administration's Title 42 policy and set states' motion for intervention in the case for oral argument in the February sitting.

The ruling means that the Title 42 policy can stay in place, and that the Court will rule later this year whether twelve states led by Republican attorneys general can intervene in the case on the merits.

We last posted here.

The case arises out of the Trump Administration's Title 42 policy, which turned away immigrants--including immigrants who were entitled to apply for asylum--because the Administration determined under federal law that immigration posed a "serious danger" of "introduc[ing]" a "communicable disease." A district court ruled the policy invalid, however, and halted it. States then moved to intervene, arguing that the Biden Administration wouldn't sufficiently defend it on appeal. (The Biden Administration, in fact, is appealing the district court ruling. But it also moved to halt the policy earlier this year, saying that it's no longer justified. In other words, the government is saying that the Trump Administration had authority to implement Title 42 in the first place, and that it has authority to revoke it now that it's no longer necessary and justified. The states take all this as evidence that the Biden Administration won't sufficient defend the policy on appeal.) But they moved quite late, and the D.C. Circuit rejected their motion. They then applied to the Supreme Court for expedited review of the D.C. Circuit's denial, and a stay of the district court's ruling striking the policy.

The Court granted both requests. It stayed the district court's ruling (which allows Title 42 to remain in place) and set the states' motion for intervention for oral argument in its February sitting. The Court ordered the parties to brief this single question: Whether the State applicants may intervene to challenge the District Court's summary judgment order.

Justices Sotomayor and Kagan noted without comment that they'd deny the application. Justice Gorsuch dissented, joined by Justice Jackson, arguing that the Court need not, and should not, get involved in this dispute, at least on an expedited basis. He wrote that there's no rush to determine whether the states can intervene in this dispute over a policy that everyone agrees has "outlived its shelf life" (because it's no longer justified by COVID).

The Court's ruling specifically says that it "does not prevent the federal government from taking any action with respect to [the Title 42 policy]." But another case does, at least for now: A different federal district court ruled in an entirely different case that the Biden Administration's revocation of the Title 42 policy was unlawful. The Administration appealed that ruling to the Fifth Circuit (where the case is pending). In the meantime, the Administration considers itself barred from revoking Title 42.

All this means that Title 42 remains in place, even though everyone seems to agree that it's no longer justified by COVID.

SCOTUS to Hear Biden Loan Forgiveness Case

The Supreme Court today agreed to hear a case challenging the Biden Administration's federal student loan forgiveness program. The case comes to the Court on the government's application to vacate the injunction halting the program entered by the Eighth Circuit. We last posted here.

The Court will hear oral argument on the program in February. In the meantime, the Eighth Circuit's injunction stays in place. The Court gave no clue as to its thinking on the merits in its brief order.

No Absolute Immunity for Trump for January 6 Activities

Steven D. Schwinn, University of Illinois Chicago School of Law

Judge Emmet G. Sullivan (D.D.C.) ruled this week that former President Donald Trump does not have absolute immunity from a civil-damage lawsuit for his behavior related to the insurrection on January 6. The ruling came in an order granting the plaintiffs' motion to file a second amended complaint in a lawsuit against Trump and others for interfering with the electoral count. In other words, it's not a final ruling on the merits; it just means that portions of the case against Trump can move forward.

The court held that Trump's activities leading up to and on January 6 in an effort to disrupt the electoral count were not within the "outer perimeter" of his official duties as president, and therefore, under Nixon v. Fitzgerald, he did not enjoy absolute immunity from civil-damage claims based upon those activities. The court held that Trump's activities were political, not official, because they "entirely concern his efforts to remain in office for a second term."

The this is now the third time that the D.C. district held that Trump's January 6-related activities were outside the scope of his official duties. See Thompson v. Trump (also denying absolute immunity) and United States v. Chrestman (rejecting a defense in a criminal case against a January 6 insurrectionist).

Can the Biden Administration Issue Guidelines that Prioritize Immigration Enforcement?

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court will hear oral argument tomorrow in United States v. Texas, the case testing whether the Biden Administration's guidelines that prioritize immigration enforcement violate federal law. Here's my Preview, from the ABA Preview of United States Supreme Court Cases, with permission:

Case at a Glance

In September 2021, the Department of Homeland Security issued Guidelines that set priorities for the enforcement of federal immigration law. In particular, the Guidelines prioritized three classes of noncitizens for “apprehension and removal”: (1) noncitizens who pose “a danger to national security,” for example, suspected terrorists; (2) noncitizens who pose a “threat to public safety, typically because of serious criminal conduct”; and (3) noncitizens who pose a “threat to border security,” that is, noncitizens who arrived in the United States after November 1, 2020. DHS set these priorities because Congress has not allocated sufficient resources for the agency to apprehend and remove all removable noncitizens. Texas and Louisiana sued to halt the Guidelines. The district court ruled in their favor and vacated the Guidelines nationwide. The Fifth Circuit and the Supreme Court both declined to stay that ruling pending appeal.

INTRODUCTION

Federal immigration law, by its plain terms, requires the Department of Homeland Security (DHS) to apprehend and remove removable noncitizens in certain circumstances. But given limited resources, DHS must exercise judgment in complying with those requirements. Moreover, the law generally grants executive officers some discretion in how they enforce the law. This case pits federal immigration law against those enforcement realities. But before we even get to the merits, this case raises significant questions over the states’ standing to sue, and whether the district court had authority to vacate the Guidelines nationwide.

ISSUES

1. Do states have standing to challenge government Guidelines that set priorities for the enforcement of federal immigration law?
2. Do the federal Guidelines violate the substantive provisions of immigration law?
3. Did the district court have authority to vacate the Guidelines?

FACTS

In September 2021, the Secretary of Homeland Security issued Guidelines for the Enforcement of Civil Immigration Law (Guidelines). The Guidelines set priorities for the “apprehension and removal” of noncitizens by Immigration and Customs Enforcement (ICE). The Secretary explained in an accompanying memo (the Considerations Memo) that the Guidelines were necessary because “there are more than 11 million undocumented or otherwise removable noncitizens in the United States,” yet DHS lacked “the resources to apprehend and seek the removal of every one of these noncitizens.” (We refer to the Guidelines and the Considerations Memo together as the “Guidelines” below.) In other words, Congress has allocated just a fraction of the resources that the Department of Homeland Security (DHS) would need to apprehend and remove every noncitizen who is deportable under the law, and the agency therefore needs to make choices in how it prioritizes enforcement. (The Guidelines apply only to “apprehension and removal.” They do not apply to “detention and release determinations” for noncitizens already in DHS custody.)

The Guidelines prioritize three classes of noncitizens for “apprehension and removal”: (1) noncitizens who pose “a danger to national security,” for example, suspected terrorists; (2) noncitizens who pose a “threat to public safety, typically because of serious criminal conduct”; and (3) noncitizens who pose a “threat to border security,” that is, noncitizens who arrived in the United States after November 1, 2020. In determining whether a noncitizen poses a threat to public safety, the Guidelines call for an assessment based on “the totality of the circumstances,” and not “bright lines or categories.” The Guidelines set “aggravating factors” that weigh in favor of enforcement, including “the gravity of the offense” and the “use of a firearm.” They also set “mitigating factors,” including “tender age” and military service.

The Guidelines, by their own terms, are discretionary. The Guidelines do “not compel an action to be taken or not taken in any particular case.” Instead, they leave “the exercise of prosecutorial discretion to the judgment of” ICE officers. And while they provide for supervisory review of a line-officer’s enforcement decision, the Guidelines do not “create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.” The Secretary’s Considerations Memo explained that the Guidelines are “consistent with” and “do not purport to override” two statutory provisions that require that certain noncitizens remain in detention during removal proceedings or while awaiting removal.

Texas and Louisiana sued to halt the Guidelines. (The states previously sued to halt earlier versions of the Guidelines. But that case was dismissed when the Secretary issued the final version of the Guidelines in September 2021.) The district court ruled for the states and vacated the Guidelines nationwide. The United States Court of Appeals for the Fifth Circuit denied a stay of the district court’s order pending appeal. The Court also denied a stay pending appeal, and agreed to hear the case.

CASE ANALYSIS

This case raises three distinct issues. Let’s examine them one at a time.

Standing

Before we even get to the merits, the government argues that the states lack standing to sue, because the states have not suffered a sufficiently direct harm. The government says that the states have alleged only that the Guidelines will require them to spend more on law enforcement and social services. But the government claims that these kinds of indirect harms are never enough for states to sue the government. (If they were, states could sue the government over any number of federal policies and programs.) Moreover, the government asserts that the states lack standing, because, as a general matter, a third party that is not subject to prosecution itself lacks standing to sue the government over its prosecutorial decisions. Finally, the government contends that the Guidelines will not necessarily lead to increased costs for the states, because they only prioritize enforcement given limited resources (and do not cut overall enforcement under limited resources).

The states counter that they have standing, because the Guidelines caused them to “bear costs related to law enforcement, recidivism, healthcare, and education,” as the district court concluded. The states say that this position is not unbounded, as the government contends. Instead, they assert that their position requires states to demonstrate the same standing requirements as other litigants, “albeit with some amount of special solicitude under certain circumstances owing to their unique place in the federal system.” The states contend that the government’s position would upend the Court’s longstanding approach to state standing by making states “disfavored litigants.”

The Guidelines’ Legality

In testing the legality of the Guidelines, two provisions of federal immigration law are principally in play. The first, at 8 U.S.C. § 1226(c), says that DHS “shall take into custody” noncitizens convicted of certain offenses when they are released from criminal custody and “may release” them “only” in limited circumstances. According to DHS, this means that these noncitizens “generally must remain in custody during the pendency of their removal proceedings,” unless their release is authorized by law or court order. But at the same time, DHS and its predecessor agency have consistently interpreted Section 1226(c) to retain the agencies’ “general prosecutorial discretion” to “choose not to pursue removal of such an individual in the first place.”

The second provision, at 8 U.S.C. § 1231(a)(1), says that DHS “shall remove” a noncitizen within 90 days after a final order of removal or other triggering event. Moreover, DHS “shall detain” such noncitizens during the 90-day removal period. “Under no circumstance” shall DHS release a noncitizen who is removable on certain criminal and national-security grounds. According to DHS, such a noncitizen “must remain detained for the duration of the removal period unless release is required to comply with a court order.”

The government argues that the Guidelines do not violate these statutory provisions. As an initial matter, it says that Section 1226(e) bars judicial review of the Guidelines. (Section 1226(e) prohibits review of the Secretary’s “discretionary judgment regarding the application of” Section 1226 and prohibits courts from “set[ting] aside any action or decision . . . regarding the detention or release of any” noncitizen.) It also says that Section 1231(h) precludes courts from requiring the government to comply with Section 1231. (Section 1231(h) reads, “Nothing in [Section 1231] shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States . . . .”)

Going to the merits, the government argues that the mandatory language in Sections 1226 and 1231 (“shall take into custody” and “shall detain”) do not override the general principal of law-enforcement discretion. The government says that this conclusion is supported by the context and history of those provisions and by the “longstanding practice spanning multiple Administrations.” According to the government, this conclusion especially holds when, as here, the government faces “perennial constraints on detention capacity.” Moreover, the government asserts that its prioritization was reasonable, and that the government sufficiently explained its reasons (and, contrary to the district court’s findings, adequately considered countervailing factors, like the risk of recidivism by non-prioritized noncitizens and the states’ interests).

Finally, the government argues that the Guidelines do not violate the requirements for notice-and-comment rulemaking under the Administrative Procedure Act (APA). The government contends that the Guidelines meet the exceptions for “general statements of policy” and rules of agency “practice” or “procedure” under the APA, and therefore do not require notice-and-comment procedures.  

The states counter that Sections 1226 and 1231 contain mandatory language that requires the government to detain nonimmigrants. They say that the Guidelines violate these plain requirements. Moreover, the states contend that the Guidelines are arbitrary and capricious in violation of the APA, because they fail “to consider important aspects of the problems that criminal aliens create, including recidivism and States’ reliance interests” on federal enforcement of immigration law. Finally, they assert that the government failed to comply with notice-and-comment procedures under the APA in issuing the Guidelines. They contend that these procedures are required, because the Guidelines “substantively changed a regulatory regime.”

The District Court’s Vacatur

The government argues first that the district court’s vacatur was improper under 5 U.S.C. § 706(2), a part of the APA that authorizes courts only to “hold unlawful and set aside” agency action. The government says that this provision “merely directs a court to disregard an unlawful agency action in resolving the case before it,” not to nullify or render it void. According to the government, this means that the district court only had authority to grant relief (like an injunction and declaratory relief) to the parties before it, and not to vacate the Guidelines nationwide.

The government argues that even if Section 706(2) authorized the district court’s nationwide vacatur, a provision in federal immigration law, 8 U.S.C. § 1252(f)(1), prohibits that relief in this context. Section 1252(f)(1) prevents courts (except the Supreme Court) from “enjoin[ing] or restrain[ing]” government immigration policies, except as they apply “to an individual alien against whom proceedings . . . have been initiated.” The government claims that the district court’s vacatur violates the plain terms of this provision, because it is not limited to the case of “an individual alien.”

The states counter that neither the APA nor Section 1252(f)(1) prevented the district court from vacating the Guidelines. As to the APA, the states say that the government’s position “that the APA does not authorize vacatur at all ignores text, context, and decades of practice and precedent.” Moreover, they say that Section 1252(f)(1)’s prohibition on court orders that “enjoin or restrain” government policies does not apply to vacatur. They contend that injunctive relief and vacatur “are different remedies with different consequences that require different showings.” For these reasons, the states say that the district court had full authority to vacate the Guidelines.

SIGNIFICANCE

On its face, this case tests whether the mandatory immigration enforcement provisions in federal law are, in fact, mandatory. The plain language of the law, read quite narrowly, seems to require DHS to apprehend and detain noncitizens in certain circumstances. But the broader context and history of the law, along with DHS’s limited resources and the reality of executive discretion in enforcing the law, allow for significant leeway in how DHS implements those provisions. This case tests the former against the latter.

Telescoping out, the case also tests a decades-long history of executive exercise of discretion in the enforcement of immigration law, including the apprehension and detention of deportable noncitizens. Administrations under presidents of both parties have long issued guidelines and priorities for immigration enforcement similar to the Guidelines at issue here. For very practical and immediate reasons, the government has issued guidelines and priorities in order to channel limited resources, which have been perpetually insufficient to apprehend and detain all deportable noncitizens. For only slightly less direct reasons, the government has issued guidelines and priorities in order to ensure fairness in immigration enforcement and to reflect important national interests, sometimes related to foreign affairs and national security. Reading the precise provisions narrowly and literally, and ignoring the broader context and history, as the states would have it, could dispense with the long-running and bipartisan exercise of discretion in immigration enforcement.

Telescoping out once more, this case is just one front in the increasingly partisan battles over immigration. In particular, the case is one among the several efforts that border states and certain Republican state officials are lodging, or have lodged, against immigration policies and practices by Democrats. As an effort in the courts (and not just in ordinary politics), this case raises important questions about the authority and role of the courts in this increasingly partisan arena. For example: Should the courts hear the states’ challenge to federal enforcement priorities when the states’ only harms are secondary, and may not be remedied by judicial relief, anyway? Is it appropriate for a single district court, hand-selected by the plaintiffs, to vacate the Guidelines nationwide?

Notwithstanding the multi-layered underlying issues, however, the case gives the Court several easy exit ramps. For one, the Court could rule that the states lack standing. For another, the Court could rule that the district court lacked authority to vacate the Guidelines nationwide. For a third, the Court could rule that the immigration provisions cited by the states themselves bar courts from halting government policy. Look for those justices who would prefer to stay out of this hot-button political dispute to lean heavily into these issues at oral argument.

 

The Disqualification Clause Clause: What is it? How does it work?

Steven D. Schwinn, University of Illinois Chicago School of Law

Now that Trump has formally announced his candidacy in the 2024 presidential election, there's renewed buzz about the application of the Disqualification Clause. Here's a very brief explainer, along with some resources to help sort out what it is, and how it works.

First, the easy part: what it is. The Disqualification Clause disqualifies certain individuals from holding state and federal offices. The Clause, in Section 3 of the Fourteenth Amendment, was enacted shortly after the Civil War in order to bar confederate officers from holding public office. But its terms continue to apply today. It reads,

No Person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may be a vote of two-thirds of each House, remove such disability.

Next, the harder part: how it works. The Clause itself raises several questions. For one, the Clause doesn't say how it's enforced, or who can enforce it. We do have some clues, though. We know that Congress can enact legislation "to enforce . . . the provisions" of the Fourteenth Amendment (under Section 5 of the Fourteenth Amendment). We know that "[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . ." (Art. I, Sec. 5.) And we know that state officials and even private individuals in some cases have authority to challenge the qualifications of candidates for state and federal offices by filing quo warranto lawsuits.

For another, the Clause doesn't specifically say whether it applies to the president. But there are clues: the weight of historical scholarship says that it does.

For a third, the Clause doesn't define "insurrection or rebellion" or "aid or comfort to the enemies thereof," and it doesn't say how to determine whether a person "engaged" in the former or "g[a]v[e]" the latter. Again, we have clues. We know that Congress can call forth the militia "to suppress Insurrection." And we know that Congress enacted the Insurrection Act, which authorizes the President to call up the armed forces and militia in response to "unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States [that] make it impracticable to enforce the laws of the United States by the ordinary course of judicial proceedings." Another part of the Insurrection Act authorizes the use of armed forces when insurrectionists "oppose[] or obstruct[] the execution of the laws of the United States or impede[] the course of justice under those laws." The Act holds accountable anyone who "incites, sets on foot, assists, or engages" in those acts.

As to "giv[ing] aid or comfort to the enemies," this may require some connection to a foreign and opposing government, not just a U.S. citizen opposing the U.S. government.

It seems clear that the January 6 insurrection was, indeed, an "insurrection or rebellion" under the Clause. And those who "incite[d], set[] on foot, assist[ed], or engage[d]" in that insurrection probably "engaged" in it for the purpose of the Clause.

But given the dearth of recent judicial precedent, we don't have a ton of contemporary judicial interpretation on enforcement. The Fourth Circuit earlier this year ruled that the 1872 Amnesty Act, which removed disqualification for confederate officers, did not remove disqualification for Madison Cawthorn in his bid for reelection to the House. The Eleventh Circuit ruled more recently that Marjorie Taylor Greene's case challenging a state process to determination disqualification was moot, because the process concluded in her favor. The best we have comes from a New Mexico state court that removed a county commissioner and prohibited him from seeking or holding any future office. That analysis is good, but it's just one court.

Rep. David Cicilline (D-RI) indicated last week that he's looking to introduce federal legislation that would ban Trump from the presidency. Other legislation is currently pending. In particular, H.R. 7906 authorizes the AG to investigate Section 3 disqualifications and pursue them in court.

CREW, which indicated earlier that it'd file to challenge Trump under the Disqualification Clause, issued letters to state AGs urging them to pursue quo warranto actions in their states. And FreeSpeechforPeople.org and Mi Familia Vota seek to garner public support for state AG actions to enforce the Disqualification Clause.

For more, here's a Congressional Research Service Legal Sidebar on the Clause.

AG Garland Appoints Special Counsel in 2020 Transfer-of-Power, Document Retention Investigations

AG Merrick Garland today appointed John L. Smith as special prosecutor in the investigations into efforts to interfere with the lawful transfer of power after the 2020 election and Trump's illegal retention of government documents at Mar-A-Lago. Smith is a former head of DOJ's Public Integrity Section and former chief prosecutor for the special court at the Hague.

The appointment means that the investigation and any criminal charges will now come from the special counsel, operating independently of ordinary DOJ channels. AG Garland likely made the appointment to avoid even the appearance of a conflict now that Trump declared his candidacy for the presidency in 2024. We don't know how quickly the special counsel will move, and we likely won't know that for some time. But the office isn't starting from scratch: it can pick up where DOJ left off its own investigations into these matters.

The appointment authorizes the special counsel to investigate these matters and to prosecute federal crimes that arose out of them. Neither investigation nor prosecution is limited to Trump (or anyone else). But the "authorization does not apply to prosecutions that are currently pending in the District of Columbia, as well as future investigations and prosecutions of individuals for offenses they committed while physically present on the Capitol grounds on January 6, 2021." As the appointment explains, those matters "remain under the authority of the United States Attorney for the District of Columbia."

Here's AG Garland's announcement; here's the actual appointment. Here's a link to the DOJ regs authorizing the appointment of a special counsel, and outlining their powers and processes.

In addition to investigation the insurrection and document retention, AG Garland's appointment letter and the regs authorize the special counsel to investigate "any matters that arose or might arise directly" from those investigations, including obstruction and perjury.

The special counsel will operate almost entirely outside the DOJ's chain of command. But that doesn't mean that AG Garland is necessarily bound to all the special counsel's decisions. 28 C.F.R Sec. 600.7(b) provides:

The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department. However, the Attorney General may request that the Special Counsel provide an explanation for any investigative or procedural step, and may after review conclude that the action is so inappropriate or unwarranted under established Department practices that it should not be pursued. In conducting that review, the Attorney General will give great weight to the views of the Special Counsel. If the Attorney General concludes that a proposed action by a Special Counsel should not be pursued, the Attorney General shall notify Congress . . . .

Moreover, special counsel staff are "subject to disciplinary action for misconduct and breach of ethical duties," and the AG can remove the special counsel "for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies."

Trump Replies in Special Master Case

Steven D. Schwinn, University of Illinois Chicago School of Law

Former President Trump filed his brief in the Eleventh Circuit case testing whether a district judge had authority to appoint a special master to review documents seized at Mar-A-Lago. Trump's arguments are familiar, largely already rejected, and unpersuasive.

A short history might help contextualize this:

Two weeks after the FBI seized documents that Trump illegally removed from the White House, transported to his private residence, and illegally stored there, Trump sued, seeking (extraordinary) "judicial oversight" of the government's review of the documents. A district judge appointed a special master to conduct that review. The government filed a notice of appeal and moved the district court for a partial stay of its order as it applied to documents bearing classified markings. The district court rejected the motion, but the Eleventh Circuit reversed. The Eleventh Circuit held that the government was likely to prevail, because everyone agreed that the search did not display a callous disregard for Trump's constitutional rights--"the foremost consideration" in determining whether the district court properly exercised jurisdiction in appointing the special master in the first place. The Supreme Court declined to vacate that ruling.

The Eleventh Circuit ruling went to the government's motion for a partial stay as the district court's order applied to classified documents. But the court's reasoning--that last part, that everyone agreed that the search (of all the documents, not just the classified documents) didn't display a callous disregard for Trump's constitutional rights--gave the government an opening to argue that the district court's original appointment of a special master was completely invalid. The government then argued (1) that the court lacked authority to appoint the special master at all, and (2) that the court lacked authority to stop the government from reviewing the documents pending the outcome of the special master review.

Trump's brief responds to the government's arguments. On the merits of the district court's appointment of the special master, Trump argues that the government's lack of callous disregard of his rights is not determinative, and that other equitable factors weigh in favor of the court's authority. As to the district court's order halting government review pending special master review, Trump argues that he's likely to succeed on the merits, because some of the documents are his, some are protected by privilege, and he automatically declassified any documents marked "classified" simply by treating them as unclassified documents. (He says that as president he had authority to declassify, and therefore he could declassify simply by thinking it).

Trump's arguments mostly rehash his claims that the courts have already flatly rejected. (Maybe that's why the court set oral argument for next Tuesday: easy case, easy ruling.) The brief--and Trump's entire case, from his original complaint--is simply an effort to drag out and frustrate the FBI's investigation, and even run the clock.

Eighth Circuit Halts Education Debt Forgiveness Program Pending Appeal

Steven D. Schwinn, University of Illinois Chicago School of Law

The Eighth Circuit granted a motion to stop the Biden Administration from implementing its student-debt forgiveness program pending appeal. The court just a few weeks ago granted an emergency motion for an administrative stay, to the same effect.

The ruling halts implementation of the program nationwide during the state's appeal. It's another setback for the loan-forgiveness program in the courts.

The court said, contrary to the district court, that the Missouri Higher Education Loan Authority had standing as a state agency, or, if not, because of "MOHELA's financial obligations to the State treasury, the challenged student loan debt cancellation presents a threatened financial harm to the State of Missouri." Moreover, "the equities strongly favor an injunction considering the irreversible impact the Secretary's debt forgiveness action would have as compared to the lack of harm an injunction would presently impose."

The court said that it couldn't limit an injunction to the plaintiff states, however, because MOHELA services loans nationwide, and because "tailoring an injunction to address the alleged harms to the remaining States would entail delving into complex issues and contested facts that would make any limits uncertain in their application and effectiveness."

Trump Sues to Halt January 6 Committee Subpoena, surprising nobody

Steven D. Schwinn, University of Illinois Chicago School of Law

As expected, former President Trump sued on Friday to stop the January 6's Committee's subpoena for his testimony and documents.

Trump objects to the subpoena on several grounds:

[T]he Committee did not issue the Subpoena to further a valid legislative purpose; the Subpoena is unwarranted because other sources can provide the information the Subpoena seeks; the Subpoena is broader than reasonably necessary; the Subpoena infringes on executive privilege; the Subpoena infringes President Trump's First Amendment rights; the Committee is not duly authorized; and the Committee lacks authority to issue subpoenas.

Just to be clear: These grounds are entirely spurious. Some are flat wrong, factually or legally or both. Others have been roundly rejected in the courts. Again and again. Still, Trump raises them.

For example, Trump argues that a former president is absolutely immune from compelled testimony. But his best source for this is a letter that President Truman wrote in response to a subpoena by the House Un-American Activities Committee. Every other authority he cites speaks to current, not former, presidents. The difference matters: the reason for the president's absolute immunity (if such immunity exists) is that Congress, by compelling testimony, could frustrate the current president's exercise of their Article II responsibilities (by taking the president away from their job), and thus undermine the separation of powers. This reason applies with far less force, if at all, to a former president. The reason's simple: a former president is no longer exercising Article II responsibilities. In any event, neither OLC nor the Supreme Court has definitively extended absolute immunity from compelled congressional testimony to a former president. And Congress obviously thinks it has the power. That counts for something.

Trump also argues that the subpoena doesn't serve a legitimate legislative purpose. This is a familiar trope in Trump team litigation. And it's failed consistently in the courts, including in court challenges to the January 6 Committee's authority.

The strategy--the same as always--is clear: Trump's trying to run the clock in hopes that the subpoena (and the entire Committee) go away with a new Republican Congress. Or, if not, stall in the courts as long as possible.

Judge Strikes Biden Student Loan Forgiveness

Steven D. Schwinn, University of Illinois Chicago School of Law

Judge Mark T. Pittman (N.D. Tex.) ruled that the Biden Administration's student-loan forgiveness program is unconstitutional. The Administration already said that it'd appeal.

Recall that the Eighth Circuit previously temporarily halted the program pending an appeal. At the same time, the Supreme Court declined to temporarily halt the program in a different case.

Judge Pittman's ruling is different than these, in that it isn't temporary. Instead, it "vacates" the program in its entirety.

The court ruled that the program violated the newly discovered major questions doctrine. The court said that the program involved a matter of "vast 'economic and political significance'" (because it'll "cost more than $400 billion"), yet Congress hadn't clearly authorized it in the HEROES Act. Under West Virginia v. EPA's major questions doctrine, the court said that the program is therefore unconstitutional.

That's striking, given that the HEROES Act plainly authorizes the Secretary of Education to "waive or modify" federal student loans "as the Secretary deems necessary in connection with a war or other military operation or national emergency." ("The term 'national emergency' means a national emergency declared by the President of the United States.") It's striking, too, because, unlike the West Virginia case, the Administration's action here doesn't impose a regulatory scheme. If the major questions doctrine reaches this program, it'll likely reach a whole lot of other programs that we might not necessarily have expected under West Virginia, too--programs where the president has statutory authority to declare an "emergency," or where an administration takes non-regulatory action. (And remember: the Court hasn't defined "economic and political significance." So we don't know how or whether that limiting principle would apply.)

The ruling is striking at an even more basic level, on standing. Under the standing rule, a plaintiff, in order to get into federal court, has to plausibly plead (1) that they've suffered a harm, (2) that the defendant's action caused the harm, and (3) that the plaintiff's requested relief will redress the harm. Here, the plaintiffs in the case didn't qualify for the full forgiveness. That was their "harm" for standing purposes. And they connected that harm to the forgiveness program, demonstrating causation.

Yet they asked the court to vacate the entire program (as opposed to remand to the Department to fix it so that they'd qualify). The court obliged, and, as a result, they (still) don't get forgiveness (and neither does anyone else). This seems counterproductive, at best, as a practical matter. But it also seems to play fast and loose with the third standing requirement, that the requested relief must redress the harm.