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.

D.C. Circuit Rejects Navarro Motion for Release Pending Appeal

The D.C. Circuit today rejected Peter Navarro's motion for release from prison pending his appeal.

Navarro, White House trade advisor to former President Trump, was convicted of contempt of Congress for defying a subpoena from the House committee investigating the January 6 insurrection. He was sentenced to four months imprisonment. The district court rejected Navarro's claim that he acted under executive privilege. But he appealed, and moved the D.C. Circuit to release him from his prison sentence pending his appeal.

The D.C. Circuit flatly rejected Navarro's motion. Among other things, the court said that Navarro's motion doesn't present a "substantial question of fact regarding the district court's finding that executive privilege was not invoked in this matter by former President Trump or the sitting President, and he therefore forfeited any such argument." Moreover, the court wrote that in any event there's no "close question," because the President didn't actually invoke the privilege. Next, the court asserted that even if executive privilege were invoked, Navarro "forfeited any challenge to the district court's alternative conclusion that dismissal of the indictment still would not be required because executive privilege is a qualified privilege that would be overcome by the imperative need for evidence." And the court noted that even if executive privilege applied, "it would not excuse his complete noncompliance with the subpoena." That's because "[a] properly asserted claim of executive privilege would not have relieved him of the obligation to produce unprivileged documents and appear for his deposition to testify on unprivileged matters."

Assuming any appeal to the Supreme Court doesn't happen or is similarly flatly rejected, Navarro will have to report to federal prison by Tuesday.

Con Law Experts Oppose Mayorkas Impeachment

A group of con law experts wrote to House Speaker Mike Johnson and House Homeland Security Chairman Mark Green that there's no constitutional justification for impeaching Secretary of Homeland Security Alejandro Mayorkas. Here's the gist:

Simply put, the Constitution forbids impeachment based on policy disagreements between the House and the Executive Branch, no matter how intense or high stakes those differences of opinion.

Yet that is exactly what House Republicans appear poised to undertake. The charges they have publicly described come nowhere close to meeting the constitutional threshold for impeachment. Their proposed grounds for impeaching Secretary Mayorkas are the stuff of ordinary (albeit impassioned) policy disagreement in the field of immigration enforcement. If allegations like this were sufficient to justify impeachment, the separation of powers would be permanently destabilized. It is telling that there is absolutely no historical precedent for the impeachment charges that House Republicans have articulated. To the contrary, on the rare occasions that Members of the House have proposed impeaching executive officials for their handling of immigration matters, the House has properly retreated from that grave step.

Court to Test CFPB's Funding Mechanism

The Supreme Court will hear oral arguments on Tuesday in CFPB v. Community Financial Services Association, the case testing whether CFPB's funding mechanism violates the Appropriations Clause. Here's my preview, from the ABA Preview of United States Supreme Court Cases (with permission):

ISSUE

Does the CFPB’s funding mechanism violate the Appropriations Clause, and, if so, was the Fifth Circuit right to vacate the Payday Lending Rule?

FACTS

In 2010, in response to the 2008 economic crisis, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act. Among many other things, the Act created the Consumer Financial Protection Bureau (CFPB) and vested it with authority to enforce over 18 federal statutes that were previously overseen by seven different agencies. Under the Act, the CFPB is an “independent bureau” within the Federal Reserve System.

In contrast to most federal agencies, which receive direct annual appropriations from Congress, the CFPB receives its funding directly from the Federal Reserve. Each year, the CFPB asks the Federal Reserve for funding in an amount up to 12 percent of the Federal Reserve’s operating expenses. The Federal Reserve, in turn, generates its budget through the operations of the Federal Reserve Banks. The Banks “buy and sell bonds and securities, receive fees for services provided to banks, credit unions and other depository institutions, and generate interest on loans to depository institutions.”

As part of the Act, Congress specified that the funds transferred to the CFPB “shall not be subject to review by” the House and Senate Appropriations Committees. But at the same time, the CFPB director must submit regular reports to and appear before other congressional committees to “justif[y]” the CFPB’s “budget requests of the previous year.” 12 U.S.C. § 5496(c)(2). Moreover, the Comptroller General (a congressional officer) must conduct annual audits of the CFPB and submit reports to Congress.

This unique funding mechanism is designed to help ensure that the CFPB can operate independently of political influences.

In 2017, the CPFB issued a final rule entitled “Payday, Vehicle Title, and Certain High-Cost Installment Loans” (the Payday Lending Rule). The Rule came in two parts. The first part prohibited lenders from making payday loans “without reasonably determining that consumers have the ability to repay the loans according to their terms.” 12 C.F.R. § 1041.4 (2018). (This portion of the Rule is called “the Underwriting Provision.”) The second part limited a lender’s ability to collect repayments through a borrower’s preauthorized account access. In particular, it prohibited lenders from trying to withdraw payments for loans from a borrower’s account after two consecutive withdrawal attempts failed for lack of sufficient funds. 12 C.F.R. § 1041.7. (This portion of the Rule is called “the Payment Provision.”) The CFPB later rescinded the Underwriting Provision, but ratified the Payment Provision and left it intact.

Two associations of companies regulated by the Payday Lending Rule sued the CPFB, arguing that the Payments Provision violated the Administrative Procedure Act and that it was invalid because the CFPB’s funding mechanism itself was invalid under several constitutional principles and provisions, including the Appropriations Clause. (In other words, because the CFPB was invalid, it’s Rule was invalid.) The district court ruled against the plaintiffs on all counts. The United States Court of Appeals for the Fifth Circuit reversed on the Appropriations Clause and vacated the Payday Lending Rule. (The Fifth Circuit ruled for the CFPB on the other counts.) This appeal followed.

CASE ANALYSIS

As a general matter, Congress has the power to appropriate and spend federal funds. The Appropriations Clause, in Article I, Section 9, Clause 7 of the Constitution, says, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . .” This case tests that Clause’s application to an executive agency that receives its funding from another executive agency, the Federal Reserve, which itself earns money through the operation of the Federal Reserve Banks (and not direct annual congressional appropriations).

The government argues first that the constitutional text, history, and precedent all support the CFPB’s funding mechanism. As to text, the government claims that the Appropriations Clause “does not limit Congress’s authority to determine the specificity, duration, and source of appropriations.” It contends that the Constitution’s “special restriction” on appropriations for the military—that “no Appropriation of Money” to raise and support an army “shall be for a longer Term than two Years,” Article I, Section 8, Clause 12—“confirms that the Constitution otherwise leaves it to Congress to determine the specificity, duration, and source of appropriations.” As to history, the government asserts that ever since the Founding the government has funded agencies through lump-sum appropriations and fees, assessments, investments, and similar mechanisms, particularly for financial regulatory agencies. As to precedent, the government says that “other than the Fifth Circuit below, no court has ever held that an Act of Congress violated the Appropriations Clause.”

The government argues next that the plaintiffs and the Fifth Circuit “fail[ed] to grapple with” these sources. The government contends that the plaintiffs and the Fifth Circuit rested their conclusion only on the argument that the CFPB’s funding mechanism is “unprecedented.” But the government says that this is wrong: “the CFPB’s funding mechanism accords with Congress’s longstanding practice of authorizing agencies to spend money indefinitely from sources other than annual appropriations.” Moreover, the government contends that the mechanism squares with statutes funding other financial regulators, like the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, and the Federal Reserve Board.

Finally, the government argues that even if the CFPB’s funding mechanism is flawed, the Fifth Circuit erred in vacating the Payday Lending Rule. Instead of vacating, the government says that the lower court should have “excised and severed any problematic provisions” in the CFPB’s funding mechanism, and ruled only that the CFPB couldn’t use those provisions to enforce the Payday Lending Rule going forward. (Under this approach, Congress could rewrite the CFPB’s funding mechanism, and the CFPB could then enforce the Payday Lending Rule.) The government claims that this would have been consistent with historical practices when courts rule that executive branch officials spend public money in excess of a congressional appropriation. And the government says that vacatur (as the Fifth Circuit ruled) could “inflict[] significant disruptions on the Nation’s economy and the consumers, financial institutions, regulators, and others who have reasonably relief on the CFPB’s past actions.”

The plaintiffs counter that the CFPB’s funding mechanism violates the Appropriations Clause, because Congress ceded away its power of the purse to the CFPB. “The CFPB’s funding . . . is not ‘drawn . . . in Consequence of Appropriations made by Law’ . . . but rather taken based on the agency’s say-so.” The plaintiffs contend that this is especially problematic, because it is hard-wired into federal law, and because this unique funding mechanism gives the CFPB both appropriations power and executive power—“combining the purse with the sword in the most dangerous manner.” The plaintiffs claim that the government offers no limit “that would prevent Congress from writing the President a blank check,” and that there there is no precedent in our history for such an agency. “Whether one looks back in time or down the slippery slope, the threat to separated powers and individual liberty is obvious.”

The plaintiffs argue next that the CFPB is wrong to say that text, history, and precedent support its funding mechanism. They claim that the CFPB’s funding mechanism isn’t a valid exercise of congressional authority; instead, “it is a void delegation of exclusive legislative power” to the executive branch. Moreover, the plaintiffs say, contrary to the CFPB’s examples, there is no precedent for “permanently eliminating all fiscal oversight from both the People’s Representatives and the People themselves.” The plaintiffs contend that the CFPB can only support its funding mechanism based on “out-of-context dicta” from the Court’s cases and deference to the political process. But as to deference, the plaintiffs assert that the CFPB’s structure itself has warped the political process.

Finally, the plaintiffs argue that the government is wrong to say that the Fifth Circuit shouldn’t have vacated the Payday Lending Rule. The plaintiffs claim that the government ignores the fact “that critical defects” in the CFPB’s funding mechanism “can be cured only through legislative revision.” Moreover, they say that the APA requires courts to “set aside” invalid rules. And they claim that the government is wrong to worry about any economic impacts of vacating the Payday Lending Rule, because the plaintiffs challenged the Rule before it went into effect.

 

SIGNIFICANCE

Given the CFPB’s broad jurisdiction over consumer financial protection laws, and given the sweeping nature of the Fifth Circuit’s ruling, this case could have enormous consequences. Just since the Fifth Circuit vacated the Payday Lending Rule, defendants in several other CFPB enforcement cases have moved to dismiss based on that decision. If the Court affirms the Fifth Circuit’s ruling, we can expect all defendants in CFPB enforcement actions to move to dismiss. Such a ruling could effectively decimate the CFPB, unless Congress creates a new funding mechanism, and quickly. (To state the obvious: this seems unlikely in the current political climate.)

Such a result would sharply curtail federal consumer financial protection. It could also shock or destabilize the entire financial industry. That’s because regulated corporations adjusted their activities based on CFPB regulations. If those regulations go away, regulated corporations will re-adjust, affecting consumers and the financial markets as a whole. The government provided this example in its petition for certiorari: “If . . . regulations [making adjustments and exceptions to certain mortgage-related disclosure requirements] were vacated, mortgage lenders would have to immediately modify the disclosures they give millions of consumers each year, and borrowers could seek to rescind certain mortgage transactions that had relied on regulatory disclosure exceptions.” Moreover, because the Fifth Circuit vacated a past agency action, a ruling upholding it could threaten other past actions by the CFPB, as well.

Outside the CFPB, a ruling for the plaintiffs could threaten the funding mechanisms for certain other federal agencies that regulate financial markets, even the Federal Reserve. While funding mechanisms for other agencies are not before the Court—and while the plaintiffs do not appear to challenge them in this case—a Court ruling that strikes the CFPB funding mechanism could reach downstream to other federal agencies in future cases.

This is not the first time that the CFPB’s structure has come before the Court. Just three years ago, the Court ruled that the Bureau’s structure—in particular, its single director, who could be fired by the President only for cause—impermissibly interfered with the president’s power as chief executive. Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020). (The CFPB director’s “for cause” protection was another way that Congress sought to insulate the CFPB from political influences.) Moreover, this case and Seila Law are part of a larger trend by litigants and the Court to restrict the power of federal administrative agencies. (Indeed, there’s another important case on the Court’s docket this Term, Loper Bright Enterprises v. Raimondo, not yet set for argument, which could limit agencies’ discretion to interpret and apply federal law.)

That said, this move—vacating a CFPB regulation based on the Bureau’s funding mechanism—may be a bridge too far for this Court. In addition to the reasons described above, I’ll add this: The Fifth Circuit’s ruling is, in fact, an extreme outlier for both its reasoning and its result. The D.C. Circuit and at least six district courts—every other court that considered the issue—ruled the other way.

Still, we’ve seen the Roberts Court in a variety of cases move aggressively to alter existing law; to effect significant political, social, economic, and environmental change; and to upset settled expectations in politics, the markets, and society. A ruling for the plaintiffs—based on a full-throated endorsement of the Fifth Circuit’s ruling, or based on some other more modest approach—shouldn’t be a surprise.

Colorado Voters Sue To Keep Trump Off Ballot

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

Supreme Court Strikes Biden Student-Debt Relief

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

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

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

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

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

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

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

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

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

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

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

 

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."

Trump Lawyers Gripe to House Intel Chair about Mar-a-Lago Docs Investigation

Former President Trump's lawyers wrote to House Intel Committee Chair Mike Turner to complain about DOJ's investigation into Trump's unlawful retention and mishandling of classified documents at Mar-a-Lago.

In a typo-ridden, ten-page letter, the lawyers argue, in short, that classified documents ended up at Mar-a-Lago because of a rushed document-review process at the end of the Trump presidency (and not because of any illegal behavior), that DOJ botched the investigation from its inception, and that the investigation is politically motivated. They argue that Turner's committee should take over (after an investigation and report by "the intelligence community") and seek "a legislative solution" to document-handling procedures for the White House and former presidents.

Then the lawyers write that "DOJ should be ordered to stand down." The letter doesn't specify who should do the ordering. But certainly the lawyers know this most basic separation of powers principle: A congressional committee cannot order DOJ stand down.

Court Curtails EPA Authority Under Clean Water Act

The Supreme Court today curtailed EPA's authority to regulate wetlands under the Clean Water Act. The sharply divided ruling is a victory for property owners and a blow to federal regulatory authority over certain wetlands.

The case, Sackett v. EPA, tested whether and how EPA could regulate wetlands that aren't connected on the surface to "waters of the United States." Five justices said that EPA could only regulate wetlands that are connected on the surface to "waters of the United States." (Two of the five would've limited the Act even further, so that EPA couldn't regulate any wetlands, unless they were actually navigable waters of the United States.) Four justices disagreed and argued that the CWA authorized EPA to regulate wetlands that were connected to waters of the United States, even if that connection wasn't on the surface.

All nine agreed that the lower court applied the wrong test.

The CWA prohibits the discharge of pollutants into "navigable waters," defined as "the waters of the United States" and waters that are "adjacent" to them. EPA regulations provide that "adjacent wetlands are covered by the Act if they 'possess a "significant nexus" to' traditional navigable waters." This means that wetlands are "adjacent" when they "neighbor" covered waters, even if the wetlands and the covered waters are separated by dry land.

The plaintiffs, Michael and Chantell Sackett argued that EPA's regulation violated the CWA when EPA ordered them "to restore the Site," including wetlands, after they backfilled their property to build a home.

The Court ruled for the Sacketts and agreed that EPA's regulation violated the CWA. The court held that the CWA authorizes EPA to regulate only those wetlands that are "as a practical matter indistinguishable from waters of the United States," such that it is "difficult to determine where the 'water' ends and the 'wetland' begins." This means that the CWA covers only those wetlands that have "a continuous surface connection to bodies that are 'waters of the United States' in their own right, so that there is no clear demarcation between 'waters' and wetlands." 

The Court said that EPA needs "clear [statutory] language" if it seeks "to significantly alter the balance between federal and state power and the power of the Government over private property." The Court said that the CWA (even its use of "adjacent") didn't provide this clear authority. The Court also said that EPA's interpretation "gives rise to serious vagueness concerns in light of the CWA's criminal penalties," because the EPA's interpretation may not define the statute "with sufficient definiteness that ordinary people can understand what conduct is prohibited" and "in a manner that does not encourage arbitrary and discriminatory enforcement."

Justice Thomas, joined by Justice Gorsuch, argued that the CWA is even narrower, extending only to actually navigable waters of the United States--those that are "capable of being used as a highly for interstate or foreign commerce." Under this approach, the CWA probably wouldn't apply to any wetlands. He tied this standard to Congress's Commerce Clause power, and then took aim at the Court's Commerce Clause jurisprudence, arguing that today it "significantly depart[s] from the original meaning of the Constitution."

Justices Sotomayor, Kagan, Kavanaugh, and Jackson argued (in separate concurrences) that the Court's approach erroneously narrowed the CWA. They argued that "adjacent" waters under the CWA include not just "adjoining" wetlands (as the majority would have it) but also "wetlands separated from a covered water only by a man-made dike or barrier, natural river, berm, beach dune, or the like." Justice Kavanaugh (joined by Justices Sotomayor, Kagan, and Jackson) argued for this more expansive reading. Justice Kagan, joined by Justices Sotomayor and Jackson, went further, arguing that the Court erred in creating and applying the plain statement rule and that the Court (once again) mangled an environmental statute in order to achieve its preferred policy objectives.

 

 

 

 

 

 

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

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

That's some chutzpah.

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

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

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

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

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.

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

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

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

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

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

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

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

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

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

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.

January 6 Committee Makes Criminal Referrals for Trump and Others

The January 6 Committee today made criminal referrals to the Department of Justice for former President Trump and others who were involved in the insurrection. The move is the first time that Congress has referred a former president for criminal prosecution.

But remember: the Committee's action doesn't have any formal legal significance, and it doesn't compel the Justice Department to act. Congress lacks that power. The Committee can simply make the referrals, turn over its findings . . . and hope that DOJ will move.

So why would the Committee go to the trouble of referring to DOJ? Most obviously, to pressure DOJ to move, and to highlight the significance of its own findings.

The DOJ is already investigating. The Committee's referrals might only light a fire under that investigation. The referrals have no formal legal significance.

The Committee's "introductory material" to its final report is here.

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

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

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

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

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

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.